DOD: Defense Attorneys Can’t Tell Detainees What They Said

DOD just issued a new protective order that will cover the military commissions they’re about to roll out. (h/t Carol Rosenberg) I’m still reading the document. But I wanted to highlight this requirement.

Statements of the detainee that detainee’s counsel acquires from classified documents cannot be shared with the detainee absent authorization from the appropriate government agency authorized to declassify the classified information.

In other words, the lawyer of Rahim al-Nashiri–who is reportedly going to be the next detainee charged–can’t tell al-Nashiri what the government alleges he said under torture.

But don’t worry. President Obama assured me these military commissions will deliver real American-style justice.

Update: This is interesting, too:

In the event that classified information enters the public domain, counsel is nonetheless precluded from making private or public statements about the information.


Only after classified information has been properly declassified by appropriate authority may formerly classified information in the public domain be the subject of public or private statements from counsel.

We know WikiLeaks still has the Gitmo documents. So some information presumably is going to enter the public domain in the foreseeable future. But DOD is pre-emptively gagging attorneys so they can’t talk about what’s coming.

Update: DOD won’t let attorneys use information they acquire in defending detainees to sue the government for torture.

Protected information shall be used only for purposes directly related to these cases and not for any other litigation or proceeding, except by leave of the military commission or the Convening Authority.

  1. BoxTurtle says:

    The worse they make it, the easier it will be for a real court to declare the entire mess unconstitutional.

    ObamaLLP just trying to delay that decision until Obama is out of office, just like BushCo did with Bush. And they’ll probably succeed. Even if someone was convicted today, Obama would still likely be gone (I hope!) before the supremes get it.

    And why are we bothering with this kabuki anyway? Even if found not guilty, ObamaLLP will still try to detain them indefinately.

    Boxturtle (And if detention is overturned, I bet Obama renders the POWs to somewhere outside US jurisdiction)

  2. praisegodbarebones says:

    I’m finding it difficult to imagine why you’d want to stop someone from telling a defendant what they were alleged to have said unless you were planning to make stuff up in order to convict them more easily.

    What’s the supposed justification? And what safeguards – if any – are there to prevent this from happening?

    • emptywheel says:

      If pushed, I’m sure they’d say they didn’t want people to know how they were electronically surveilled.

      But really, they probably want to prevent lawyers from putting 2+2 together on torture.

    • NMvoiceofreason says:

      There are several viable reasons that do not involve bad faith on the part of the DOD and DOJ (despite the fact that is what it is). First is that the information about the detainee may have been obtained through HUMINT (a spy, rat, etc), and such human sources have traditionally been protected. Second, is that information about the detainee may have been obtained through SIGINT (warrantless wiretapping, signals intelligence, etc.) and such electronic sources have traditionally been protected (and completely legal outside the US). Third is that materials which have been confiscated (diaries, plans, maps, schedules, etc) may in fact show both the intelligence sources and methods used to obtain them. An HVD presumably has been tainted by all of the above, and is thus a walking classified breach of security. Showing a detainee a map, which he authored, may in fact reveal that Nassim has been captured, since Nassim was the last person to have it…. If you are of the counter-intelligence frame of mind, these people are a threat to the very means we use to discover them.

      Unless you consider the fact they are classifying torture, and the identities of torturers, which is prohibited by law. This is another problem they are trying to prepare for, when the courts order them to turn that information over into the light of day. Just look at where Padilla v. Yoo is heading, and you can see the window is closing on their ability to control it. So they make up new rules, and they argue that courts can’t order anything declassified – until the Supremes step in and squash their little parade. But this is all about what happens after that, and how they ride that bucking bronco – if it comes to that.

  3. Mary says:

    EW – I think a part of the the “can’t talk about it even if it is in the public domain,” while it no doubt has wikileaks attachments, is also primarily related to a case like the one they had with Murat Kurnaz. In that case, they had a big ol honkin classified file that was all exculpatory except this one document that a helpful guy at DOD drafted and tossed in the file so the CST would have something to hang their hat on.

    Kurnaz has originally been accused of being pals with a suicide bomber (except that suicide bomber was actually, as the Germans’s confirmed in the classified contents of the file, not a bomber, never left Germany, and was alive and well). Despite the reams of exculpatory evidence from multiple intelligence services, if the CSRT fournd that he had never been an enemy combatant at all, then they had that war crimes problem, so they rigged up some memo that including things like, IIRC, the fact that he prayed during the pledge of allegiance or something equally bizarre.

    Anyway, long and short is that when his habeas finally got to Judge Green and the Judge required them to produce some of this “classified info” the Judge granted habeas and had a brief discussion of the nonsensical memo. That discussion was briefly un/de classified (can’t remember which) and WaPo reported it publically. THen everything was coralled up, stamped classified, and I remember seeing that DOJ was warning Kurnaz’ lawyers that they couldn’t use any of the public domanin info on how nutso and craptastic the “classified memo” was, bc it was, ya know, classified.


    Nasty, petty, backward, ugly, and shamefu.

    • emptywheel says:

      You’re probably right–in any case, that restriction is in the DC District habeas protective order too.

      Note some of this would prevent lawyers from sharing pictures of torturers w/detainees.

  4. john in sacramento says:

    Roland Freisler would love these guys


    The accused were unable to consult their lawyers, who were not seated near them. None of them were allowed to address the court at length, and Freisler interrupted any attempts to do so


    And in some ways, they’ve even gone farther than he did


    The defendants were not allowed to choose their own legal counsel; they and the public defender were permitted to review the charges and specifications only shortly before the proceedings


  5. WilliamOckham says:

    This is the part that I find bizarre:

    Without authorization from the government, no detainee or detainee’s counsel shall have access to any classified information involved in these cases unless that person has done the following:

    a. received the necessary security clearance from appropriate DoD authorities and signed an appropriate security non-disclosure agreement as determined by the Special Security Officer;

    For the so-called HVDs (i.e. the people the CIA tortured), everything they say is presumptively classified. Taken to its logical conclusion, this order means that they are in violation merely by remembering what happened to them.

    [Emphasis added]

    • dakine01 says:

      IIRC, back after the invasion of Panama when Noriega was being charged and tried, his attorney’s had to get TS/SCI clearances to gain access to documents but Noriega could not see the documents, even though he had generated many of them himself.

      • WilliamOckham says:

        I think I would blow a gasket trying to tease out all of the logical conundrums inherent is this scheme. Imagine being a lawyer for one of the HVDs. If your client says the sky is blue, you can no longer confirm or deny that the sky is blue until the appropriate agency (the CIA) clears that statement.

    • thatvisionthing says:

      Traffic court. I read this story once. Starts like this:

      And McJustice for All

      How traffic court is still the best place in the land to watch the system run over your rights

      By J. Douglas Allen-Taylor


      “When did you begin?” [said the King].

      “Fourteenth of March, I think it was,” [the Hatter] said.

      “Fifteenth,” said the March Hare.

      “Sixteenth,” added the Dormouse.

      “Write that down,” the King said to the jury, and the jury eagerly wrote down all three dates on their slates, and then added them up, and reduced the answer to shillings and pence.

      “Take off your hat,” the King said to the Hatter.

      “It isn’t mine,” said the Hatter.

      “Stolen!” the King exclaimed, turning to the jury, who instantly made a memorandum of the fact.

      “I keep them to sell,” the Hatter added as an explanation. “I’ve none of my own. I’m a hatter.”

      Here the Queen put on her spectacles, and began staring hard at the Hatter, who turned pale and fidgeted.

      “Give your evidence,” said the King, “and don’t be nervous, or I’ll have you executed on the spot.”

      The trial scene from Lewis Carroll’s ‘Alice In Wonderland’

      I TOTALLY hope someone makes a movie of Gitmo trials before they occur. Wonderland Security.

  6. Knut says:

    It’s all very simple. Anything revealed under torture is top secret, because the torture is top secret. Thus, nothing can be revealed that was said under torture. And like the tree that falls in the forest that nobody sees, there is no torture because nobody sees it. There never was any torture. We have always been at war with South Asia.

  7. rosalind says:

    ot: my new TSA diary lasted about a second on the recommend list due to the far more important Japan breaking news, but I want to repeat one thing for those concerned about the Radiation Scanners: there is hearing tomorrow, Wednesday, March 16, 2011, 9:30am EST, of the U.S. House Oversight and Government Reform Subcommittee on ‘TSA Oversight Part I: Whole Body Imaging‘.

    Rep. Sharron Cissna (D-Anchorage) will be testifying. She is a breast cancer survivor who refused the “enhanced pat-down” and took the ferry home instead, having gone through the pat-down before and finding it such a personal violation she swore never to go through it again.

    The hearing will be streamed live at

  8. Jeff Kaye says:

    The classification of what the detainees say, or of the evidence, has been going on for some time, hamstringing what the attorneys can publicly say.

    In the event that classified information enters the public domain, counsel is nonetheless precluded from making private or public statements about the information.

    This latter part is surely among the most insane, and is reminiscent of the flap at Khadr’s trial when journalists reported the name of one of the interrogators, which had already been publicly revealed, but were banished (for a time) for having done so.

    Here’s Guantanamo detainee attorney Frank Goldsmith talking about these kinds of restrictions a few weeks ago. His comments refer to events that predate, I believe, the latest codification of these matters, as referencing the various blog postings of Candace Gorman will substantiate:

    WCT: Currently you represent two Afghan men held since 2002 and 2003 at Guantanamo—Sharifullah and Khairullah Khairkhwa. How did these men come under U.S. custody?

    FG: I should preface this discussion about specific clients by saying there is a very restrictive and onerous Protective Order entered by the Federal District Court in D.C. You have to agree when representing [Guantanamo detainees] that you will abide by this Protective Order. It provides that all of the information, other than what is in the public record about the men, is classified and can only be reviewed at what’s called the Secure Facility just outside of Washington, D.C. in Crystal City. That’s where all of the attorneys, no matter where they are in the country, have to come to work on their cases. We are restricted from revealing, even to our clients, anything that is classified. For example, we can’t tell our clients what evidence the government has on them, if they have anything at all. You can imagine how difficult that makes it to represent them. Anything that our clients tell us in Guantanamo is classified as well, so we can’t reveal that, not only to anybody else, but the government actually seizes our notes that we take from our interviews and submits them to what’s called a Privilege Review Team. And if we want to have those notes sent to us they have to undergo a declassification process. It’s really a Kafkaesque world in a lot of ways. For that reason, I have to be careful about what I say in any kind of public forum, or private forum for that matter, about the specific allegations about these men.

    If anything, it’s become worse under Obama than under Bush.

    • earlofhuntingdon says:

      The blanket prohibition would seem to include detainee allegations that they have been tortured, too. Somewhat hamstrings their participating in their own defense, a hurdle not shared by the government. Nope, can’t have trials or commissions if the government doesn’t win ’em.

    • earlofhuntingdon says:

      If anything, it’s become worse under Obama than under Bush.

      It has. He’s like a Norman invader, replacing easily defeated wooden redoubts and stockades with castles built of stone, making them permanent and building entire communities of interest around them. Astonishing and reprehensible.

      Keeping us safe, even in rhetoric, has morphed into keeping the administration safe as the government’s primary or only goal.

  9. hcgorman says:

    Well…dare I say, everything has become worse in the gitmo litigation under GW obama. I will start by just saying that every document is pretty much considered classified now and in the past (pre October 2008) the documents were declassified within a few days- now they are never declassified unless you can get a judge to order it declassified. I have a motion pending right now begging judge Leon to declassify my remaining clients Traverse- the final pleading in the habeas case- so that the world can see that there is another side to my client’s story (I also need it declassified so I can let my client know he does have valid defenses and to discuss with him his appeal…and for various other reasons) We shall see what,if anything, the judge does.
    My latest infraction involved inviting people to share with me on my blog what they learned from the wikileaks if it involved guantanamo. I was forced to take that blog down (and please don’t share with me…even if tempted) because the DOJ (who monitors my blog) called the court security office to complaint that I was in violation of the protective order. After a “discussion” I was “allowed” to leave up that portion of my blog referring to Wikileaks as hero’s- but not allowed to ask people to post or email any wikileaks related to gitmo. Two years ago I had a similar (but different) battle but I won’t bore you with those details now.
    We habeas counsel have also long been forbidden to talk with our clients about anything classified-even if the classified information originally came from our clients.
    There is some quote about fighting with one hand behind your back but from where I sit one hand almost seems fair.

    • emptywheel says:

      I’m particularly interested in the fact that they made you take down that WL bit–as I suggested above, I imagine they’re going to really try hard to prevent lawyers from using the Gitmo release if and when WL ever releases it.

      Is that something I can post on? Given all the attention on WL, it might get picked up in wider fashion.

      • hcgorman says:

        I sure don’t see any reason why you can’t post on it I just don’t want people sending me posts to try to “help me.” My client’s interest is my biggest concern which is why I maintained the fight for my own first amendment right to an opinion but pulled back about the wikileaks when I thought I might not win on that issue (given my security clearance and the fact that the email documents were classified). I already had a court order in my other case that the rest of the world could talk about a certain issue involving my other client…but I could not (sigh).
        It turns out the court security office sent out an email to all of the habeas counsel when the first wikileaks emails were dumped-warning us not to look at them or talk about them or dream about them or some shit- but I was too busy preparing for my client’s habeas hearing and didn’t notice- and DOJ was busy doing everything it could to undermine the hearing and they didn’t notice my post- so several weeks after the hearing was over they got back to their spying and reported my post…

    • NMvoiceofreason says:

      I think it is actually worse than that.

      Statements of the detainee that detainee’s counsel acquires from classified documents cannot be shared with the detainee absent authorization from the appropriate government agency authorized to declassify the classified information.

      This goes back to the Bushco argument that judges can’t order anything declassified. Even when published, even when known by the entire world, if they don’t want it to be declassified, it isn’t. See in re Sealed Document in Al-haramain.

  10. earlofhuntingdon says:

    No point in having a level playing field if it means a prisoner might avoid conviction. Mr. Obama seems to be institutionalizing every excess of the Cheney administration, isn’t he?

  11. Mary says:

    Way epu’d, but here are a few other reasons to not let a detainee or lawyer know what is in the file about what he said:

    1. False confessions cannot be isolated and highlighted as being fals confessions. As a result, the myth of torture as an infallible intelligence tool goes unchallenged and alos, in a very real way the evidence of torture – physical or psychological – ends up suppressed. There’s nothing so in-you-face on torture as trying to answer “why did they say that” when faced with a false confession. Not because they were receiving humane treatment.

    2. The defense is robbed of information that proves innocence. If “everything” about allegations that someone was involved in a meeting with al-Qaeda operatives or at an al-Qaeda camp is classified, including a detainees confession that they were at the meeting or the camp, it becomes very difficult for lawyers to gather responsive evidence. For example, in the case of the British citizens who survived some of the shipping car killings and were then sent to GITMO, some of the secret evidence was that they were involved in a meeting with Bin Laden – that they were previously unidentified guys in a bad pictures of Bin Laden. IOW – someone in intel had created a big win out of whole cloth. THis way, the shipping car guys could be kept in a black hole, never to discuss the American endorsed shipping car atrocities they survived AND to now become some big “catch.”

    The problem was, the timing of the picture was known and the British intel service was uncooperative. They pointed out that the guys were all accounted for during that time frame and could not have been in the picture. So if lawyers and detainees can’t discuss the classified evidence, they can’t get to very simply resolved issues like that one.

    Another instance would be Errachidi, sold over in Pakistan, shipped to GITMO, and held as being a “general” of an al-Qaeda training camp. With known bipolar disease, they proceeded to use isolation to break every bit of his mind they could to support this fiction of him as a general of the “enemy combatants.” But he was actually in Mayfair, making souffles (he was/is a chef) at the time he was supposed to be running a training camp. Very easily proven. But only when a lawyer can talk to their client.

    And then there was Murat Kurnaz who I mentioned above. It makes it a lot easier to confirm that the mysterious suicide bomber friend of your client is actually alive and playing wii in Battenburg if you get to talk to your client about the allegations.

    So whatever the reasons that they give for not allowing the client and lawyer to discuss the information, what we’ve seen over and over, in actual application, is that the “rules” have been used to suppress information of US depravity and prevent the truth about the illegal detention of detainees from coming out. And the reason that is such a desparately protected goal is easy too, unfortunately. The fact of GITMO as an out-of-country torture center immediately raised the stakes with respect to everyone sent there, no matter how they were treated. Because the fact of GITMO as a place where non-combatants were sent is, in and of itself, a war crime.

    So the geniuses (the Yoos, Philbins, Haynes and Goldsmiths, with sides of Addingtons) who set up the framework for GITMO actually set up a framework where everyone involved immediately upon shipment had huge and unavoidable needs to lie and cover up the truth of a detainees status. Because the mere fact of shipment of non-combatants to GITMO was a war crime – even without the torture. And while they probably felt competent to cover up the torture, covering up the existence of noncombatants in the torturedetainee population was much more difficult. Especially after habeas.

    But this was something that apparently gobsmacked the guys who thought up and fought for the legal framework. Who could have imagined that when you sent out mass invitations to engage in human trafficking with war lords that they’d sell you any innocent people?