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City Bar Criticizes Protective Order Affecting Counsel for Guantanamo Detainees, Urges Revisions

The Protective Order and Procedures for representing Guantanamo detainees before military commissions “so infringe on the attorney-client relationship as to make effective and zealous advocacy impossible,” states a letter issued by the New York City Bar Association, and therefore the effective date of the order should be delayed until concerns are adequately addressed.  The Association urges that the Office of Chief Defense Counsel be involved in creating a revised order that “protects national security information in the context of fair and just military commission protections.”

The Association’s letter to Defense Department General Counsel Jeh Johnson, signed by Association President Samuel W. Seymour and authored by its Task Force on National Security and the Rule of Law, analyzes the Protective Order and Procedures for Counsel Access to Detainees Subject to Military Commission Prosecution at the United States Naval Station in Guantanamo Bay, Cuba, dated March 4, 2011 and raises a number of concerns.

The letter notes that, while much progress was made in the nearly ten years since the military commission system was established, the announcement that Khalid Sheikh Mohammed and other 9/11 plotters would be tried by commissions make it “imperative that the military commission system be accepted as fair, lawful, and credible.”  However, the Order undermines the attorney-client privilege and would “inflict serious damage to the military commission system,” states the letter.

The letter notes a number of provisions in the Order that “so limit counsel’s ability to communicate with his or her client as to render the attorney-client relationship all but meaningless,” including:

  • Forbidding defense counsel from disclosing to the detainee classified information which was not provided by that detainee directly to detainee’s counsel during the course of communications.  This prevents any inquiry into statements alleged to have been made during interrogations or any allegations made by others, making it impossible to test the truthfulness of the allegations.
  • Restricting counsel from discussing certain relevant information “unless directly related to counsel’s defense of a detainee in the military commission cases” which may nevertheless be critical to the investigation or strategy of the representation.  What constitutes “directly related” is unclear and information indirectly related to the defense may generate important leads or affect strategic decisions.
  • Excessive monitoring of attorney-client communications, which appears to go beyond other monitoring efforts in sensitive cases.  Confidentiality of communications is “absolutely essential to the proper functioning of a fair and impartial adversarial system.”  Similarly, requiring defense counsel to obtain advance approval for all materials reviewed with the client at meetings “is not, to our knowledge, consistent with any rules or practice in the federal system” and “will preclude development of an authentic and productive attorney-client relationship.”
  • Restricting counsel’s communications with third parties even though they might have sufficient security clearance, including counsel for other detainees in related proceedings, thus limiting the opportunity for a full exploration of the client’s defense. 
  • Precluding counsel from making any statements about classified information that has independently entered the public domain without having been declassified; from making any statements revealing personal knowledge about the status of information; or “disclosing that counsel had personal access to classified or protected information confirming, contradicting, or otherwise relating to the information already in the public domain.”
  • Requiring counsel to forfeit the attorney-client privilege with respect to certain critical communications, including all information that comes out of meetings with high-value detainees such as Khalid Sheikh Mohammed, as such information would be presumptively classified and thus would have to be submitted for declassification (thus destroying the privilege) before counsel could use it.  The Association urges that the procedure now used for habeas cases and recommended by the Chief Defense Counsel be used for these communications.
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