Guantanamo Chief Military Defense Lawyer Orders His Attorneys Not to Agree to Communication Monitoring

ACLU | January 11, 2012

Citing Attorney-Client Privilege, Col. J.P. Colwell Tells Military Lawyers That Following New Prison Rules Would Be Unethical

NEW YORK – The top defense lawyer for the Guantánamo military commission system has ordered the attorneys under his command not to comply with rules issued by the Guantánamo prison chief that require Defense Department screening of all written materials lawyers want to send to their clients.

In an email sent Sunday and obtained by the American Civil Liberties Union, Marine Col. J.P. Colwell, the chief military defense counsel for the commissions, informed all military commission defense lawyers that they were ethically obligated to refuse to follow the rules, which were issued last month. The email is available on the ACLU website.

“Col. Colwell joins an honorable line of Guantánamo military lawyers who have opposed superiors’ attempts, ostensibly in the name of security, to undermine longstanding rules necessary for a fair trial,” said Zachary Katznelson, senior staff attorney with the ACLU National Security Project. “In seeking to force military defense counsel to cast aside their professional ethical obligations of client confidentiality, the new rules fly in the face of American justice and tradition. Once again, the government’s actions show exactly why these cases need to be in federal court where the rules are established, fair and effective.”

Guantánamo’s commander, Navy Rear Adm. David Woods, issued the rules on monitoring legal communications on Dec. 27. Under the rules, any information provided by lawyers that military censors found objectionable, such as communications about U.S. personnel who tortured the prisoners, could be kept from the prisoner and brought to the attention of the base commander. This would eliminate attorney-client privilege.

The new prison rules say that defense attorneys must agree in writing to the monitoring as a condition of communication with their clients. In his email, Colwell told military commission defense lawyers that they should not sign the monitoring agreement, and if they already had signed, then they should immediately withdraw from the agreement. Citing the ethics codes that govern every branch of the military, Colwell wrote that following the agreement and revealing such information would be “in violation” of rules for professional conduct.

The rules on communication monitoring issued by Guantánamo’s commander are available at:

www.aclu.org/national-security/orders-governing-logistics-defense-counsel-access-and-written-communications

More information on Guantánamo is available at:

www.aclu.org/close-guantanamo

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