March 15, 2011 / by emptywheel


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.

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