The attorney-client privilege is among the most fundamental rights possessed by a defendant represented by counsel in a criminal case. Likewise, the right of a defendant to be present during trial and the right of confrontation are constitutional requirements for a fair trial. Why then does the government get away with infringing on these rights when a case involves national security information? This is exactly what occurred during pretrial hearings in two cases against six detainees in the Guantánamo military commissions between June 11 and June 21. Motions heard in both al-Nashiri and KSM, et al. alleged government breaches of the attorney-client and work product privileges, including the reading of privileged written communications and the potential monitoring of in-person attorney-client meetings. Also, for the first time ever, the commission went into a closed session and prohibited the defendant from attending and participating in the proceeding — in a death penalty case.
Both teams have suffered through IT failures that affect their ability to effectively represent their clients and maintain client confidences. The most troubling failure so far is what has been dubbed the “al-Qosi” issue, which resulted in the disclosure of confidential defense communications to the government. This disclosure occurred in appellate proceedings in the al-Qosi case when government personnel, at the request of the Court of Military Commissions Review, filed an Investigative Search Request (ISR) with the Office of the Chief Prosecutor (OCP) for emails between the prosecution and the defense regarding a specific issue. The search was too broad and, as a consequence, the search results included some privileged and confidential emails between defense lawyers. In an attempt to remedy this error, the government filed two subsequent ISRs that resulted in the production of more privileged defense emails. During testimony in the al-Nashiri pretrial hearings, Principal Deputy Chief Defense Counsel Bryan Broyles revealed that the searches resulted in over 500,000 hits, including some emails potentially belonging to the al-Nashiri defense team.
As a result of the improper disclosures, Chief Defense Counsel Colonel Karen Mayberry ordered that all military defense lawyers cease using their email system until it is secure. This necessary precaution placed an enormous burden on both teams, who were unable to make privileged communications by email during their preparation for the hearings. Under the self-imposed email ban, defense counsel has been forced to prepare handwritten motions for all motions filed with the commission. Over two hundred handwritten pages had been filed with the commission before the June hearings. During the government’s argument in opposition to defense motions on the issue, prosecutor Commander Andrea Lockhart claimed that defense lawyers in the al-Nashiri case have been given adequate resources to defend their client since the security issues first arose. The situation was close to being remedied at the time of the hearings, as the Office of the Chief Defense Counsel (OCDC) was scheduled to have its own email system by July 22, which is supposed to be monitored only by OCDC personnel. There is no doubt, however, that this inequality of arms places the defense teams at a disadvantage in preparing their cases.
As if that incident was not intrusive enough, in March 2013, in an effort by Pentagon technicians to ensure network communication between government computers in the United States and computers in Guantánamo Bay, Cuba, the government attempted to replicate all files between the two systems. According to Mr. Broyles’ testimony, during this process, many privileged files went missing, were sent to the wrong place, or were made accessible to both parties. He testified that seven gigabytes of data were lost during the replication. He added that there is a possibility the IT team cannot reconstruct the defense server contents perfectly, and if some documents were lost, they may remain lost. In seeking to remedy the failures of the replication, Mr. Broyles testified he discovered that prosecutors had the ability to access files that belonged to the al-Nashiri team because both parties had access to a common drive. Although privileged files were retrievable by lawyers for the prosecution, they deny any wrongdoing on their part. Commander Lockhart asserted that just because the government has the capability to access something does not mean that the government is actually doing it.
Not only has the government had its hand in infringing on the attorney-client privilege, it also took secrecy to a new level when prosecutors sought to keep Mr. al-Nashiri out of the first closed session of the Guantánamo military commissions since the system was “reformed” in 2009. Al-Nashiri’s defense counsel vehemently opposed keeping the accused out of any court proceedings, citing a defendant’s right to be present, his right to participate in his defense, and his right to effective assistance of counsel. The prosecution’s classified information expert, Joanna Baltes, said that a defendant can be closed out of an interlocutory matter unless he is the source of the information to be presented during the hearing. In other words, unless he is going to testify at the closed session, the defendant can be barred from attending the session. She further claimed that the Sixth Amendment right to confrontation is a trial right and does not attach in the pretrial phase; therefore, a defendant has a right to be present if the government presents classified information in its case in chief (the public can be excluded), but he has no right to be present if the government wants to present the same information in a closed session in the pretrial phase.
Finding that the potential for “grave damage to national security” existed, Judge Pohl closed the hearing to the public. He also excluded al-Nashiri from the hearing because he was “not the source of the classified information.” Although al-Nashiri’s defense counsel was present in the closed session, nothing that was discussed can be corroborated or denied as truth or otherwise by al-Nashiri because defense counsel is prohibited from disclosing and discussing classified information with him. Not only does this undermine basic principles of due process, it also impacts the ability of the defense to assemble evidence in support of mitigation in a death penalty case. The first closed hearing of the new and improved military commissions will not only have a grave impact on al-Nashiri’s case, it will impact the system as a whole.
What if this had happened in the U.S. civilian court system? Likely more people would have heard about it, and there would be immense public outcry demanding stronger protections for the attorney-client privilege. But, in this instance, the disclosure affected defense counsel for these reviled prisoners, stigmatized by their detention in a facility built for “the worst of the worst.” The individuals who were harmed were detainees and their defense counsel — not exactly a popular group that draws large public outcry when their rights are infringed. The lack of protection for defense communications makes it nearly impossible for defense counsel to properly and effectively prepare their cases — death penalty cases — if their communications are constantly being monitored by the government.
This disregard for privileged communications further legitimizes the criticism that military commissions do not afford detainees a fair process. After 12 years of commission hearings, it is clear that the military commissions system was created to avoid granting the full gamut of legal protections afforded defendants in the U.S. civilian justice system. The military commissions have suffered from numerous unfair procedures, and reading and accessing defense counsel emails and communications with clients are just examples of the blatant disregard of the U.S. government for the rights of these defendants.
It should be in the prosecution’s best interest to uphold the integrity of the justice system, regardless of where the United States is holding trial or who is being defended. The commission system should afford equal protection to maintain credibility. After all, these are capital cases and the world is watching to see how the United States administers justice. Releasing private information belonging to one party and creating a system that makes it impossible to fairly defend an individual do not abide with the principles of the United States to promote equal treatment and fair and impartial trials around the world.
About the Author
Natalie Salvaggio is the summer law clerk for NACDL's National Security and Privacy Program. She will earn her law degree and master's degree in global policy studies in spring 2014 from the University of Texas, Austin.