Weeks after a Pentagon official asked for an eavesdrop-free attorney-client meeting place at the Guantánamo prison, the Army on Tuesday invited proposals for a pre-fab, hurricane-proof Detainee Legal Center whose specs include a court-approved “listening room” for attorney-client phone calls.
A sketch and accompanying specs for the new site envision six meeting rooms equipped with security cameras linked to a control room; a place for captives to make or receive telephone calls as well as “control and listening rooms.”
It also requires wheelchair accessibility, an apparent acknowledgment that one war court defendant has had multiple back surgeries this year and can walk only short distances.
Last month, the Pentagon’s Convening Authority for Military Commissions, Harvey Rishikof, appealed to the chief of the prison guard force to establish a “clean” facility to “provide assurances and confidence that attorney-client meeting spaces are not subject to monitoring.”
In the past, lawyers have discovered listening devices disguised as smoke detectors in Guantánamo’s Camp Echo legal meeting rooms; a prosecutor said soldiers mistakenly overheard legal meetings, and then something — the details are classified — happened over the summer to cause Chief Defense Counsel Marine Brig. Gen. John Baker to caution defense teams that no meeting site at the base guarantees attorney-client confidentiality.
“This clean facility would also be checked periodically to ensure compliance with confidentiality expectations by an independent team to ensure it remains free of listening and inappropriate monitoring devices,” Rishikof wrote in an 11-page action memo.
Attorney David Nevin, who represents the alleged 9/11 plot mastermind, sounded skeptical of the possibility that defense attorneys could have confidence in the integrity of confidential attorney-client conversations at Guantánamo.
“If such a thing can be constructed, then great. I’ve got my doubts,” he said. “In the end you sort of end up being in the position of having to trust people — and these people can’t be trusted. They have an abysmal record of disregarding rights.”
Navy Cmdr. Anne Leanos, the spokeswoman for the Joint Task Force that runs the Guantánamo prison, said by email Wednesday that “the JTF does not record or listen to attorney-client privileged conversations.”
A listening room is necessary at the new meeting site because the design envisions co-locating “court-established Privilege Team monitors” there, Leanos said, to listen in on phone calls between captives and attorneys who handle detainees’ unlawful detention suits, called habeas corpus petitions. For those calls, lawyers have been told for years that there’s no guarantee of confidentiality because prison staff listen in with the authority to cut the line, if a detainee mentions classified information.
In addition, Leanos said, the bureaucracy that reviews uncharged captives’ cases, called the Periodic Review Secretariat, also would use the telephone site, apparently to notify detainees of board decisions. “This facility shall be controlled by the JTF,” the prison spokeswoman said. “Other than the acknowledged Privilege Team monitoring, no listening or recording of attorney-client privilege meetings will occur.”
Rishikof’s request did not confirm the defense lawyers’ claims that their confidential meetings are being monitored, a violation of a bedrock legal defense principle of privacy.
But he made clear that the proposed new construction is meant to defuse an ongoing crisis in the USS Cole case sparked by the mass resignations of three civilian attorneys on ethical grounds. They declared they cannot ethically represent Abd al Rahim al Nashiri in the death-penalty case because of classified circumstances they are forbidden to describe.
The trial judge, Air Force Col. Vance Spath, disputes the existence of an ethical conflict and declared their resignations “null and void.” He also found the chief defense counsel in contempt of the war court for releasing the three lawyers from the case — and ordered the Marine general confined to his trailer park quarters for 21 days. Rishikof suspended the sentence on Day 2 to review it.
Then Rishikof proposed the new meeting site in a Nov. 21 decision that upheld Spath finding Baker in contempt of the war court but dismissed the last 19 days of Baker’s sentence and a $1,000 fine levied by the judge. Rishikof decided that jailing and fining the general “would have no significant deterrent or rehabilitative effect,” then focused his comments on the attorney-client crisis itself.
“A matter more imperative than my action in the contempt proceeding remains the underlying security concerns that led to the attempted resignation of counsel in the first place,” Rishikof wrote. “Until the issues of transparency are resolved in an unclassified forum, the case is unlikely to advance, even if new counsel are appointed, because new counsel might well assert identical attorney-client privilege ethical concerns.”
Defense lawyers have openly questioned whether even an independent sweep could be trusted in a climate where so much is classified at Guantánamo.
The idea of an independent sweep, said Nevin, is to “detect the presence of a signal. But I think it’s possible to turn a signal off, and after the sweep is over, to turn the signal back on.”
For now, he said, lawyers operate under the proposition that the privilege is violated and write out sensitive communications during meetings “because you don’t want to speak something that is really important to the defense, to defense strategy because you don’t want your opponent to have access to the thinking.”
At the prison, Leanos said the new solicitation invites would-be government contractors to submit price quotes. “Contracts are awarded upon review of quotes,” she said.