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Pentagon officials and attorneys for the 450 foreign detainees held at Guant�namo Bay have always been at odds with each other, but since three prisoners committed suicide last month, the chasm between the two has only grown wider. Earlier this month investigators probing the suicides disclosed they had seized 1,100 pounds of attorney-client-privilege material — all of the legal documents in the possession of detainees being held as enemy combatants. The move was part of an investigation into whether outsiders, possibly lawyers, were involved in a larger suicide plot. Government investigators say notes found during their search indicated that detainees “had developed practices for misusing the existence of a privileged attorney-client communication system,” which raised questions of “whether a coordinated plan existed for suicides involving the encouragement, assistance or direction of other detainees or individuals,” according to a July 7 filing in the U.S. District Court for the District of Columbia. Now the government wants to create a special “filter team” of Pentagon officials and translators to scour thousands of privileged records for any sign of foul play. Although the Justice Department’s brief doesn’t say lawyers were knowingly involved in passing information between detainees, public statements by government officials have pointed the finger at the prisoners’ counsel. “We find it curious that habeas attorneys may have been involved in the deaths,” says Jeffrey Gordon, a Defense Department spokesman. The seizure of such a broad swath of attorney-client material and the implication that outside lawyers may have played a role in the suicides have evoked a backlash within the legal community and put defense attorneys and government officials on a collision course over the next steps in the contested detention of the Guant�namo prisoners. Defense attorneys fear the seizure will create an irreparable chill in attorney-client relations, which have been strained from the start. The American Bar Association excoriated the seizure in a July 11 letter to Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) and called for a further probe. The letter was the latest in a series of complaints by defense attorneys over how the military has blocked their access to their clients. “The military is at war with the lawyers because, at the end of the day, the military does not accept that the lawyers have a legitimate role to play,” says David Remes, a Covington & Burling partner who represents 17 Yemeni prisoners. “They think our mission is directly at odds with their mission. Our access to our clients makes it impossible for the military to control the narrative.” Attorney-client privilege has long been a contested topic between defense attorneys and prosecutors, particularly in white-collar criminal cases. But the division over the material seized at Guant�namo Bay goes to the heart of a deeper issue — namely, how both sides view the suicides. To the military, they were an act of “asymmetrical warfare,” as base administrator Rear Adm. Harry Harris put it, intended to hurt the credibility of the United States. For the detainees’ attorneys, more than a dozen of whom were interviewed for this article, the deaths were acts of desperation, and the government’s reaction has been just the most recent incident in a long-standing battle between lawyers and military officials over the very legitimacy of the lawyers’ task of defending their clients. STRAINED RELATIONS It took nearly three years after the first prisoners were sent to the Cuba naval base for the detainees to win the right to challenge their captivity in the U.S. court system with the 2004 Supreme Court decision in Rasul v. Bush. That effort has not been smooth. The lawyers’ first challenge was negotiating a system to meet with their clients while still protecting the classified nature of much of their work. Government officials initially asked to monitor all conversations and communications between lawyers and prisoners — a position Judge Colleen Kollar-Kotelly of the U.S. District Court for the District of Columbia struck down in a 2004 opinion. Instead the two sides entered into a painstakingly negotiated protective order that created an elaborate system of requirements for visits, information sharing, and communication.
• Senate to Hold Hearings on Hamdan Ruling (July 10, 2006)• Enemies in Court (July 10, 2006)• Supreme Court Invalidates Gitmo Tribunals (June 29, 2006)• High Court Skeptical of Detainee Law (March 28, 2006)• Legal Elite Fight Bush on Detainees (March 27, 2006)• Enemy Combatant Case at High Court (September 26, 2005)• Hamdan v. Rumsfeld (U.S. Court of Appeals for the D.C. Circuit opinion)• High Court Says No to Accused Terrorist (March 9, 2005)• Military Commissions and the War on Terror (Package of stories)

Although roughly 115 detainees have met with counsel, according to a figure cited in a February filing by the government, a number of attorneys offer examples of the difficulties they have had in meeting with their clients once on base. Some attorneys say guards have often told them their clients do not want to see them, but when they send a formal letter to their clients, the clients eventually agree to a meeting and say they were never told that they were going to meet their lawyers. Lawyers say they also have been hampered by the way the privilege team — a separate government group tasked with examining all communications with clients for classified material — reviews their notes. In a February court filing with Kollar-Kotelly, attorneys for 12 detainees say the team has “undermined counsel’s effectiveness.” (The judge has yet to rule.) According to the detainees’ filing, the privilege team has often wholly refused to release documents that attorneys believe should be public. For instance, the team would not declassify a letter from a client of former Covington & Burling attorney Mark Falkoff because it asked the lawyer to “tell the world” about the torture the client had claimed to have suffered and because the letter included poems with lines like “My Dear Love” and “Dearest, Forgive Me.” The team also refused to review medical records of weight loss that hospital officials had given to a prisoner represented by Kristine Huskey of Shearman & Sterling. After she resubmitted the materials for review, they were marked “unclassified.” More troublesome, attorneys say, are examples of intimidation. Attorneys claim their clients have been interrogated about lawyers’ visits and told that their lawyers are Jewish or gay — characterizations intended to make prisoners suspicious of their counsel. Clive Stafford-Smith, who represents numerous Guant�namo detainees and is the legal director for Reprieve, a British charity, says he believes he is a particular target. During an August 2005 visit, he says, a commander took him into a prison cell and accused him of violating the protective order. Stafford-Smith says the commander accused him of fomenting a hunger strike that dozens of detainees were participating in at the time. The commander told him that his client, Shaker Aamer, a detainee leading the strike, had told staff that Stafford-Smith had planned the strike with him, he says. “I was quite taken aback by this, and said that this was obviously nonsense,” Stafford-Smith wrote to Guant�namo officials that day. Joshua Colangelo-Bryan of Dorsey & Whitney says he came under similar suspicion when he discovered his client, Jumah Dossari, attempting to kill himself during a visit in October. He says a military lawyer told him that “people at Guant�namo had questioned whether I had given him the implement that he used to cut his arm open.” THE INVESTIGATION Protests from the detainees continued. On May 18 two other detainees attempted to overdose on hoarded medication, which was the same day a band of prisoners attacked cell guards with makeshift weapons fashioned from fans and other material. Then, on June 9, three detainees — two Saudis and one Yemeni — were found dead in their cells. The Naval Criminal Investigative Service was immediately called in. According to the July 7 government filing, handwritten notes were found on the detainees that appeared to be suicide notes, one of which was hidden in the mesh wall of one of the deceased detainees’ cells. That letter, the government claims, had been written on the back of a privileged attorney-client document and “appeared to be written by someone other than the detainee who died in the cell.” Notes apparently written by two of the detainees who committed suicide were found in another detainee’s cell. This finding prompted investigators to seize the privileged documents from prisoners. The government claims in its brief that the material already reviewed is “in no way actual attorney-client communications, much less privileged communications.” But it contends that the review has “the strong public policy interests in potentially saving lives and in maintaining security and order” at the base. While detainees’ lawyers say they do not object to a thorough probe of the three deaths, they are concerned about the authority the government had for expanding the search to nearly all detainees on the base, especially those in cellblocks far from the three who died. Moreover, only two of the detainees who killed themselves had counsel, and neither had ever met with his lawyer. Attorneys uniformly say the seized evidence does not show that lawyers gave detainees anything barred by the court. The government brief cites material of “interest” that includes two attorney-client-privileged letters that were examined, one of which contained a “secret” stamp that had been crossed out and marked “unclassified” and another that was marked “for official use only.” Attorneys are not inherently barred from sharing information in either of those categories with their clients. These concerns over the government’s evidence, attorneys say, make the government’s proposal to create “filter teams” questionable. “Filter teams” are not unusual in the search of law offices during criminal investigations. Most recently, for instance, the Justice Department assigned one to comb through evidence seized from the office of Rep. William Jefferson (D-La.). But such teams have come under scrutiny over their lack of impartiality in criminal cases targeting lawyers. At least three courts that have allowed similar filter teams have “opined, in retrospect, that the use of other methods of review would have been better,” according to a 2002 opinion in the Lynne Stewart case. Stewart, a radical criminal defense attorney, was convicted of conspiring to defraud the United States in connection with her representation of Sheikh Abdel Rahman, who is serving a life sentence for the 1995 bombing of the World Trade Center. In that case the judge assigned a special master, now the standard practice. The same method was used during the probe of Michael Abbell, a former Justice Department official targeted for his representation of Cali cocaine cartel members in the 1990s. For now, the detainees’ counsel are preparing to file a reply opposing the government’s plan for reviewing the seized attorney-client documents. They hope to stop the review, but even if they are successful, some lawyers say it will be hard to rebuild their relationship with clients. “It is a potentially devastating blow to the very delicate situation that lawyers face down there, which is the challenge of gaining the trust and confidence of clients,” says attorney Neal Sonnett, who has observed the military tribunals.

Emma Schwartz can be contacted by [email protected].

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