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Attorney Richard E. Mirsky represents clients throughout the South Florida area, including Broward, Miami Dade, and Palm Beach counties.

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Latest attorney-client privacy issue at Guantánamo is called ‘unintentional’ listening

August 3rd 2017

A Navy prosecutor said unauthorized, unidentified people “unintentionally” overheard detainees consulting with their attorneys at a special, irregular meeting site to stir the latest controversy over attorney-client privacy at the wartime prison.

“Any characterization regarding an intrusion in the attorney-client relationship is misleading,” said Cmdr. Douglas Short, lead prosecutor in the case of an Iraqi man accused of commanding al-Qaida’s army in Afghanistan after 9/11. He announced the explanation during a war court hearing Thursday, reading from a page that sounded nearly identical to a subsequent U.S. Southern Command press statement.

But the submission into the court record offered an unclassified window into a June 14 letter by the chief defense counsel, Marine Brig. Gen. John Baker. In it, Baker declared a “loss of confidence” in the integrity of “all potential attorney-client meeting locations” after learning some legal meetings were the victim of “intrusive monitoring.” The time period spanned September 2015 and April 2017.

Short did not explain why lawyers were meeting with prisoners in place where people could listen in on their consultations. But he said none of the overheard attorney-client meetings were with captives “currently in contested military commissions trial proceedings,” leaving open the possibility that some were conversations with convicts turned government witnesses.

He also said “no privileged attorney-client communications” were “overheard by anyone in a law enforcement or prosecution role,” but did not specify who was doing the listening at the base with 41 captives and a prison staff of 1,500 troops and civilians, some with intelligence roles.

The mysterious meeting room controversy is the latest in a long string of defense lawyers’ complaints about government interference into their privileged work — from the CIA’s having the clandestine capacity to mute court audio to FBI agents trying to turn defense team members into informants to the discovery of listening devices that looked like smoke detectors in legal meeting rooms.

A fuller explanation of what went on is classified, according to multiple military officials and attorneys who are privy to the problem that prompted the U.S. Southern Command to order a special investigation.

In response, Baker suggested the prosecution is in no place to evaluate the harm of such episodes.

“The government’s suggestion this is a simple problem with a simple solution is sorely mistaken. You cannot un-ring a bell,” Baker said in a statement.

“This situation, like the ones before this, do harm to the attorney-client relationships at Guantánamo. Even if unintentional, accidents and coincidences that occur in Guantánamo Bay, can have devastating consequence, and at some point, could lead a reasonable client to believe he has no ability to have private conversations with his lawyer.”

At Southcom, Army Col. Lisa Garcia would not provide an update on a commander’s inquiry into the episode “to find facts and make recommendations for future operations.” Instead, Garcia issued a nearly identical statement to the prosecutor’s. Both noted the prison does have a designated meeting place “where the detainee can speak to his attorney without being overheard.” Neither Garcia’s nor Short’s similar statement answered the question of whether someone was recording at the special-site meetings.

Short made the statement in the first war court hearing following Islam’s holy month of Ramadan, a time when most Guantánamo defense lawyers traditionally don’t hold attorney-client meetings. So it is unclear how many of the dozens of defense lawyers for the captives are not discussing confidential topics with their clients in light of Baker’s advice.

Thursday’s hearing opened with Abd al Hadi al Iraqi, accused of commanding al-Qaida’s Army, thanking the judge for postponing the session until after Ramadan’s Eid al Fitr holiday. He said the delay let him spend the holiday “with my colleagues,” a reference to other former CIA captives now held at the clandestine Camp 7 prison, who include the alleged plotters of al-Qaida’s 9/11 and USS Cole attacks.

“You’re welcome,” Judge Marine Col. Peter Rubin replied.

In response to a question, Hadi’s Pentagon-paid attorney, Adam Thurschwell, said the prosecutor’s explanation of the latest attorney-client relationship challenge did not satisfy his concerns. “It makes a lot of assertions. In criminal litigation when the government says something, the defense doesn’t have to believe it.”

Cmdr. Aimee Cooper, Hadi’s military lawyer, said she continues to hold meetings with the Iraqi but restricts them to “health and comfort” conversations rather than legal discussions.

In early June, the Army colonel in charge of the Detention Center briefed reporters at Camp Echo, the traditional attorney-client meeting site, that his troops watch but don’t listen in on or record the meetings.

The Southcom statement did not explain why the prison was using an alternative spot for attorney-client meetings to those shown to reporters at Camp Echo, a location The Washington Post identified in 2004 as housing a CIA Black Site.

On June 27, a Justice Department lawyer sent an email to civilian lawyers who represent uncharged Guantánamo captives, inviting them to go to a “secure facility” in the Washington, D.C., area to read “a classified letter.” It “provides information primarily about detainees who met with their habeas attorneys in Camp Echo’s living areas between September 2015 and April 2017,” suggesting the unintentional eavesdropping occurred somewhere in the former CIA compound.

“Appropriate remedial actions are being taken,” the Pentagon prosecutor said in court, “including the offer to the defense counsel of an opportunity to inspect their meeting rooms to satisfy themselves that no overhearing is occurring.”

Original Story published by Miami Herald on July 2, 2017.
Latest attorney-client privacy issue at Guantánamo is called ‘unintentional’ listening

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