The Secrets Military Commissions Keep that Civilian Courts Don’t

As I mentioned in my earlier post on the new Gitmo protective order, DOD is reportedly preparing to charge Abd al Rahim al-Nashiri for his role in the Cole bombing for trial in a military commission. That’s worth keeping in mind because the Gitmo order is largely based on the protective order the DC District Court uses for habeas cases. The Gitmo order chose not to simply adopt the DC District order, though, suggesting the differences may have been crafted for people like al-Nashiri.

While some of the changes are just procedural, others are more telling. A central difference is the assertion that everything a High Value Detainee says will be presumptively treated as Top Secret/SCI (an update to the DC District order, issued before Abu Zubaydah’s lawyers got materials in his habeas case, includes treatment of TS/SCI information). So anything al-Nashiri tells his attorney about the torture he suffered–including the torture still allegedly being investigated by DOJ–will be considered TS/SCI.

In a similar vein, the prohibition on sharing detainee statements in classified documents I mentioned earlier is an addition to the DC District order.

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.

Curiously, the Gitmo order includes an extra requirement before attorneys get access to classified information: that the attorney,

provid[e] to the Chief Defense Counsel detailed verifiable information regarding past employment, including a list of prior case assignments, to ensure against any conflicts of interest with the case to which detainee’s counsel is currently assigned.

I’m very interested in what “conflicts of interest” they have in mind. Particularly as it relates to al-Nashiri, remember that there was a JAG investigation into whether Kirk Lippold acted improperly in the USS Cole attack (the investigation was designed not to look at larger questions about rules of engagement because they would reflect badly on our allies in Yemen). In addition, one of the CIA’s first uses of a drone to kill someone–with the supposed “accidental” killing of US citizen Kamal Derwish at the same time–was in the killing of Abu Ali al-Harithi. I would imagine the government would want to make sure al-Nashiri’s attorneys are completely ignorant about certain details of both of these events. That said, the restriction may well be about making sure attorneys don’t know too much about other detainees. In any case, they seem to be using “conflict of interest” where they really want to deprive attorneys who “know too much” of serving as counsel.

The Gitmo order also eliminates a caveat included in the DC order. In the rule prohibiting attorneys from sharing certain information with their clients,

Written and oral communications with a detainee, including all incoming legal mail, shall not include information relating to any ongoing or completed military, intelligence, security, or law enforcement operations, investigations, or arrests, or the results of such activities, by any nation or agency or current political events in any country that are not directly related to counsel’s representation of that detainee; or security procedures at GTMO, including names of U.S. Government personnel and the layout of camp facilities, or the status of other detainees, not directly related to counsel’s representation. [my emphasis]

… the Gitmo order eliminates the exception in cases where this information relates to the lawyers representation of the detainee. I’m particularly interested in this given that Khalid Sheikh Mohammed named detainees whom he had implicated under torture, insisting they were innocent. Preventing any discussion of the status of other detainees would prevent such public revelations at a military commission.

The Gitmo order also includes a prohibition on sharing of information between detainees.

No materials, either Legal Mail or non-Legal Mail, are permitted to be exchanged directly between detainees unless authorized by the JTF-GTMO Commander or, after referral, the military judge. If a detainee in a military commission is authorized to proceed pro se, the military judge may authorize special procedures to facilitate the exchange of information necessary for a pro se detainee to prepare a defense. However, all written materials provided to a pro se detainee must be first reviewed by the Privilege Team under the same standards applicable to detainees represented by counsel.

Much of this order–and this restriction in particular–seems to be a response to the John Adams project, which collected photos of detainees torturers and in some case had them exchanging photos among themselves.

Finally, while the DC order ensured that the content both face-to-face and phone conversations between an attorneys and their client could not be monitored, the Gitmo order explicitly permits the recording of phone calls between lawyers and their clients.

Any telephonic access by detainee’s counsel is subject to appropriate security procedures, including contemporaneous monitoring and recording. Any telephonic access between detainee’s counsel and a detainee over either secure or non-secure systems may be subject to appropriate security procedures, including contemporaneous monitoring and recording by the Privilege Team. [my emphasis]

Mind you, as CCR’s suit about the wiretapping of attorney-client conversations shows, they’ve been doing this all along anyway. But now they’re making it explicit.

  1. MadDog says:

    First Rule of Kangaroo Courtism: “When designing a Kangaroo Court, it is mandatory that the Kangaroo Court rules must produce the results the Kangaroos want.”

  2. Gitcheegumee says:


    Source: Legal Times

    Chamber Hires Mukasey to Push FCPA Changes

    The U.S. Chamber of Commerce is building on its campaign to amend the Foreign Corrupt Practices Act, hiring former U.S. Attorney General Michael Mukasey to lobby on the issue.

    Debevoise & Plimpton, where Mukasey is a partner, filed lobbying registration papers on his behalf this month, according to Senate records. The registration is for the Chamber’s Institute for Legal Reform and is effective back to March 3. It covers possible FCPA amendments and other issues “related to criminal law and policies affecting U.S. corporations.”

    The Chamber has become increasingly critical of the FCPA in recent months. It argues that the law, which allows the U.S. government to seek charges against corporations and individuals for bribes paid to local officials in other countries, is not working well and could be making U.S. companies less competitive.


    Harold Kim, senior vice president at the Chamber’s Institute for Legal Reform, said he’s pleased with Mukasey’s hiring. “He brings a wealth of experience on these matters given his past positions as attorney general of the United States as well as chief judge of the Southern District of New York,” Kim said in an interview. “I think he’ll be a good advocate as part of our overall efforts to secure some more clarity and certainty with respect to the current statute.”Read more:

    • MadDog says:

      Speaking of Mumbles Mukasey, take a gander at this ACLU blog review of he and Mikey Hayden’s Op-Ed on the Patriot Act renewal:

      Howlers on the Patriot Act

      …They state that under the bill, some tools will be “eliminated,” but this is false: all three sunsetting provisions are reauthorized, while all others are left in place…

      …They misstate the law by stating that “the current law permitting an intelligence agency to get information through a national security letter (NSL) requires a certification that the information relates to an agent of a foreign power.” In fact, it does not, and that’s precisely what the problem is. What they describe was the law before the Patriot Act; since its passage the government needs only to certify that information is “relevant” to an investigation…

      …They write: “It bears emphasis here that such business and telephone records are information already in the hands of a third party, such as a bank or phone company, so the privacy interest of the subject is weak at best.” It would come as news to most Americans that they have only a “weak” privacy interest in their financial records, medical records, correspondence, and other information, just because they’re held in the hands of third parties…

      …They write that “The legislation imposes, for NSLs, additional after-the-fact administrative and judicial review, as well as evaluations by the Justice Department inspector general…. these functions to some extent duplicate oversight already conducted by the Privacy and Civil Liberties Oversight Board.” It’s hard to believe they would cite the PCLOB; no oversight is “already conducted” by the Privacy and Civil Liberties Oversight Board since the PCLOB does not actually exist

      Based on the ACLU’s analysis, it would seem that Mumbles and Mikey score at the bottom percentile in reading comprehension.

      • Gitcheegumee says:

        First “foreign corruption” that came to my mind was Raymond Davis.

        We really don’t know whose bidding he was doing and why…do we?

        And in reference to private citizens informations in third party hands.may I bring up fusion centers again -and all the potential abuse that entails?

  3. Jeff Kaye says:

    Much thanks for comparing the two docs (the DC court order and the new Gitmo MC guidelines). Wow! Things really have gotten worse under Obama. Or another way to look at it, the government continues to fine-tune its apparatus of oppression and injustice as it responds to new events (the John Adams controversy) or closes up loopholes left over from old travesties.

    What’s even more disturbing is that this outrage against the Constitution is sure to migrate more and more into the body politic of the society, unless… unless…

    I was surprised to look back at some articles of mine, that were on Appendix M and the Army Field Manual and asked in Jan. 2010 Will Military Torture Be Transferred to the United States? I suppose when DoD added forced nakedness to the torture/isolation of Bradley Manning we got our answer. The treatment of Jose Padilla was not an anomaly. Neither were the special administrative measures (SAMs) used against Syed Fahad Hashmi.

    We are only a very small step to the implementation of “special” terrorist courts, as some have been advocating, and with them, a parallel (in)justice system. The military commissions have three main functions: Propaganda/psych ops, via use of show trials, as in the Khadr case; Deception/Cover-up, to make sure the truth about torture and false confessions don’t become publicly known; and as a stalking horse, or experiment, for use in the terrorist courts mentioned above.

    • harpie says:

      Sorry, O/T

      Jeff, [and all] have you seen this:

      [I haven’t gone trough all the threads and comments]

      Bradley Manning’s military doctors accused over treatment; Ed Pilkingotn; The Guardian; 3/15/11

      A leading group of doctors in the US concerned with the ethical treatment of patients has questioned the role of military psychiatrists in Quantico, Virginia, where the suspected WikiLeaks source Bradley Manning is being subjected to harsh treatment that some call torture.

      The advocacy body Physicians for Human Rights (PHR) has sounded the alarm over the role of psychiatrists at the brig in the marine base where Manning has been in custody since last July. […]

      • Jeff Kaye says:

        Thanks, I hadn’t seen this. Interestingly, they don’t have anything up at their website on this, no press release, nothing.

        They mention the issue of “dual loyalty” between health professionals and institutions, something they’ve worked on a long time. It led them recently to devote a number of their personnel to the Institute on Medicine as a Profession and the Open Society Institute’s Task Force on Preserving Medical Professionalism in National Security Detention Centers.

        If you look carefully, you’ll see that besides a number of their people (a number not named by PHR affiliation) on the TF is Capt. Albert Shimkus, the former chief surgeon at Guantanamo, and the man who signed off on the mefloquine protocol there. The TF composition was previously withheld until Jason Leopold and I protested strongly to IMAP about it.

      • earlofhuntingdon says:

        Of course, Manning has been in detention longer; he’s only been at Gitmo since July.

    • Knut says:

      I think you are right about the parallel justice system. Hard to believe it would ever come home. But ‘we are at war’ (exactly with whom I don’t know, but we are), and that justifies everything.

      The only thing that can save us is total economic meltdown and military defeat in Afghanistan.

        • earlofhuntingdon says:

          If a Democratic Party, Harvard trained constitutional lawyer treats the rule of law with such disdain, the odds of a successor president treating it with more respect, let alone undoing the power aggrandizing excesses of his or her predecessor, seem poor.

    • earlofhuntingdon says:

      Domestic spying has migrated to it. Fusion centers and other kinds of federal-local sharing are bringing these same approaches to domestic circumstances. The variety of government supplied equipment, like sound detection systems in urban areas that purportedly can detect shots fired and where, are bringing such toys to the domestic scene. It’s hard to imagine that with these actions by a HLS constitutional law scholar, his constipated view of the rule of law and civil liberties won’t also migrate to domestic US courts.

  4. cwnidog says:

    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.

    As much as I might like it to come out otherwise, given that everything a detainee says is classified so therefore any document that contains a detainee’s statement is classified as well, I can only parse this to mean that a detainee’s lawyer cannot tell a detainee what that detainee said.

    I think we’ve pierced absurd and broken out into just plain asinine.

  5. earlofhuntingdon says:

    You’re right, the government’s definition of “conflict” is Orwellian. A true conflict would exist, for example, if a lawyer had earlier represented the government in a matter, and now seeks to represent someone else in litigation against the government.

    Here, the government seems to think it a conflict if a defense attorney has represented other detainees or the “wrong” other detainees in prior actions against the government. Orwellian. How competent would civilian defense attorneys be if a prosecutor could get them tossed off a case for having earlier fought a case against that prosecutor or his governmental client? The prosecutor would face no one but newbies.

    Strategically, it is similar to the GOP destroying Democratically leaning institutions like unions and the middle class: it deprives the opposing party of money, supporters, votes and helpful media. Likewise, it affects the body of lawyers who do or might represent detainees by making it less attractive for them to do so.

    Tactically, it could be used to prevent individual experienced lawyers from representing detainees, because they’d only get one shot at opposing the government. As is true of surgeons, the more hard cases you work on, the better you get, the more you know about holes in the government’s case, its staff, its procedural rules, the politics driving seemingly arbitrary and inconsistent decisions.

    If this new vetting hurdle is used in that way, it’s another example of Obama institutionalizing Bush’s tilting of the playing field toward the “the government must always win” angle. As with torture, all these steps are cumulative.

  6. PeasantParty says:

    Insanity! How are these people to have any attempt at a fair trial? If any politician utters the word Democracy again, they are done for in the re-elect campaign!

    Might as well have some Salem Witch trials for them as well.

  7. fatster says:

    Pakistan releases CIA contractor after ‘blood money’ paid
    Case strained relations between U.S. and Pakistan


    • DWBartoo says:

      “Blod money”, fatster, describes American “policy”, foreign and domestic, to a “tee”.

      And it is ALL done in the name of democracy and the American people.

      Americans have no idea, at all, in the slightest, what their likely future is to be …

      Perhaps that is well, for America’s future is grim and filled with unimaginable pain, loss, defeat, and destruction for its people.


  8. harpie says:

    Pfc. Bradley Manning doesn’t deserve humiliating treatment; Editorial, Washington Post; 3/15/11

    IF THE ALLEGATIONS are true, Pfc. Bradley Manning facilitated a damaging breach of national security by funneling thousands of classified documents to the rogue Web site WikiLeaks. But even if so, Mr. Manning does not appear to deserve the treatment he has been receiving at the military brig in Quantico, Va. […]

    [The first comment is a gem. /s]

    ‘You can hear Bradley Manning coming because of the chains’; David Leigh; The Guardian; 3/16/11

    US soldier Bradley Manning is being held in inhuman conditions in military prison, accused of passing secrets to WikiLeaks. Every other week his friend from Boston goes to visit him. David Leigh reports. […]
    Manning’s family say that the young soldier should never have been posted to Iraq, and was already showing signs of depression before being sent there. This kind of hackerdom, to which he was introduced while on leave, via a Boston boyfriend, might perhaps have seemed an environment that could save him. The 22-year-old junior soldier had recently come out as gay, and had a disrupted childhood and a troubled relationship with his father, a former US serviceman who had met and later divorced Manning’s mother in Wales. Manning was an unlikely soldier, who recounted that his custom dog tags gave his religion as “humanist”, and had strong political opinions.

      • DWBartoo says:

        I find the participation of psychologists and psychiarists in the torture of Bradley Manning to be inhumane, unprofessional, crimminal, and inexcusable, harpie.

        While not considered by these “healers”, these “doctors”, to be a threat to himself or others – which point these practitioners do NOT insist upon, being ” deferential” to and “respectful” of “authority” – a naked, abused, and humiliated Manning is prescribed anti-depressants.

        Perhaps the wrong person is getting the “necessary” medicine?

        A strong dose of truth and courage … possibly?

        Many … owe their nation AND their society, at least that much …


        • Jeff Kaye says:

          While I totally agree with your comment regarding the unethical and criminal participation of doctors and other health care personnel in Manning’s torture, even if they are recommending him not to be tortured, their refusal to act beyond that in his interest is outrageous, or to work with such a torturing authority.

          However, as regards the anti-depressants, it’s my understanding that PFC Manning requested them and takes them voluntarily. Of course, how much do the conditions exacerbate any previous condition, or create a new condition, we cannot know, thereby producing the ongoing need for anti-depressants, which mainly produce a kind of numbing response. (Some anti-depressants are really stimulants in disguise, and those, of course, are not numbing.)

          • DWBartoo says:

            My problem with the current circumstance, Jeff, is that we can by no means be certain or even half-certain that the “doctors” who prescribe such medications actually have Bradley Manning’s best interests at heart, they do not work for Bradley Manning, nor even, apparently, for the public which pays their salaries, instead, these doctors, all of them, “work” for AUTHORITY, for a force which asserts that it has ALL power and ALL truth … this is the primary moral conflict of “interest” … doing potential harm (even as you suggest, with “anti-depressants” that stimulate or even those which numb justified fear or even outrage at how one is being treated by one’s fellow human beings … is NOT a dilemma which honest and ethical practitioners can simply walk away from, ignore, or numb themselves sufficiently to avoid considering) while anticipating a “greater good”, especially if such practitioner’s careers depend upon their comporting themselves in morally compromised fashion.

            Before such practitioners can behave with such fundamental disrespect of other’s human integrity, at the level we are discussing, such practitioners have had to lay waste their own self-respect, sanity, and humanity.

            Now, that is merely my opinion, yet I am rather certain that most thoughtful observers, now, and throughout human “history”, cannot help but agree that this dilemma is not Bradley Manning’s but that of our society itself … and specifically, at this moment, of those “professionals” who, apparently, confuse political loyalty with professional integrity.