GITMO Defense Counsel Protest Attorney-Client Privilege Invasion by DoD [UPDATED]
Here (and here) is a WaPo story about a letter from uniformed defense counsel for Gitmo detainees protesting the apparent invasion of their attorney-client privilege by DoD when DoDo offiicals ordered review of all “legal mail” between detainees and their counsel. I wonder at what level attorneys covered by JAGINST 5803.1C were involved in the decision to review A-C privileged these communications and the Professional Responsibility implications of this policy?
UPDATE: Here is a copy of the letter to DASD Lietzau.
Does the “defense” of “following orders” apply to the Art. 134 offense “opening” the mail of another? MCM, IV-131.
There’s a significant lack of cerebration here if they are serious about seeking the death penalty – why intentionally create obvious issues?
There are no professional responsibility implications of this policy. The JAG makes the rules and interprets them. And he adjudicates any contested issues. He appoints the IO to investigate and that officer’s future is tied to the JAG’s good graces. Has there ever been a more perverted set of rules? I think not. The Navy (and all services PR rules) are a joke.
Charlie,
Hear, hear! More often than not, the PR complaints are just the JAG Corps way of keeping kangaroo court with no external oversight. I would be more interested to see what the ABA and the individual attorneys’ state bars had to say about this, since after all, it is the state licensing authorities that really matter.
Just: When you call the PR system a kangaroo court, you insult all of the good kangaroos in the world.
Charlie, the basic premise, i.e., that the TJAG’s have “rule-making” authority is what is totally bogus. In the various enabling statutes creating the position of TJAG’s, Congress never gave them that authority, they’ve simply usurped it. Their only authority is statutory – limited by Art. 27(b), to either certify or decertify someone as a judge advocate.
But, I suspect that this new policy is from a civilian, not a JAG.
http://www.mc.mil/CASES/MilitaryCommissions.aspx
A few observations: The (heavily redacted) motion is posted, and notes that the matter was discussed with trial counsel and that trial counsel opposes. At least one of the TCs is bound by JAGINST 5803.1C. Also, the change in policy seems to have been made days after the detailing of TC. either a. the TCs were involved in the decision (cringe). or b. they are unwilling to do the ethically right thing and not oppose the motion. Defense isn’t asking for the moon here, just to have confidential communications with their client.
and now the motion is gone completely.
most transpatent government my eye.
Government’s motions are up. one of the exhibits is a letter from a JAG CDR, the JTF GTMO SJA who oversaw the reviews.
I am still baffled by the absence of anyone swearing out charges for the illegal opening of the mail that is clearly privileged! The military TC and SJA are subject to the UCMJ and just because they’re at GTMO, doesn’t give them any immunity. Any lawyer who argues that they somehow have the authority to read privileged attorney-client communications and use what they learned from such to their advantage, should be disbarred.
well, in fairness, the TC claims she didn’t read the mail…just the GTMO detention staff…but I doubt that’s true. The timing is suspect, as is the cast of characters involved.