The Champion

March 2013 , Page 49 

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Gideon at Play, But Rights and Privileges Lacking (Military Commissions Perspective)

By Mason C. Clutter

Read more Military Commissions Perspective columns.

Following three days of legal arguments on Jan. 28-31, 2013, a press conference was held in an old airplane hangar located in “Camp Justice” at the military base on Guantánamo Bay, Cuba. Following general statements to the media, David Nevin — one of Khalid Sheikh Mohammed’s lawyers and an NACDL National Security Committee member — responded to a question posed by a father who lost his son in the attacks on Sept. 11, 2001. He asked if poor defendants in federal court would get as many lawyers as the 9/11 defendants in the military commissions. Mr. Nevin’s response was Gideon v. Wainwright.

Mr. Nevin explained that because of the Supreme Court’s 1963 landmark decision, defendants, especially in a capital case, have a constitutional right to a lawyer. Mr. Nevin did not go on to explain, however, that the Guantánamo detainees only have a statutory right to counsel, not a constitutional right to counsel, and due to a recent order by the military judge in the case, there is no presumption that they have such a constitutional right. The statute governing the Guantánamo military commissions, the Military Commissions Act of 2009, provides that capital defendants are to be provided with detailed military counsel and “at least one additional counsel who is learned in applicable law relating to capital cases,” although as in the case of 9/11 defendant Mustafa al-Hawsawi, the learned counsel and military counsel may be the same person.

It seems self-evident that with the right to counsel comes all of the rights and responsibilities — on both the part of the defense lawyer and the government — of the attorney-client relationship, but at Guantánamo this is not a given. For example, the attorney-client privilege must be upheld by defense counsel (and not intruded upon by the government), which includes protecting client confidences and not sharing privileged information or work product with any third party, not just the government. The importance of these protections became clear during the first day of arguments as Mr. Nevin addressed the commission and simply read the nonclassified title of a motion pending before the commission. The motion requests that any facility where the defendants have been held in the past be preserved as potential evidence. As he spoke, the sound and video feed to the “public” gallery — filled with nongovernmental observers, media, and victim family members — was cut.

The gallery is separated from the main courtroom by very thick, nearly soundproof glass, and sound and video are provided to the gallery and to a closed circuit television site at Fort Meade, Maryland, on a 40-second delay to account for any spillage of classified information. A system is in place so that if the court security officer, who works for the military judge, determines that classified information has been disclosed, he can turn on a red light resembling a hockey light, and cut off sound and video streamed to the public. This procedure was implemented on Jan. 28, 2013, but not by the court security officer and not by the judge.

It became immediately apparent to the defense lawyers, military judge, and public alike that a third party, outside of the strictures of the commission, had been listening to commission proceedings and had the ability to close the courtroom to the public, without the knowledge of the judge and without going through proper legal procedures to do so. What was even more disconcerting was the fact that one member of the prosecution team appeared to know what happened and offered to explain it to the judge in a closed session of the commission. It was later disclosed that an “Original Classification Authority,” or someone who works for a large executive agency that determines the classification level of information controlled by that agency, was responsible for pressing the button without the consent or knowledge of the commission.

As distressing as this occurrence is, it is even more distressing to think of this third party listening in on attorney-client conversations and attorney-attorney conversations while in the commissions room. The defense lawyers responded quickly and appropriately with an emergency motion to abate the proceedings until it can be determined whether or not the attorney-client privilege has been compromised, and to what extent their conversations with their clients and each other are being monitored in and out of the courtroom. Mr. Nevin later explained that it now makes sense to him why he is required to notify the guard force of the language that will be spoken during privileged attorney-client meetings, even though he has been assured in the past that their meetings are not being aurally monitored. Yes, Gideon can be seen in play at Guantánamo, but all of the rights and privileges that come with the promise of Gideon are severely lacking.

Aware of the serious ethical obligations at issue, the very next week lawyers in the al-Nashiri case, the alleged Cole bomber case that is being tried in the very same courtroom as the 9/11 case, filed a similar motion to abate the proceedings. Additionally, both learned counsel and military counsel in that case requested a three-hour recess to consult with lawyers in their jurisdictions regarding their ethical obligations in light of this newly discovered situation. Mr. al-Nashiri’s learned counsel Richard Kammen, an NACDL member practicing in Indiana, reported back to the military judge that he had consulted with two lawyers in his jurisdiction. One told him he had an obligation to gather more information about the situation; another told him he had an ethical obligation to withdraw from the case. Mr. Kammen chose the former option.

Not only are there serious ethical issues at play, but the real-world effect of this spying incident is far more substantial. As Jim Harrington, learned counsel to Mr. bin al-Shibh and an NACDL member, said during a press conference at Guantánamo, this incident has caused irreparable damage to his relationship with his client. Mr. Harrington said that he is often put in a position with his client of defending the legitimacy of the system, but instances like this “demonstrate otherwise.” The government is watching and listening, not just when his client is alone, but also when he is with his client.

But, according to the chief prosecutor, General Mark Martins, the commissions are fair, open, and transparent. As Mr. Nevin has pointed out, General Martins is in a unique position of being the face of the commissions and trying to convince the world at large that the system is fair. No U.S. Attorney or prosecutor in a court martial carries this burden. Mr. Nevin asks whether the system really is a fair system as opposed to one that is designed to have the appearance of being fair. One thing is for sure, General Martin’s team and the “Original Classification Authority” are not helping him with this task. The mere allegation of third-party surveillance of attorney-client conversations and work product further diminishes the appearance of fairness General Martins has tried to create.

Along those lines, newly appointed counsel to Mr. bin Attash, Lieutenant Commander Hatcher, introduced himself to the commission with a very powerful statement about transparency and openness. He stated on the record:

[P]rior to my appointment to this case in 2008 I worked as a public defender for several years. And in talking to juries I would oftentimes describe to them — or try to answer the question of how can you defend somebody that’s charged with a crime. And it gave me a great opportunity to describe to them the system of justice that we are privileged to have in our country and that it’s a great honor for me to be part of that system and to, in my role as a defense attorney, uphold the principles that our country was founded on. And of course in the context of a criminal trial, some of those most important principles have to do with openness and transparency, and along, of course, with the presumption of innocence. But in trying to contrast that, Your Honor, for jurors, I would sometimes use the example of other systems that didn’t enjoy those sorts of things. And one example I would typically use would be of the closed trials that we often hear of that go on under certain dictatorships. One of the examples I would often use was from Cuba, in the closed trials that you hear in Cuba, Your Honor. And so you can imagine my surprise when 10 years later I find myself here in Cuba, in this remote place and in a trial that over the years has begun to feel more and more like a closed trial. Your Honor, not to in the least bit make any other association in terms of dictatorships or things of that nature, but thankfully we are basing this on our American system of justice.

While these recent events demonstrate that Gideon’spromise is likely broken at Guantánamo due to the infringements upon the attorney-client relationship, the spirit of Gideon is alive and well in the men and women who are representing their clients in a system shrouded in secrecy and surveillance.

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