The “Protective Order,” issued by the U.S. Federal Court for the D.C. District, establishes the ground rules for the “attorney client relationship” with our Gitmo clients. These are the rules that we (habeas counsel) must follow or else face being held in contempt of court. The attorney-client privilege is one of many legal niceties that disappeared under the protective order. We are also barred from telling a client “secret information” from his files. (The absurdity is underscored by the fact that we cannot even tell a client “secret evidence” that he originally provided.) Although the protective order is a legally binding, the military routinely disregards it and the courts routinely turn a blind eye.
When I meet with my client, al-Ghizzawi, it is usually in one of the interrogation rooms. My client sits across the tiny table with one foot shackled to the floor. A camera in the corner looks down on us. The sound is (supposedly) turned off. I don’t believe that no one is listening, but that is what the protective order prescribes. Under the protective order, when the meeting is over, I turn over my notes to the military escorts in a sealed envelope. On the outside of the envelope I mark whether I want my notes sent to the “privilege team” for “declassification” or if I want my notes put in my drawer at the “secret facility.” (The “secret facility” is the office the government set up, in a location I have sworn not to disclose, for habeas counsel to work on “secret” stuff.) I opt for declassification and the military eventually sends my notes to the “privilege team,” which is composed of Department of Defense lawyers who are not supposed to take part in proceedings against the detainees.
It takes anywhere from 10 days to five weeks for my notes to make it from Guantánamo to D.C. When the “team” declassifies my notes, they fax a copy to me and put the original in my drawer at the “secret facility.”
You might wonder why I would turn over the notes to the privilege team when I can safely tuck them away in my drawer at the secret place. I cannot talk or write about what my clients tell me unless it is first vetted with Big Brother. I can share my notes with the judge, but I would have to prepare this shared document in the “secret facility” and file it under seal. I could also share the information with other habeas counsel that have a security clearance, but not over the phone or email. We have to physically meet at the “secret facility” or in any closed office, but only if the curtains are drawn. (No, I am not making this up.) Once the notes are declassified, I can use them as I see fit. As they have contained no big dark secrets, all of my notes have been declassified.
Also under the protective order, my attorney-client mail goes to the privilege team. The team opens my letters, but this time they are not supposed to read them (hmmm). They are just looking for physical contraband – staples, paper clips and other dangerous items. They have two days to check for those items and then the letter is supposed to be sent to the base where they have two days to get it to my client. Some letters never get there, most letters take weeks, even months to get from attorney to client.
When I visit with my clients, I always bring all of my letters and my clients’ letters so that we can review what has been received. It is a tedious process but it is important to know what information was “lost” in the system.
During my last visit to the base in July, the military added a new rule (one not found in the protective order). I can no longer bring attorney-client letters to meetings if they are in Arabic, unless an Arabic translator reviews the letters first for information that he thinks I should not give to my client. I learned of the new rule when I went to my meeting with my usual stack of letters in English and Arabic. An Arabic translator was brought over to “review” my letters. He stood there and read the letters while I complained to the military attorney, who was busy ignoring the legal violation.
When the translator finished reading my attorney-client letters, he announced that they were not “legal” letters but “personal letters.” I turned to him and declared rather indignantly that not only were the letters legal mail but that they had already been submitted to the privilege team and my client probably had the originals with him in our meeting room 25 feet away. The translator looked mildly sheepish and said, “Oh, ok, I guess you can bring them in.”
And that is how it goes. Some unknown contract employee now decides what I can bring to my client meeting – protective order (as bad as it is) be damned.