WASHINGTON—Imagine for a moment that you are an attorney working in an office full of other attorneys. The phones are tapped by the government, but you aren’t allowed to use cell phones. The government is potentially monitoring everything you do on the office computers, but you can’t to use your personal laptop for official work.
As for sending letters and court documents to your client in jail—the government gets first crack and a “cursory review” of each item before it reaches the cell.
Sounds like the old Soviet Union, or even another world. In a way it is—the world of the lawyers for the Office of Chief Defense Counsel for Military Commissions, whose clients are incarcerated at Guantanamo Bay.
Working from a Rosslyn, Virginia office across the Potomac River from the nation’s capital, this group of some 40 OCDC lawyers, civilian and military, is engaged in a standoff. They’ve refused to sign the user agreement required by the Department of Defense that consents to “the routine monitoring, interception and search” of “all communications using or data stored on” the Pentagon’s global computer network, which all DoD personnel—including the attorneys—use every day.
The lawyers charge that confidential information protected by attorney-client privilege is not safe from the government’s probing eye. According to several who spoke on the record with TAC, OCDC attorneys would be violating their own professional codes of ethics, and placing their membership to the bar at risk, if they were to accept such a breach of the attorney-client relationship. They would be putting their cases and clients in jeopardy.
“There are no constraints on the access [the government] has—it’s not access to certain portions of the network, they basically already have access to everything,” says defense attorney Lt. Col. Donna Lorraine Barlett. “By asking us to sign the user agreement, they want us to endorse a blank check on our client’s account.”
The attorneys’ refusal to sign the agreement, issued to them over a year ago, has not stopped DoD from carrying on network surveillance. And after extensive discussions with the Pentagon, Bartlett and her colleagues still can’t get answers to the most basic questions: who has access, what are they looking for, and where does the information wind up once it’s downloaded from the network?
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The situation raises questions about the integrity of the military-courts process instituted during the Bush years through the Military Commissions Act (MCA). In 2008, Barck Obama campaigned on closing the troubled Guantanamo Bay prison facility and providing civilian trials to its inmates. But last April the Obama administration announced it would instead try Khalid Sheikh Mohammed and four other alleged 9/11 conspirators in a military tribunal.
Previous terror cases that have gone before military tribunals—there have been only six convictions out of 800 Gitmo prisoners in 10 years—have been fraught with controversy. Defense attorneys and even prosecutors have quit in disgust, even retired from the military altogether, over a process they see as a deliberate subversion of the rule of law and the American Constitution.
“The military commission system is broken beyond repair,” said Lt. Col. Darrel J. Vandeveld, a former JAG (Judge Advocate General) reservist, as he testified before Congress in 2009 about his decisions to resign as a military-commissions prosecutor the year before. He said he quit because his team refused to pass along to defense attorneys evidence that might have helped exonerate their client, a Pakistani youth accused of participating in a grenade attack that injured two American soldiers.
The MCA’s provisions, he told Congress,
are illegal and unconstitutional, undermine defendants’ basic fair trial rights, create unacceptable risks of wrongful prosecution, place our men and women in uniform at risk of unfair prosecution by other nations abroad, harm the reputation of the United States, invite time consuming litigation before federal courts, and, most importantly, undermine the fundamental values of justice and liberty upon which this great country was founded.
“How are these commissions going to have any credibility in the world if it is not a real legal process? It’s supposed to be a trial, not an inquisition,” says Lt. Col. Barlett, who has been serving with the commissions since March 2011 and represents Ghassan al-Sharbi, a Saudi who has been at Gitmo for nine years despite the fact that all charges against him were dropped in 2008.
So far, al-Sharbi has refused counsel. Barlett is having hard time building trust with him—especially since she doesn’t trust the system herself.
“As attorneys, we have an obligation to uphold [the rule of law]. It’s the foundation of all rights. With this particular line of work, with the commissions, there is a lot of new law being created, new precedents. As a country, we need to get it right. If we don’t get it right, it would be very difficult for us to carry the banner of human rights,” says Barlett’s colleague Capt. Christopher Kannady, a defense attorney who has been to Afghanistan five times with the Marine Corps.
Captain Kannady is leaving the service for private practice. He will continue to work for his client, Noor Uthman Muhammed, as a civilian, but that won’t eliminate the possibility that the government is snooping on his case and creating barriers to effective—and protected—communications with his client.
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The defense attorneys say they are battling two encroachments today: electronic monitoring of all communications in the OCDC office, including telephones, and the reading of all legal mail that passes through the command at Guantanamo Bay to detainees.
Both practices, the lawyers argue, are direct violations of attorney-client privilege, which is enshrined in case law and by professional codes of conduct under all state bar associations and the military services.
Concerning network surveillance, the DoD says it reserves the right to “inspect and seize data stored” on its system and “disclose or use” such information for “any U.S. Government-authorized purpose.” According to the user agreement issued to defense attorneys in August 2010, the government “routinely intercepts and monitors communications” the DoD network for purposes “including, but not limited to, penetration testing, communications security (COMSEC) monitoring, network operations and defense, personnel misconduct (PM), law enforcement (LE), and counterintelligence (CI) investigations.” The Pentagon has a vast array pretexts for spying on attorneys.
The policy is being challenged by the legal team representing Abd al-Rahim Al-Nashiri, alleged mastermind of the terror attack against the USS Cole that killed 17 American sailors in 2000. He is currently on trial at Gitmo. The defense filed a complaint with the military judge in October, asking him to bar DoD from monitoring their computers and arguing that the present policy “destroys any reasonable expectation of privacy that the defense might have.”
“The ongoing and unfettered monitoring of defense counsel’s electronic files and communications undermines Mr. Al-Nashiri’s right to effective counsel in at least three respects,” the Oct. 27 complaint contends. “It forces counsel to choose between their ethical duties and preparing for trial. It chills the deliberative process that attorneys must undertake if they are to prepare an adequate defense. And most importantly it corrupts the trust that must exist between a client and counsel, especially when the client is facing the prospect of a death sentence.”
The team has asked DoD to create an “enclave” in the network, a confidential area with firewalls to limit access to a systems administrator working with the team. Any other monitoring by DoD for the reasons outlined in the user agreement should only be done “under defense supervision and control.”
In a written response to the Nashiri team’s complaint, the government said the “monitoring of defense’s information systems does not violate any applicable privileges nor the accused’s right to the effective assistance of counsel.”
The monitoring overall “ensures that any privileged information remains privileged, is not available to the prosecution, and may not be used against the accused in any way,” according to court documents filed in November. “Consent to the monitoring described in the [User Agreement] is not consent to the release or use of privileged information.”
Any files flagged “privileged” are considered private and left untouched by system administrators doing routine maintenance, government lawyers claim. In addition, there are opportunities for defense to encrypt its files for extra security. And investigations relating to misconduct, counterintelligence, or law enforcement can only be undertaken with an “Investigative Search Request,” which is reviewed by attorneys in the Office of General Counsel. The OGC ostensibly adds a layer of oversight—though in any event, the government claims, “To date … no investigative searches have been conducted on any [Office of Military Commissions-Defense] information.”
The Pentagon declined further comment for this story, citing “ongoing litigation.”
As for snail mail, the new head of Joint Task Force Command Guantanamo Bay, Rear Adm. David Woods, has come under fire for instituting rules in which all legal mail sent to the detainees is seized and reviewed by prison officials, ostensibly to ensure there is no contraband, defined as “including any physical item or prohibited information the commander or his designee has deemed to be impermissible for detainee to possess.”
Previously, all mail was opened in the presence of detainees and immediately turned over to the recipient without being read by prison officials.
Woods has the authority to change the rules of the detention center. DoD lawyers argue the prisoners’ “limited” right to attorney-client privacy does not outweigh the commander’s responsibility to ensure security at the prison. This claim has sparked outrage among defense attorneys, all of whom have passed stringent security screenings to obtain the clearances necessary to do their jobs.
“A lot of the attorneys looked at their own ethics rules and said, ‘wait a minute, I cannot do that. I cannot give information that’s supposed to be just for my client, over to you.’ So now we have these attorneys who can’t communicate—or are ethically prohibited from communicating—with their client through the mail,” charges Lt. Commander Stephen Reyes, who serves on Nashiri’s team.
He and the others tell TAC that it is their responsibility to make every reasonable effort to protect attorney-client privilege, and they cannot do that if mail is being reviewed in private by officials—even with the government’s assurances that the correspondence is given only a “cursory review” to ensure its legality.
“The folks who review my clients’ information, what’s to prevent them from being ordered to reveal what they learned from their inspection of my clients’ documents? Nothing. There is nothing that prevents that individual from disclosing that document. Nothing. The same thing applies to the DoD [electronic] monitoring,” says Commander Reyes, who stresses that he is taking this so seriously because “at the end of the day, my client’s life is at stake.”
In response to a complaint from Nashiri’s legal team, Judge James J. Pohl ruled in November that the government cannot persist in seizing and performing “cursory reviews” of the prisoner’s legal mail bin. In the Nov. 9 hearing, Pohl suggested there was no difference between a “cursory review” and outright reading the mail. Unfortunately for the rest, the ruling only applies to U.S. v. Nashiri.
The defense counsel’s assertiveness on the issue may have sparked a backlash. Woods has now instituted a new “privilege team” made up of DoD officials, law enforcement, and a translator to review all correspondence between the lawyers and the five 9/11 conspirators on trial. Defense attorneys received a draft order of the new rules on Dec. 22 and were told to sign it within 48 hours or risk loss of all communication with their clients. Commander Reyes, who notes that the policy does not apply to his case, nonetheless says the new rules seem “punitive in nature.”
The defense lawyers have the backing of the American Bar Association, which sent a letter to Defense Secretary Leon Panetta on Dec. 21 in protest of Woods’s mail policies. Stephen A. Saltzburg, General Counsel for the National Institute of Military Justice, tells TAC, “I don’t think we [the ABA] ever approved, or would approve anything that would allow eavesdropping in on attorney-client privilege in any way, shape, or form.”
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Col. Morris Davis, former chief prosecutor of the Gitmo cases, freely admits, “I was probably the leading proponent of military commissions and Guantanamo.” But he resigned in 2007 over the use of evidence gained through torture of the detainees there. Today he calls for closing the prison, which just passed its tenth year of operation.
“This has been a lingering issue,” he says of the inability of defense attorneys to operate according to the ethical standards of their profession. “It’s an unfortunate situation where the deck is significantly stacked in the government’s favor.”
He calls the military tribunal “a pretext of justice” in lieu of “just executing people.” “It’s certainly not a proud moment in our nation’s history,” he tells TAC.
Critics may think the defense attorneys are paranoid—if the government says it’s not snooping, why should they believe otherwise?
But they know the defense network is being actively monitored because they’ve routinely been blocked from websites. They believe DoD is actively engaging in data searches. “We know they are looking for keywords like ‘Al Qaeda,’ ‘terrorist,’ and ‘bomb’,” says Barlett. “We know they are watching our emails.” The attorneys point to an incident in which one colleague triggered a privacy-office alert less than 24 hours after he mistakenly sent to his home computer an attachment that contained some employee Social Security numbers.
Chief Defense Counsel Col. Jeffrey Colwell, who is in charge of OCDC’s Washington office, has asked individual attorneys—who “may have slightly different perspectives or views on this”—not to sign the DoD’s user agreement, and so far the office as stood united against it. In January, he also told his lawyers not to go along with the new rules governing legal mail at the prison.
“One of the most important pieces of being an attorney is the privilege you enjoy with your client,” he says. “The privilege always rests with the client, so it is the client who decides to waive it, not the lawyer.”
The attorneys complain that there is no policy for ensuring that system administrators and others with access to the network protect privileged information; the government could very well be using information from one case to strengthen its hand in another, or passing material to other law-enforcement agencies to use in their own investigations—charges the government flatly denies in recent court filings.
“There are so many unpredictable ways that their having this information could hurt the client,” says Colonel Barlett. Hypothetically, “plea agreements could be compromised because they can see your communications with other attorneys and the back and forth between attorney and clients. So now they know what our negotiating positions are, what the strengths and weaknesses are.”
But should the American public even care, given that these detainees—particularly the 9/11 conspirators—have been accused of the most heinous acts ever committed against the United States?
Absolutely, says Colonel Colwell, for two reasons. Slippery slopes are real, he argues, pointing to the new detention provisions in the National Defense Authorization Act, which extends the military’s authority to arrest and imprison American citizens. Secondly, he adds, America has set a high bar for impartial justice and is obligated to live up to it. “It’s time we step up and show we are better than them.”
Kelley Beaucar Vlahos is a Washington, D.C.-based freelance reporter.