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Iguanas and the Rule of Law at Guantánamo

It appears iguanas have more rights than detainees at Guantanamo Bay. I traveled to the prison recently to observe the hearing of accused U.S.S. Cole bomber Abd al-Rahim al-Nashiri.

February 4, 2012

Cross­pos­ted at Balkiniz­a­tion.

Two weeks ago, I made my first trip to Guantanamo Bay, Cuba. I went as a repres­ent­at­ive of one of several non-govern­mental organ­iz­a­tions invited to observe the milit­ary commis­sions that the govern­ment has estab­lished to try terror­ist suspects it does not wish to try in federal court.

A few days before the trip, the Office of Milit­ary Commis­sions e-mailed me a twelve-page Power Point present­a­tion of inform­a­tion for trav­el­ers. It appeared to have been writ­ten primar­ily for milit­ary person­nel and was sprinkled with inde­cipher­able jargon and acronyms, but as I anxiously skimmed the bullet points for my march­ing orders, my eyes fell upon this clear direct­ive:

“It is illegal to harm, kill or eat an iguana.”

At last! The rule of law has come to Guantanamo!

There were no caveats, no exemp­tions, no loop­holes, no equi­voc­a­tions. To my know­ledge, the Office of Legal Coun­sel has issued no opin­ion conclud­ing that the stat­ute prohib­it­ing the harm­ing of iguanas does not constrain the Pres­id­ent when acting as Commander-in-Chief — as it did when constru­ing the equally clear language of the stat­ute prohib­it­ing torture. Nor has that office, to my know­ledge, shown the same creativ­ity in defin­ing “harm” that it showed in defin­ing “torture,” when it opined that a person hasn’t been tortured unless he exper­i­ences the kind of pain asso­ci­ated with “organ fail­ure or death.” The govern­ment has not argued that Congress surely did not intend the law to extend to Guantanamo Bay — as it did when detain­ees sought to avail them­selves of the stat­utory right to habeas corpus.

As others have observed, the impress­ive 20-pound lizards who roam the island are exper­i­en­cing a very differ­ent Guantanamo than the nearly 800 detain­ees who have been imprisoned there since 9/11. For those detain­ees, the story of Guantanamo can be boiled down to a series of efforts on the part of the govern­ment to avoid the clear applic­a­tion of the law. As the Supreme Court has repeatedly rejec­ted these efforts — hold­ing that the Pres­id­ent cannot create ad hoc milit­ary commis­sions without congres­sional author­iz­a­tion, that due process requires giving U.S. citizens a mean­ing­ful oppor­tun­ity to contest their status as “enemy combatants,” that detain­ees have a consti­tu­tional right to chal­lenge the basis for their deten­tion — the govern­ment’s efforts to avoid the law have become more limited, less brazen. But they have not stopped.

The govern­ment’s propensity to get creat­ive with the law was on full display in the pre-trial hear­ing in the case of Abd al-Rahim al-Nashiri. Al-Nashiri, a Saudi citizen, is charged with plan­ning the 2000 bomb­ing of the U.S.S. Cole, which killed 17 sail­ors. Arres­ted in 2002, al-Nashiri spent the next four years in secret CIA pris­ons, where (accord­ing to a CIA Inspector General report) he was water­boarded, threatened with a loaded gun, and inter­rog­ated with a revving power drill next to his head. Al-Nashiri, who faces the death penalty, will likely be the first “high-value detainee” to go to trial — although that may not be until 2015.

The main issue before the Commis­sion at the hear­ing was attor­ney-client priv­ilege. A defend­ant in regu­lar crim­inal proceed­ings has a consti­tu­tional right to confid­en­ti­al­ity in his commu­nic­a­tions with his attor­ney. The rights to effect­ive assist­ance of coun­sel and due process, as well as the right not to incrim­in­ate oneself, would be mean­ing­less if the govern­ment could eaves­drop on these attor­ney-client exchanges.

The govern­ment says that the Consti­tu­tion ends at the tip of Flor­ida; it relies instead on the Milit­ary Commis­sion Rules of Evid­ence. But even those rules recog­nize attor­ney-client priv­ilege. “[A] client has a priv­ilege to refuse to disclose and to prevent any other person from disclos­ing confid­en­tial commu­nic­a­tions made for the purpose of facil­it­at­ing the rendi­tion of profes­sional legal services to the client . . . between the client or the client’s repres­ent­at­ive and the lawyer or the lawyer’s repres­ent­at­ive.” Clear enough. Commu­nic­a­tions between the detain­ees and their attor­neys are like iguanas: protec­ted.  

Except when the govern­ment says they’re not. In Decem­ber, Rear Admiral David Woods, the commander in charge of the deten­tion facil­it­ies at Guantanamo, issued a policy allow­ing a team of contract­ors hired by the Defense Depart­ment — a so-called “priv­ilege team,” consist­ing of intel­li­gence profes­sion­als and trans­lat­ors — to inspect the incom­ing legal mail of detain­ees involved in milit­ary commis­sions proceed­ings. At the hear­ing, al-Nashir­i’s lawyers asked the judge to bar imple­ment­a­tion of the policy in his case.

The govern­ment’s attor­neys assured the milit­ary judge that there was noth­ing to worry about, because the contract­ors were not actu­ally “read­ing” the mail; they were just look­ing to see whether any “inform­a­tional contra­band” — defined as anything that the GTMO commander deemed “imper­miss­ible or inap­pro­pri­ate” — was in “plain view.” In two days of argu­ment, however, they were able to cite only two types of inform­a­tion that that priv­ilege team might uncover without actu­ally read­ing a docu­ment: clas­si­fied mark­ings (which are not neces­sar­ily “contra­band,” as al-Nashiri is entitled to receive some clas­si­fied inform­a­tion about his case) and diagrams of the deten­tion facil­it­ies (an example that promp­ted visible skep­ti­cism on the part of the judge, presum­ably because of the implaus­ible implic­a­tion that defense coun­sel might be conspir­ing with al-Nashiri to stage a jail­break). The other examples of “inform­a­tional contra­band” listed in the policy — things like “current polit­ical or milit­ary events in any coun­try” — could never be detec­ted without the act of read­ing because they would be embed­ded in the text of the docu­ment. (If you’re asking your­self why al-Nashiri — who has been in captiv­ity for a decade — can’t receive polit­ical news about “any coun­try,” you’re not alone.)

Rather than spec­u­late about whether the priv­ilege team might be read­ing the mail, one of al-Nashir­i’s lawyers, Lieu­ten­ant Commander Stephen Reyes, asked to have a member of the priv­ilege team testify about what the team actu­ally was doing. Commander Andrea Lock­hart, one of the prosec­utors, countered that the current prac­tice of the priv­ilege team was irrel­ev­ant: the judge in al-Nashir­i’s case could place any restric­tions on the team that he wished and would have complete control over its actions. 

The next day, Lock­hart confessed error. She admit­ted that the team was bound only by the terms of its contract, and neither the prosec­utors nor Admiral Woods — who issued the priv­ilege team policy in the first place — knew what that contract said. But Lock­hart nonethe­less assured the judge that he could enter an order specify­ing what he would like the contract­ors to do, and if they didn’t do it, surely whoever was super­vising their contract would take some sort of employ­ment action. Perhaps not surpris­ingly, the notion of an optional judi­cial order did not give her pause.

The govern­ment also repeatedly claimed that Admiral Woods’ policy, which applies to detain­ees in milit­ary commis­sions proceed­ings, is no differ­ent than the proced­ure that has been in place for years for another group of detain­ees — those who have filed habeas peti­tions in federal court. But when the judge reques­ted a copy of the court order govern­ing the priv­ilege team in habeas cases, he discovered that the order permits the team to inspect incom­ing legal mail only for phys­ical contra­band: weapons, files, or the like. Instead of apolo­giz­ing profusely for having misled the judge, Commander Lock­hart main­tained that, in fact, the order permit­ting inspec­tion only for phys­ical contra­band had the exact same mean­ing as Woods’ policy, which permits inspec­tion for both phys­ical and inform­a­tional contra­band.  There was no sign of cognit­ive disson­ance in her present­a­tion. This rule, like so many others, simply didn’t mean what it said.

Judge Pohl was no pushover. When Admiral Woods was late to give his testi­mony, Pohl scol­ded the prosec­utors and admon­ished them to have their witnesses ready on time: “I really don’t care what their rank is.” He clearly will not enter­tain any sugges­tion that the officers who run the prison also run his courtroom. But by the same token, he appeared reluct­ant to insert himself in matters relat­ing to the secur­ity of the deten­tion facil­ity — the purpor­ted reason for the priv­ilege team review. Although he reserved judg­ment, he signaled that he is at least consid­er­ing allow­ing some kind of “plain view” review.  Which would simply confirm once again that at Guantanamo, no matter how clearly a rule may be stated, you can never be truly sure what it means or whether it will be followed.

Unless, of course, you’re an iguana.