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

by Kevin Jon Heller

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.


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.

4 Responses

  1. Response…
    serial unlawfulness under international law continues!

  2. Kevin,
    This is consistent with these being conviction machines.
    Refresh my memory about Nuremberg.  I was under the impression that the attorney-client privilege (I am not sure of the form of it) was respected.  Am I right or wrong?

  3. How does this approach square with the obligations under Common Article 3 (i.e. regular constituted, civilized nations, etc.) with the Sixth Amendment being our articulation of those concepts?  Brother am I just sick of whereall this improvisation since 9/11 and the PMO is taking us.  And we can always find another group of lawyers with the hubris to think they can put a better color lipstick on this pig of a legal path in these military commissions.

  4. Response…
    Ben: I believe that you are correct about Atty-client priv. at the IMT, but good question.  Since then, as you note, we have common art. 3, with incorporates ICCPR art. 14 and Geneva Protocol I, art. 75 by (indirect) reference, since, as the S. Ct. recognized in Hamdan, these refelct customary human rights and humanitarian legal standards, rights, duties, etc. regarding fair trials and due process.
    The military commissions are still unlawful, as my forthcoming article “Still Unlawful….” demonstrates — forthcoming later in Cornell Int’l L.J. (2012), not on SSRN at this time.

Trackbacks and Pingbacks

  1. There are no trackbacks or pingbacks associated with this post at this time.