With a new round of Guantanamo prosecutions on the horizon, a senior Pentagon official has ordered war court defense lawyers to sign freshly minted ground rules that not only gag what they can say to their alleged terrorist clients but also to the public.
Retired Vice Adm. Bruce MacDonald issued the 26-page "protective order and procedures" for military and civilian lawyers who already have obtained special security clearances to work at the war court called Camp Justice. The Pentagon provides the uniformed lawyers at no charge to the alleged war criminals, who can also hire other U.S. lawyers so long as they get special security clearances to defend them.
There are currently no active charges at the court, called Military Commissions. But Attorney General Eric Holder has approved three new prosecutions, notably the likely death penalty case of a Saudi man accused in the 2000 bombing of the USS Cole that killed 17 sailors off Yemen.
Defense lawyers were given until Monday to sign the new rules, prompting a protest by the Chief Defense Counsel Marine Col. Jeffrey Colwell, who said Friday afternoon the Pentagon was delaying implementation. Broadly, Colwell wrote, the document "unreasonably and unlawfully interferes with the attorney-client relationship" between the captives in the Guantanamo camps and American defense lawyers in uniform of their enemy.
Specifically, in one instance, he noted the "absurd" requirement that lawyers tell the military beforehand what language they will speak with the captive.
It suggests "the government is monitoring our communications," the Marine colonel wrote, "which paragraph 87e says you are not."
As chief Defense counsel, Colwell is in charge of the pool of lawyers assigned to defend Guantánamo captives accused of war crimes. He earlier was the military attorney of ex-CIA captive Ahmed Ghailani of Tanzania, now serving life in prison at a federal penitentiary in Colorado for his role in al Qaeda's Africa embassies 1988 suicide bombings.
Some rules appear tailor-made to lawyers defending accused war criminals like Ghailani, who was secretly held and interrogated for years by the CIA before President George W. Bush had "high value detainees" moved to Cuba in 2006.
Lawyers defending former CIA captives must first get special Top Secret clearances from the U.S. intelligence agencies to simply talk to them.
Now paragraph 29, for example, says a lawyer needs the CIA's blessing simply to ask a captive about a confession the CIA claims he made at a secret overseas interrogation site, before the prisoner ever saw the Red Cross delegate or a lawyer. "Statements of the detainee that detainee's counsel acquires from classified documents cannot be shared with the detainee absent authorization from the appropriate government agency authorized to declassify the classified information."
Pentagon sources say the next case to be sworn by the Pentagon prosecutor includes such a captive — alleged Cole bomber Abd al Rahim al Nashiri, whom CIA agents water boarded, reportedly at a secret site in Poland, as well as menaced with a drill near his head and a pistol. Military lawyers not assigned to the Nashiri case said the rules mean his defense attorneys can ask him broad questions — for example, Tell me about your time in U.S. custody before Guantánamo? — but not specifically about any classified documents created while he was at a CIA black site.
Paragraph 31 forbids the defense lawyers from saying, "That's classified," as an explanation for why they can't answer a question.
The Pentagon's top lawyer, Jeh Johnson, told Congress members Thursday that the order was meant to align the oversight of military lawyers with the "protocol" already imposed on civilian lawyers who travel to Guantánamo to meet captives suing in federal court for unlawful detention.
"As you can imagine, the defense counsels are not to happy about it," Johnson said, adding that they were given an advanced copy to give them a chance to complain. Colwell said the military criminal defense lawyers were "extremely troubled" by the new oversight regime.
It does not let an attorney use discretion on what constitutes legal reading material. A Pentagon lawyer gave Guantánamo's youngest captive, Omar Khadr, a copy of Lord of the Rings some years ago — until guards confiscated it.
Instead, a military lawyer must give mail meant for a client to a "privilege team" to decide whether the captive is entitled to see it.
"It's going to slow everything down, tie our hands," said Colwell. "Getting information to our clients is now going to take weeks instead of days."