6-20-2013By Adam Jacobson
Law and Security
Guantanamo Bay, Cuba – It’s day three of the military commission of Khalid Sheik Mohammed and his four coconspirators. On the agenda: attorney-client privilege. Does it exist, or not in military commissions? The answer isn’t as simple as you’d think.
The day began with the testimony of the former Joint Task Force (JTF) Commander Rear Admiral David Woods. Via a dysfunctional video feed, Woods said it was not his intent to issue contradictory, unworkable orders attorney client privilege…that just happened to be the result.
In 2011 Admiral Woods gave a communications order that set out to define what documents or information were “privileged” (able to be shared between an attorney and client privately), non-privileged (would have to be sent to the detainee though the mail and be examined), and contraband (would not be allowed to pass from attorney to client).
The rules he laid out were not so cut and dry. The order stated that anything could be privileged if it related to the case and formatted in the correct way. But in other places the order stated that some materials were always non-privileged or contraband, with no exception. Commentary, as well as historical perspectives on jihadism, fell into this second, always-non-privileged-no-exceptions category.
To complicate matters further, at the time when Admiral Woods enacted the order, there was no trial and no judge. This meant that the defense attorneys had to submit materials to him or to JTF Command staff. Since neither Admiral Woods nor his staff had attorney-client privilege, that would have been an ethical violation for the defense attorneys. Does that all sound confusing? Apparently not to Admiral Woods.
During his testimony, Admiral Woods seemed baffled that there was any confusion over the orders, insisting that anything could be privileged if it was a product of the attorneys and marked correctly. When confronted with the contradiction in the order, he maintained that he had not intended for anything to be declared non-privileged or contraband outright. He apparently decided that if the defense attorneys insisted that attorney-client privilege was important to the case, he would grant an exception. There was just one slight problem: he didn’t inform the defense attorneys that he’d added that exception.
This may seem deep in the legal weeds, but here’s the upshot: Defense attorneys for the 9/11 defendants faced contradictory and legally unethical rules about what kind of documents and information they could share with their clients. The Chief Defense Counsel even ordered the defense attorneys in this case not to follow the rules set out by Admiral Woods, barring them from sharing any attorney-client materials with JTF Guantanamo, who was be under no obligation not to disclose that private information.
And as has been par for the course so far, there were technological problems with the video feed to Admiral Woods, who was testifying from a Naval base in California. Wednesday, there were problems seeing documents on the feed – at one point explained as “not enough bandwith to go around” (real quote), causing yet another delay in hearings already beset with delays.
This is the reality of the military commissions here at Guantanamo: A system so inexperienced that it cannot even abide by rules of attorney-client privilege, on an island that has debilitating technological problems with important witness testimony. It’s just not good enough for any trial, let alone one as important as the 9/11 trial.