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New Guantánamo Rules Might Violate the Attorney-Client Privilege

By Patrick T. Campbell, Esq.

Navy rear Admiral David Woods, Guantánamo Bay's new commander, has proposed new rules that might infringe on Guantánamo detainees' right to confidential communications with their defense counsel.

Woods, in a 27-page draft order, is proposing that a team of Department of Defense and law enforcement officials, the "privilege team," be allowed to conduct a security review of all communications between the five inmates accused of organizing the 9/11 attacks and their lawyers. The order, not yet publicly available, sets guidelines for when members of the "privilege team" can disclose information from legal mail to other government officials, such as when they encounter what they suspect to be "unauthorized information."

The proposed new rules have sparked a backlash from the Pentagon-appointed counsel representing the five prisoners charged in the 9/11 attacks, who say the proposed security review is unnecessary because defense counsel all have security clearances and know not to release classified information. Defense counsel claim that the new rules violate the attorney-client privilege and legal ethics, and impinge on the detainees' constitutional right to counsel. They also argue that it would be impossible for Woods to ensure information from these letters is not shared with the prosecution, because the "privilege team" is not under his command. Defense counsel received the draft order from Woods on December 22, 2011, and was given 48 hours to sign an agreement to abide by the rules. Instead, defense counsel submitted a written response stating that requiring them to abide by the rules in order to see their detainee clients is illegal.

Marine Corps. Colonel Jeffrey Colwell, chief defense counsel of the military tribunals, said he shares in defense counsel concerns, and also objects to a provision of the new rules which would limit correspondence to detainees to letters from their lawyers, and bar any supporting documents like legal motions and articles.

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