9/11 Trial Grinds To A Halt As Evidence Surfaces That FBI Subverted Attorney-Client Privilege

from the hey,-it's-just-a-'privilege,'-amiright? dept

More evidence is being uncovered indicating that if the government wants access to privileged attorney-client communications, it will find a way to do so. This new incident, tied to the 9/11 trials, follows the news that the NSA gave Australian intelligence the go-ahead to intercept communications between an American lawyer and his Indonesian clients.

This previous incident resulted in the American Bar Association sending a letter to the NSA asking it to uphold the sanctity of attorney-clients communications. Gen. Alexander's response was basically "of course we respect that, but we grab so much stuff there's no way for us to guarantee we'll never intercept privileged communications." Not much in the way of reassurance there, and this following story shows there's even less reason to believe that investigative and national security agencies won't insert themselves into the attorney-client relationship.

Two weeks ago, a pair of F.B.I. agents appeared unannounced at the door of a member of the defense team for one of the men accused of plotting the 9/11 terrorist attacks. As a contractor working with the defense team at Guantánamo Bay, Cuba, the man was bound by the same confidentiality rules as a lawyer. But the agents wanted to talk.

They asked questions, lawyers say, about the legal teams for Ramzi bin al-Shibh, Khalid Shaikh Mohammed and other accused terrorists who will eventually stand trial before a military tribunal at Guantánamo. Before they left, the agents asked the contractor to sign an agreement promising not to tell anyone about the conversation.

With that signature, Mr. bin al-Shibh’s lawyers say, the government turned a member of their team into an F.B.I. informant.

There's not much more available detail-wise, as the defense's motion informing the court of this subversion is -- like most of the documents related to this trial -- under seal. But everything leading up to this new revelation indicates the government views this trial to be a forum where the normal rules just don't apply.

To begin with, this was never meant to be much more than a show trial. The special tribunal system was set up by President Bush after the 9/11 attacks, specifically for suspected terrorists. (Despite the stacked deck -- foreign terrorism suspects aren't afforded the same legal protections as US citizens -- the court has yet to secure a conviction in its 12+ years of existence.) This special system has resulted in several instances of access to attorney-client communications, some intentional and others (supposedly) more inadvertent.

Last year, the government acknowledged that microphones were hidden inside what looked like smoke detectors in the rooms where detainees met with their lawyers. Those microphones gave officials the ability to eavesdrop on confidential conversations, but the military said it never did so…

A botched computer update gave prosecutors and defense lawyers access to the other side’s confidential work. And the Pentagon acknowledged inadvertently searching and copying defense lawyers’ emails but said nobody read them.

And it's not just the defense that's bothered by these incidents.

Christopher Jenks, a Southern Methodist University law professor and a former military prosecutor, said he sympathized with the Guantánamo prosecutors, who appeared to have been just as surprised as defense lawyers by the appearance of the F.B.I. and C.I.A. in their cases.

But even more troubling is the fact that an agency supposedly uninvolved in the proceedings has gone so far as to subvert the judicial process altogether.

Last year, as a lawyer for Mr. Mohammed was speaking during another hearing, a red light began flashing. Then the videofeed from the courtroom abruptly cut out. The emergency censorship system had been activated. But why? And by whom? The defense lawyer had said nothing classified. And the court officer responsible for protecting state secrets had not triggered the system. Days later, the military judge, Col. James L. Pohl, announced that he had been told that an “original classification authority” — meaning the C.I.A. — was secretly monitoring the proceedings. Unknown to everyone else, the agency had its own button, which the judge swiftly and angrily disconnected.

After witnessing the amount of effort the CIA has made in order to thwart the release of the torture report, it's of no surprise that it tried to control the narrative here as well. It's also no surprise the agency feels it should defer to no one, not even a presidentially-directed tribunal.

The government does have a little more leeway, considering these aren't your normal, subject-to-due-process trials, but it's still problematic that despite the advantages of a quasi-tribunal set up by a presidential order in the wake of the 9/11 attacks, government investigative agencies still feel compelled to not only insert themselves into the process, but to subvert client-attorney privilege on top of it. All's fair in the War on Terror, it would appear, even when those suspects are safely locked up and going into their second decade of detention as the broken process labors on.

Filed Under: 9/11, attorney-client privilege, cia, fbi, guantanamo, nsa, show trial

Guantanamo Bay Authorities Ban Solzhenitsyn's 'The Gulag Archipelago'

from the stranger-than-fiction dept

Some stories, you just couldn't make up. Like this one, reported on the UK site Reprieve, about a failed attempt to pass some reading material to one of the people detained at Guantanamo Bay. Something unsuitable you might guess, perhaps advocating terrorist ways? Well, not exactly:

The legal team for Shaker Aamer, a British resident who has been detained in Guantanamo without charge or trial for 11 years, attempted to deliver a copy of The Gulag Archipelago by Alexander Solzhenitsyn during a recent visit.

However, Mr Aamer has now told his lawyers that he never received the book.

Of course, this isn't the first time that 'The Gulag Archipelago' has had problems with the authorities: when it was completed in 1968, it had to be smuggled out of the Soviet Union on microfilm so that it could be published in the West. Here's what Wikipedia has to say on the book and its importance:

Solzhenitsyn argued that the Soviet government could not govern without the threat of imprisonment, and that the Soviet economy depended on the productivity of the forced labor camps, especially insofar as the development and construction of public works and infrastructure were concerned.

This put into doubt the entire moral standing of the Soviet system. In Western Europe the book eventually forced a rethinking of the historical role of Lenin. With The Gulag Archipelago, Lenin's political and historical legacy became problematic, and the factions of Western communist parties who still based their economic and political ideology on Lenin were left with a heavy burden of proof against them. George F. Kennan, the influential U.S. diplomat, called The Gulag Archipelago, "the most powerful single indictment of a political regime ever to be levied in modern times."

Now why on earth would any of that be problematic for the Guantanamo Gulag, er, Bay authorities, I wonder...?

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Filed Under: gitmo, guantanamo, solzhenitsyn, the gula archipelago

US Releases Redacted Document Twice... With Different Redactions

from the [redacted]-if-we-[redacted] dept

We've talked repeatedly about just how arbitrary the feds can be when it comes to redacting documents that they release. Despite the fact that they're supposed to err on the side of transparency, they often go in the other direction. However, it can reach absolutely ridiculous levels, such as when they release the same document twice... with different redactions, revealing what they redacted. Even worse, they claim that the redactions were necessary to avoid having Al Qaeda be able to break prisoners out of Guantanamo Bay prison. The document was released both times as part of a case concerning detainees' access to lawyers and (more specifically) the fact that the prison was conducting "genital searches" on prisoners if they wanted to meet with their lawyers.

Part of the case revolves around a declaration from June 3rd from Guantanamo prison warden Colonel John Bogdan explaining why the genital searches are necessary. However, the US government says that if that declaration is fully made public it "would better enable our enemies to attack the detention facilities at Guantanamo or undermine security at the facility." Got that? The reason Bogdan's declaration must be redacted is that not redacting key parts would allow Al Qaeda to attack the prison.

Given that, the US government released a redacted version to a reporter... apparently forgetting (or unaware) that they had already released a different redacted version a month ago in a related proceeding on the same case. Jason Leopold at Al Jazeera explores some of the differences:

Indeed, in the public version of Bogdan's declaration submitted to the appeals court last month, the following passage is unredacted:

If the detainee would need to use the restroom in Camp 6, the meeting must end and the detainee would need to be moved by guard staff back to his cell.

The same passage, however, appears this way in the version of Bogdan's declaration released on Friday:

If the detainees would need to use the restroom in Camp 6 [redacted].

Another passage in Bogdan's declaration released on Friday says:

The frisk search that is conducted is to ensure there is nothing concealed between the clothing and the body.

However, the word "frisk" is redacted from the public version of Bogdan's declaration submitted to the appeals court last month. The earlier version also says: "At no time is the detainee's actual groin exposed to the staff," whereas that passage is redacted in its entirety in the version of Bogdan's declaration the government released on Friday.

A passage in the earlier version of Bogdan's declaration says:

Additionally, for security reasons, internal moves could not be conducted in proximity to the attorney visits.

That sentence has been redacted in the version of Bogdan's declaration released on Friday.

Another passage in the most recent version of Bogdan's statement says:

During the brief movement to the camps, detainees are restrained in a manner consistent with standard procedures for military corrections.

However, the last part of that sentence, "in a manner consistent with standard procedures for military corrections", was redacted in the public version of the declaration the government released last month.

Leopold also notes that the government claims that revealing the full document would also reveal "details about the physical layout of the detention facilities," but points out this makes no sense at all, because you can view satellite images of the prison via Google maps, and tons of reporters have toured the prison and written about the layout.

No matter what, it seems abundantly clear that, yet again, the US is giving bogus reasons for its arbitrary redactions.

Filed Under: classified, guantanamo, redactions, secrecy

Knowing The Government Is Spying On You Changes How You Act

from the if-you've-done-nothing-wrong? dept

We've already had a few posts discussing why the whole "if you've done nothing wrong, you've got nothing to hide" argument is bogus, but this weekend's edition of the radio show This American Life had a fantastic short section in which the host, Ira Glass, spoke to lawyers for detainees at Guantanamo Bay, who are all pretty certain that every one of their phone calls is being recorded and listened to. What's amazing is the emotional response you hear from most of these lawyers, who recognize that they can no longer comfortably speak freely to anyone on the phone ever again. The stories of them not being able to be emotional with their children when speaking to them on the phone, or in which their friends accuse them of being especially curt and officious whenever they call are somewhat heartbreaking.

These are the things that many people simply don't recognize about the psychological impact of a surveillance state. When you have no real downtime -- no time when you can be free from prying eyes, it messes with your brain in a really profound way. This short segment (just 8 minutes long) really highlights how much a little thing like the inability to ever speak to someone privately changes your entire way of speaking and communicating. As we seem to be drifting rapidly towards such a surveillance state, these are the issues that we should be thinking about and understanding. There may be certain benefits to being able to do widespread surveillance, but we should not and cannot ignore the costs.

Filed Under: culture, emotions, guantanamo, lawyers, nsa, nsa surveillance, phone calls, privacy, surveillance

What If A Court Gave An Important Ruling, But We Were Not Allowed To Know What It Was?

from the sign-of-the-times dept

That Anonymous Coward alerts us to the news that DC federal appeals court has issued a ruling (pdf) in the case of Gitmo detainee Adnan Farhan Abd Al Latif, but the entire ruling is classified, so the public has no idea what it says. A ruling last year at the district court had ordered the administration to release Latif for lack of evidence that he had anything to do with Al Qaeda. And now... we have no idea what the government is ordered to do or not do. So what do we do in a time when the federal government gets to come up with secret interpretations of law and then can have court rulings on related issues entirely hidden from the public?

Filed Under: adnan farhan abd al latif, gitmo, government, guantanamo, secrecy, transparency

Lawyers For Guantanamo Detainees Not Allowed To Look At Important Leaked Evidence

from the this-is-stupid dept

In the business world, if you sign a non-disclosure agreement, it's well accepted that if the information covered in that agreement later becomes public through other means, you are no longer bound by the agreement. This makes sense. After all, why should anyone be forced to clam up about information that's already public. And, yet, for no good reason at all, it seems our government prefers a system where everyone is supposed to keep their head in the sand about public info. Witness the mind-numbingly bizarre claim that lawyers for Guantanamo detainees are not allowed to look at the documents that a bunch of newspapers released earlier this week (the documents allegedly came from Wikileaks, but apparently Wikileaks itself did not release them to the newspapers). Yes, these documents are all over the news and are widely available from multiple sources... yet the government has warned the lawyers not to look:

On Monday, hours after WikiLeaks, The New York Times and other news organizations began publishing the documents online, the Justice Department informed Guantanamo defense lawyers that the documents remained legally classified even after they were made public.

Because the lawyers have security clearances, they are obligated to treat the readily available files "in accordance with all relevant security precautions and safeguards" -- handling them, for example, only in secure government facilities, said the notice from the department's Court Security Office.

The NY Times, rightly, calls this "absurdist." I'd call it out right stupid. It's head-in-the-sandism. If the information is public, live with it. It's public. Pretending that public information is not public doesn't help anyone. It just makes it look like the government is in denial and not dealing with reality. Frankly, I'd much prefer a government that can deal with reality to one that tells everyone to cover their eyes and ears and pretend reality doesn't exist.

Of course, this is not the first time we've seen this. With just Wikileaks, we saw it a few months ago when parts of the federal government barred employees from looking at the site and its leaks, using the identical rationale. So, despite the fact that everyone else in the world could easily see those documents, the ones who it might impact the most have to pretend that the documents are not actually public.

It's government playing make believe.

It's also not unlike the ridiculous hoops the government made lawyers go through in the al-Haramain case, in which the government accidentally leaked a document proving that it had wiretapped without a warrant. And despite the fact that the document had been leaked, it was required that lawyers for al-Haramain pretend the documents were still secret, leading to an absolutely insane process by which the lawyers had to destroy all of the copies they had of this info, and could only refer to it obliquely from memory, with a Justice Department official watching over them, with the ability to force them to stop talking about certain aspects.

None of this makes any sense. Just like we have "security theater," this appears to be "classification theater." These documents are not classified any more. Period. Pretending they are is a charade that the government is putting on which everyone knows is a lie. Isn't it time we had our government stop pretending and start dealing with reality?

Filed Under: government, guantanamo, leaks, reality, secrecy