No Comment — April 12, 2013, 11:11 am

A Final Act for the Guantánamo Theater of the Absurd?

A new report from Seton Hall University exposes government surveillance of attorney-client conversations

The military commissions at Guantánamo have been on hold for roughly two months now, stalled by a pressing question: Were the proceedings inside the state-of-the-art courtroom in fact being manipulated by the CIA? Back in 2009, the Obama Administration inherited a process that verged on being an international laughingstock. Political appointees had manipulated almost every step of the process, pressing to remove any doubt from the outcome. Ultimately, the thin veneer of legitimacy that remained was stripped away when military lawyers — both prosecutors and defense counsel — joined together to expose the political circus.

Team Obama promised to right this system. An interagency review process led to agreement on a significant number of reforms, and Brigadier General Mark Martins, the new chief prosecutor, made the rounds of law schools and bar associations, talking about the government’s intention to restore basic norms of justice to the process. He was persuasive, and even skeptics began to acknowledge that the proceedings had been set back on the path to respectability.

Today, however, that effort is a shambles. The military-commissions process teeters for the third time on the brink of collapse, thanks to the ham-handed snooping and manipulations of the intelligence community. The problems this time were first exposed by a moment of comic ineptitude. During a hearing in the prosecution of Khalid Sheikh Mohammed, journalists and other observers behind the Plexiglas barrier noted that the sound had suddenly gone dead as defense counsel David Nevin recited the name of a motion that referred to CIA black sites. “Who,” queried Judge James Pohl, “turns that light on or off?” He was referring to a flashing red light that indicated when the audio feed was being disrupted. Not the court, it turned out. In the best Wizard of Oz tradition, the man behind the curtain appeared to be in the employ of “another government agency.” Judge Pohl at first seemed indignant over this instance of external control over his courtroom, but later resumed the proceedings, apparently accepting the arrangement as beyond the purview of his pay grade.

While that affair soon dissolved into embarrassed jokes, it paved the way for far more serious charges. Defense counsel began to make noise about the severe limitations imposed on their confidential communications with clients, reporting that their messages were being intercepted, noting that government agents routinely seized approved communications during security sweeps of prisoners’ rooms, and, most seriously, expressing suspicion that their conversations were being monitored. These suspicions appeared to be confirmed when attorneys meeting their clients for conferences discovered that the “smoke detectors” installed in the ceilings above them were in fact supersensitive surveillance devicesBar associations across the United States denounced all of these machinations as efforts by the U.S. government to undermine the most fundamental of fair-trial rights: the ability of a client to communicate in complete confidence with his counsel. 

Now a team of investigators at Seton Hall Law School in New Jersey has issued a report that erases any doubt about what was going on: the U.S. intelligence community was indeed monitoring attorney–client consultations, notwithstanding government promises of confidentiality.

[T]he only rooms on the entire Guantánamo Bay Naval Base where defense attorneys are permitted to hold private meetings with their high-value-detainee clients are the same rooms formerly used by the CIA, FBI, and other agencies for the purpose of recording interrogations of the same group of detainees. After the intelligence agencies relinquished control over Camp Echo — the “prison within a prison” — to the military, the military repeatedly repaired and upgraded audio-monitoring equipment that was purportedly never used. However, the military could have learned that the equipment required repairs and upgrades only if it knew how the equipment functioned and that it did not function properly when they attempted to use it. Moreover, the high-ranking officer in charge of Camp Echo who denied knowing that audio-monitoring equipment existed authorized that equipment’s repair. The final maintenance on audio feeds in Camp Echo was conducted mere weeks before the surveillance capabilities were eventually discovered by defense counsel.

After these arrangements were first disclosed, the military ordered that the surveillance devices be disconnected from their power sources, but it didn’t remove them. 

From the outset of the trials, military spokesmen offered lawyers a stream of strained and inconsistent responses to charges that conversations were being monitored. They began by baldly denying the existence of the equipment, then retreated step-by-step as their lies were exposed. The Seton Hall report outlines how this pattern of deception proceeded:

The equipment has been implemented in a practice of multi-layered deception of defense attorneys. As a first layer of deception, defense attorneys were advised regularly that there was no recording in place. As a second layer of deception, the recording devices in Camp Echo huts were disguised as smoke detectors, concealing that even whispers between attorneys and their clients could be monitored. As a third layer of deception, although the defense attorneys were advised that there were cameras in Camp Echo for safety purposes, they were not advised that the cameras were capable of zooming in on the attorneys’ notes and other documents.

To shield itself on the attorney–client privilege issue, the government has long articulated concerns that an imprisoned terrorist will use defense counsel as a messenger to further a terrorist scheme, thereby relying on an important legal exception that strips privilege from communications designed to further a crime. In one prominent case, defense counsel was charged and convicted in such a circumstance. However, U.S. law requires evidence of likelihood that attorneys are engaged in a criminal enterprise before authorizing surveillance of their conversations with a client. Federal law provides precise procedures under which the Attorney General may authorize the monitoring of attorney-client communications inside of federal prison. This raises the question of whether the surveillance equipment was installed for only those cases in which the Attorney General makes specific findings, or whether it was used more systematically.

The government will probably soon offer assurances that information secured by the intelligence community is not passed on to criminal prosecutors. But the Seton Hall report meticulously catalogues numerous assurances of confidentiality given by the government in the past, which have now been discredited. 

The Obama Administration promised that the military commission at Guantánamo would live up to the nation’s historical commitment to justice and the rule of law. Military prosecutors appear to be blameless in the current controversy, and have acquitted themselves professionally throughout. The CIA is quite another story. Senior officials (including one now in line to head the clandestine service) destroyed critical evidence involving some of the prisoners out of fear that it might lead to the indictment and prosecution of intelligence officers. The CIA claims it is trying to avoid the disclosure of classified evidence, but many outside observers see little more than censorship of facts that make the CIA look bad. Whatever the CIA’s exact motive, it should not be interfering with the military-justice process, which should be run by the military according to its own norms and rules. Why the Obama Administration has placed the intelligence service in a position to so egregiously compromise the military commissions is puzzling, and a serious lapse in judgment.

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