SAN JUAN, Puerto Rico ? The commander of the Guantanamo Bay prison has signed an order that would require a security review of legal mail to prisoners facing war crimes charges, a spokeswoman said Wednesday, rejecting arguments the new rule would violate attorney-client privilege and undermine long-delayed tribunals for five men charged in the Sept. 11 attacks.
Rear Adm. David Woods considered the arguments of defense lawyers and made some modifications, said Navy Cmdr. Tamsen Reese, a spokeswoman for the detention center on the U.S. base in Cuba.
Critics said the changes were minor and did not address the central complaints.
Woods retained a provision that would require the creation of a "privilege team," which would include law enforcement or intelligence officials as well as Defense Department attorneys, to review legal communications between lawyers and their clients, according to a copy of the order obtained by The Associated Press.
In issuing the order, the commander is seeking to prevent prisoners from receiving prohibited material without placing the burden for deciding what is appropriate on guards or other detention center staff, Reese said.
"He's trying to strike a balance," she said in a telephone interview. "He's got responsibilities. He's got to keep security and good order and force protection. And he's got to allow proper procedures for legal meetings between defense counsel and detainees and here's the way we're going to do it."
The order directs members of the privilege team to preserve attorney-client privilege "to the fullest extent possible," and sets guidelines for when they can disclose information from legal mail to other officials such as when they encounter what they suspect as "unauthorized information."
Those limits do not go far enough to avoid violating attorney-client privilege or making the order legal, said Bryan Broyles, the deputy chief defense counsel for the military commissions.
"What they keep wanting to do is to have their intelligence employees promise not to tell anybody about our communications and say that's good enough," Broyles said. "And as a matter of law it's not."
Broyles and the chief defense counsel, Marine Corps. Col. Jeffrey Colwell, said they were still doing a line-by-line analysis of the signed order that it appears that no substantive changes were made.
"They certainly didn't take anything we said into account," Broyles said.
Lawyers representing the five prisoners facing war crimes charges for helping to plan and carry out the Sept. 11 attacks had sent a memo to Woods opposing the order and calling for substantial changes.
Their memo said the new rules would deprive the prisoners of their constitutional right to counsel and make it impossible for lawyers, because of their professional and military codes of professional conduct, to participate in their long-delayed war crimes tribunal.
The five prisoners accused of helping to organize the Sept. 11 case are expected to be arraigned at the base in 2012 in what would be the most high-profile U.S. war crimes tribunal since the World War II era. The five, including the self-proclaimed mastermind of the attacks, Khalid Sheikh Mohammed, are facing charges that include murder and could be sentenced to death if convicted.
They are represented by teams of civilian and military attorneys, all of whom have security clearances required to visit prisoners who are kept under such tight security that the location of their cells on the base is considered secret and everything they say is considered presumptively classified.
Reese said Woods, who took command of the base on Aug. 24, softened language in the order that apparently added restrictions on attorney visits to their clients. "The orders doesn't impede defense counsel from personally visiting or communicating with their clients, which was never the intent but some of the language may have led them to believe that that was going to be the case."
The order still limits legal mail to only letters from lawyers to their clients, barring supporting documents such as legal motions or articles about their case. Such material may be sent through standard mail but would also be subject to review.
Broyles said that the defense believes that, for now, these new rules would only apply to the five prisoners who have been accused of helping to plan and carry out the Sept. 11 attacks. That's because a military judge has already rejected the creation of a similar review process in the only other active case at Guantanamo, the trial of Abd al-Rahim al-Nashiri, who is charged with orchestrating the attack on the USS Cole in 2000.
"They will have to go back to the judge to have this process in place" in the Nashiri case, Broyles said. "I think that will be an interesting conversation."
There is no judge yet in the Sept. 11 case because the charges against the five prisoners accused of helping to plan and carry out the attacks, including self-proclaimed mastermind Khalid Sheikh Mohammed, have not been finalized. They are expected to be arraigned in 2012.
The U.S holds 171 prisoners at Guantanamo and officials have said several dozen could be tried before a military tribunal.
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