The Military Commissions Fiasco: Now with Extra Fiasco-ness!

In case the government’s actions haven’t yet convinced you of the fundamental unfairness of the commissions (such as making up war crimes), perhaps its decision to treat the attorney-client privilege as optional will do the trick:

The new commander of the Guantanamo Bay prison wants a team of government and law enforcement officials to be allowed to review all communications between lawyers and inmates accused of helping organize the Sept. 11 attacks, The Associated Press has learned.

The proposed changes, contained in a 27-page draft order, have sparked a backlash from the Pentagon-appointed attorneys representing the five Guantanamo prisoners charged in the attacks. They say the new rules would violate attorney-client privilege and legal ethics and deprive the prisoners of their constitutional right to counsel.

[snip]

Under the new rules, a “privilege team,” which would include Department of Defense and law enforcement officials, would conduct a security review of all communications to the prisoners, according to the memo. The lawyers say such a review is unnecessary, since they all have security clearances and know not to release classified information, and also overly intrusive.

They say it would be impossible for Woods to ensure that these officials do not share this information with the prosecution or others because the members of the team wouldn’t be under his command.

The chief defense counsel of the military tribunals, Marine Corps. Col. Jeffrey Colwell, said he shares the concerns of the attorneys in the Sept. 11 case. He also objects to a provision in the new rules that would allow detainees to receive only letters from their lawyers and not any supporting documents such as legal motions or articles about their case.

The government is aware of the implications of the new rule, but it doesn’t want you to worry.  The new rule instructs the privilege team to preserve attorney-client privilege “to the fullest extent possible.”

Don’t you feel better?

UPDATE: Steve Vladeck has a nice post on whether defendants at the commissions have a Sixth Amendment right to counsel here.