Blog of Rights

Guantánamo Chief Defense Lawyer Orders His Attorneys: Don't Agree to Monitoring

By Zachary Katznelson, Senior Staff Attorney, ACLU National Security Project at 5:12pm

Ten years on, Guantánamo authorities are back to their old tricks, throwing up roadblocks to fair trials. But now the top defense lawyer for the controversial Guantánamo military commission system has ordered the attorneys under his command not to comply with new rules issued by the Guantánamo prison chief that require Defense Department screening of all written materials lawyers want to send to their clients.

In an email sent Sunday and obtained by the ACLU, Marine Col. J.P. Colwell, the chief military defense counsel for the commissions, informed all military commission defense lawyers that they were ethically obligated to refuse to follow the rules, which were issued last month.

Guantánamo’s commander, Navy Rear Adm. David Woods, issued the rules on monitoring legal communications on December 27. Under these rules, any information provided by lawyers that military censors found objectionable — like communications about U.S. personnel who tortured the prisoners — could be kept from the prisoner and brought to the attention of the base commander. This would eliminate attorney-client confidentiality.

The new prison rules say that defense attorneys must agree in writing to the monitoring as a condition of communication with their clients. In his email, Colwell told military commission defense lawyers that they should not sign the monitoring agreement, and if they already had signed, then they should immediately withdraw from the agreement. Citing the ethics codes that govern every branch of the military, Colwell wrote that following the agreement and revealing such information would be “in violation” of rules for professional conduct.

Col. Colwell joins an honorable line of Guantánamo military lawyers who have opposed superiors’ attempts — ostensibly in the name of security — to undermine longstanding rules necessary for a fair trial. In seeking to force military defense counsel to cast aside their professional ethical obligations of client confidentiality, the new rules fly in the face of American justice and tradition.

If we want to do justice — and be seen as doing it — these cases need to be in federal court where the rules are established, fair, and effective.

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