New Policy Allows Guantanamo Officials to Seize and Read Detainees' Privileged, Legal Mail
by Jason Leopold
November 3, 2011
Attorneys defending some of the high-value detainees imprisoned at Guantanamo Bay are pushing back against a new policy implemented by Navy Rear Adm. David B. Woods, the commander of the prison facility, which calls for the seizure and review of the prisoners' legal mail and other materials from the top-secret camp where they are housed.
The policy was apparently enacted in early October, around the same time the Pentagon announced that Abd Al-Rahim Nashiri , the alleged mastermind of the October 2000 USS Cole bombing, would be arraigned on murder and terrorism charges. Nashiri's arraignment is scheduled for November 9.
On Tuesday, military attorneys representing six high-value detainees also facing military commissions, including the lawyer defending Nashiri, sent a letter to William Lietzau, deputy secretary of defense for detainee affairs, demanding he order Woods to "cease and desist the seizure, opening, translating, reading and reviewing of attorney-client privileged communications."
The nine military attorneys who signed the letter to Lietzau said they have not received responses to numerous other letters they had sent him over the past year about the seizure of legal mail, which they characterized as "illegal," and "detention practices" not in compliance with domestic and international laws. The attorneys warned that if these issues are not immediately dealt with they will litigate it "to the fullest extent."
A September 2008 protective order established the groundrules for attorney-detainee communications at Guantanamo, which included the handling of "legal mail."
"'Legal mail' means letters written between a detainees counsel and the detainee that are related to the counsel's representation of the detainee, as well as privileged docuemnts and publicly filed legal documents related to that representation," the protective order states.
A separate March 2011 protective order issued for high-value detainees facing military commissions, such as Nashiri, set the policy for the way "legal mail" would be handled by military personnel stationed at Guantanamo. The protective order notes that "legal mail," approved as such by military personnel who first review incoming documents from detainees' attorneys, is placed into a sealed envelope and delivered to a detainee. The envelope containing legal mail must be opened by military personnel in the presence of the detainee.
Two weeks ago, in response to Truthout's queries about the matter, Lt. Col. Joseph Todd Breasseale, a Defense Department spokesman, said Woods, who was named Joint Task Force Guantanamo commander in August, "directed that a security search be undertaken of detainee cells and materials in Camp 7," where the 14 high-value detainees reside.
"This security search is not in response to any particular security threat and does not involve detainees in other [Joint Task Force-Guantanamo] detention facilities," Breasseale told Truthout October 14.
He would not disclose why the "security search" was initiated.
"We will never discuss security apparatus or security protocols around detainees," Breasseale said.
The statement Breasseale provided to Truthout is identical--word-for-word--to the one the Department of Justice (DOJ) gave Stephen Truitt, an attorney who represents Yemeni citizen Hani Abdullah, when he inquired as to whether the policy would be extended to his client, who is not a high-value detainee.
Truitt sent an urgent email to DOJ civil division attorneys David Avila and Andrew Warden on October 14, stating that he learned Woods "has embarked upon the wholesale seizure and content examination (not merely for contraband such as paper clips etc.) of legal mail to at least one [high-value detainee] and that this procedure is to be extended to other prisoners in the other facilities."
Truitt wrote in his email that he objected to the "extension [of] any such procedure" to Abdullah and warned Avila and Warden that if Woods' "unlawful" "security search" is extended to his client "further steps will become necessary."
"I ask for your immediate confirmation that this procedure will not be visited on Mr. Abdullah," Truitt wrote.
Warden responded to Truitt via email on October 17. He said the "security search" was only aimed at the high-value detainees in Camp Seven.
Brent Mickum, an attorney representing Abu Zubaydah, the first high-value detainee captured after 9/11, said he, too, sent an email to the DOJ inquiring about the legal mail policy, but he never received a response.
"We have been notified that the prisoners at Camp Seven are in the process of being subjected to certain search procedures that may be unauthorized and/or improper," Mickum wrote, also on October 14, in an email he sent to DOJ attorney James Luh. "More specifically, we have been informed that cell searches are being conducted at Camp Seven, and that, as part of that process, a prisoner's legal mail and legal papers are being removed and reviewed and, if necessary, translated by [Department of Defense] personnel."
"Furthermore, we are informed that no procedures are in place to prevent the improper transfer of this information," Mickum added. "Please confirm whether or not any of our client's written materials have been removed from his cell. If so, please inform us whether those materials have been, or are scheduled to be returned to him. To the extent written legal materials were seized, please identify the materials reviewed, the indentity(ies) of the person(s) who conducted the review, and the alleged reason(s) for the review."
In an interview, Mickum said the "fact that the government is doing this is nothing new."
"My British clients [Bisher Al Rawi, Jamil El Banna and Martin Mubanga] had their legal mail seized and reviewed before it was ever provided to them," Mickum said. "That the government would take legal mail, read it, and not make any effort to protect sensitive information speaks volumes about what the Department of Justice and the Department of Defense think about the legal system. But what really shocks me is that at this late date this issue is still isn't resolved."
Two other DOJ attorneys, however, expressed concern about the new guidelines, stating in emails in response to questions by lawyers representing two detainees, that they were "unaware" and "surprised" it had been implemented and promised to "look into it."
The attorneys, who said they have not received any follow-up correspondence from the DOJ, requested anonymity and asked that Truthout not reprint the contents of the emails they received because they feared doing so, in addition to discussing the issue on-the-record, would strain their already fragile relationships with the DOJ and negatively impact their clients' cases.
A DOJ spokesman declined to comment for this story.
"Privilege Review Team"
Mark Denbeaux, the director of the Seton Hall Law Center for Policy and Research, who is also a member of Zubaydah's legal team and represents another high-value detainee, said he does not understand why high-value detainees' legal mail would be seized since the attorneys representing the prisoners are already under a strict protective order that requires a "privilege review team," a panel made up of Defense Department attorneys and intellgence officials as well as interpreters/translators, to scrutinize materials lawyers want to present to their clients.
"No document has ever made its way to a detainee from a lawyer without going through the privilege review team to determine if it is safe," Denbeaux said. "The question is, why now? Has the system that has been in place been abused in some way?"
Denbeaux and Christa Boyd Nafstad wrote about the privilege review team in an article titled "The Attorney-Client Relationship in Guantanamo Bay," published in 2006 in the Fordham International Law Journal.
"A 'privilege review team' will read all mail from the attorney before sending it to the client. The attorney is not allowed to write about anything concerning 'unnecessary outside information'"; if the correspondence contains anything the privilege team deems unnecessary, the letter will not be forwarded to the client," Denbeaux and Nafstad wrote. "Not only does this regulation inhibit meaningful dialogue between attorney and client, it also runs afoul of the United Nations Basic Principles on the Role of Lawyers, which states '[g]overnments shall recognize and respect that all communications and consultations between lawyers and their clients within their professional relationship are confidential.'"
The privilege team, attorneys say, also suppresses important information hindering their ability to do their jobs. For example, last week, the privilege review team declined to declassify and turn over to Zubaydah’s attorneys a power-of-attorney form he signed that authorized his legal team to file a lawsuit on his behalf against Lithuania for failing to reopen an investigation to determine the role its government played in Zubaydah’s rendition to a CIA black site prison located in the country and the torture he was subjected to there in 2005.
Moreover, Denbeaux said the Department of Defense and DOJ's statements, which indicated that the "security search" of high-value detainees' "cells and materials" was not ordered "in response to any particular security threat" concerned him.
"That is exactly what the government didn't say [in June 2006] when they justified seizing 50,000 pages of documents from detainees, including envelopes clearly marked 'attorney-client privilege," Denbeaux said.
The seizure of detainees' materials back then was a direct response to the three deaths that occurred on the island, which the Defense Department claims were suicides.
Guantanamo officials went to court justifying the unprecedented move, stating they needed to review the documents, including legal mail, to determine if there was a conspiracy that would result in mass suicides at the prison facility.
The documents were eventually returned to the detainees and the government filed a motion in federal court asking a judge to approve the creation of a "privilege team." The motion was granted in September 2006.
Denbeaux said even if Woods' policy is determined not to be a violation of the law it does "devastating harm to the attorney-client relationship."
"The client has no reason to trust the information he is providing to his attorney is not being abused," Denbeaux said.
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