an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Two weeks ago, I made my first trip to Guantánamo Bay, Cuba. I went as a representative of one of several non-governmental organizations invited to observe the military commissions that the government has established to try terrorist suspects it does not wish to try in federal court.
A few days before the trip, the Office of Military Commissions e-mailed me a twelve-page Power Point presentation of information for travelers. It appeared to have been written primarily for military personnel and was sprinkled with indecipherable jargon and acronyms, but as I anxiously skimmed the bullet points for my marching orders, my eyes fell upon this clear directive:
“It is illegal to harm, kill or eat an iguana.”
At last! The rule of law has come to Guantánamo!
There were no caveats, no exemptions, no loopholes, no equivocations. To my knowledge, the Office of Legal Counsel has issued no opinion concluding that the statute prohibiting the harming of iguanas does not constrain the President when acting as Commander-in-Chief—as it did when construing the equally clear language of the statute prohibiting torture. Nor has that office, to my knowledge, shown the same creativity in defining “harm” that it showed in defining “torture,” when it opined that a person hasn’t been tortured unless he experiences the kind of pain associated with “organ failure” or death. The government has not argued that Congress surely did not intend the law to extend to Guantánamo Bay—as it did when detainees sought to avail themselves of the statutory right to habeas corpus.
As others have observed, the impressive 20-pound lizards who roam the island are experiencing a very different Guantánamo than the nearly 800 detainees who have been imprisoned there since 9/11. For those detainees, the story of Guantánamo can be boiled down to a series of efforts on the part of the government to avoid the clear application of the law. As the Supreme Court has repeatedly rejected these efforts—holding that the President cannot create ad hoc military commissions without congressional authorization, that due process requires giving U.S. citizens a meaningful opportunity to contest their status as “enemy combatants,” that detainees have a constitutional right to challenge the basis for their detention—the government’s efforts to avoid the law have become more limited, less brazen. But they have not stopped. The government’s propensity to get creative with the law was on full display in the pre-trial hearing I attended in the case of Abd al-Rahim al-Nashiri. Al-Nashiri, a Saudi citizen, is charged with planning the 2000 bombing of the U.S.S. Cole, which killed 17 sailors. Arrested in 2002, al-Nashiri spent the next four years in secret CIA prisons, where (according to a CIA Inspector General report) he was waterboarded, threatened with a loaded gun, and interrogated with a revving power drill next to his head. Al-Nashiri, who faces the death penalty, will likely be the first “high-value detainee” to go to trial—although that may not be until 2015.
The main issue before the Commission at the hearing was attorney-client privilege. A defendant in regular criminal proceedings has a constitutional right to confidentiality in his communications with his attorney. The rights to effective assistance of counsel and due process, as well as the right not to incriminate oneself, would be meaningless if the government could eavesdrop on these attorney-client exchanges.
The government says that the Constitution ends at the tip of Florida; it relies instead on the Military Commission Rules of Evidence. But even those rules recognize attorney-client privilege. “[A] client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client . . . between the client or the client’s representative and the lawyer or the lawyer’s representative.” Clear enough. Communications between the detainees and their attorneys are like iguanas: protected.
Except when the government says they’re not. In December, Rear Admiral David Woods, the commander in charge of the detention facilities at Guantánamo, issued a policy allowing a team of contractors hired by the Defense Department—a so-called “privilege team” consisting of intelligence professionals and translators—to inspect the incoming legal mail of detainees involved in military commissions proceedings. At the hearing, Al-Nashiri’s lawyers asked the judge to bar implementation of the policy in his case.
The government’s attorneys assured the military judge that there was nothing to worry about, because the contractors were not actually “reading” the mail; they were just looking to see whether any “informational contraband”—defined as anything that the GTMO commander deemed “impermissible or inappropriate”—was in “plain view.” In two days of argument, however, they were able to cite only two types of information that that privilege team might uncover without actually reading a document: classified markings (which are not necessarily “contraband,” as al-Nashiri is entitled to receive some classified information about his case) and diagrams of the detention facilities (an example that prompted visible skepticism on the part of the judge, presumably because of the implausible implication that defense counsel might be conspiring with al-Nashiri to stage a jailbreak). The other examples of “informational contraband” listed in the policy—things like “current political or military events in any country”—could never be detected without the act of reading because they would be embedded in the text of the document. (If you’re asking yourself why al-Nashiri—who has been in captivity for a decade—can’t receive political news about “any country,” you’re not alone.)
Rather than speculate about whether the privilege team might be reading the mail, one of al-Nashiri’s lawyers, Lieutenant Commander Stephen Reyes, asked to have a member of the privilege team testify about what the team actually was doing. Commander Andrea Lockhart, one of the prosecutors, countered that the current practice of the privilege team was irrelevant: the judge in al-Nashiri’s case could place any restrictions on the team that he wished and would have complete control over its actions.
The next day, Lockhart confessed error. She admitted that the team was bound only by the terms of its contract, and neither the prosecutors nor Admiral Woods—who issued the privilege team policy in the first place—knew what that contract said. But Lockhart nonetheless assured the judge that he could enter an order specifying what he would like the contractors to do, and if they didn’t do it, surely whoever was supervising their contract would take some sort of employment action. Perhaps not surprisingly, the notion of an optional judicial order did not give her pause.
The government also repeatedly claimed that Admiral Woods’ policy, which applies to detainees in military commissions proceedings, is no different than the procedure that has been in place for years for another group of detainees—those who have filed habeas petitions in federal court. But when the judge requested a copy of the court order governing the privilege team in habeas cases, he discovered that the order permits the team to inspect incoming legal mail only for physical contraband: weapons, files, or the like. Instead of apologizing profusely for having misled the judge, Commander Lockhart maintained that, in fact, the order permitting inspection only for physical contraband had the exact same meaning as Woods’ policy, which permits inspection for both physical and informational contraband. There was no sign of cognitive dissonance in her presentation. This rule, like so many others, simply didn’t mean what it said.
Judge Pohl was no pushover. When Admiral Woods was late to give his testimony, Pohl scolded the prosecutors and admonished them to have their witnesses ready on time: “I really don’t care what their rank is.” He clearly will not entertain any suggestion that the officers who run the prison also run his courtroom. But by the same token, he appeared reluctant to insert himself in matters relating to the security of the detention facility—the purported reason for the privilege team review. Although he reserved judgment, he signaled that he is at least considering allowing some kind of “plain view” review. Which would simply confirm once again that at Guantánamo, no matter how clearly a rule may be stated, you can never be truly sure what it means or whether it will be followed.
Unless, of course, you’re an iguana.
Liza Goitein is Co-Director, Liberty and National Security Program, The Brennan Center for Justice. You can reach her by e-mail at goiteine at exchange.law.nyu.edu Posted
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