Spying on Attorneys at GTMO: Guantanamo Bay Military Commissions and the Destruction of the Attorney-Client Relationship

In January 2013, the Military Commission hearings at Guantanamo Bay discovered that an “external body” was not only monitoring the proceedings surreptitiously but also had the ability censor the proceedings, superseding the presiding judge’s supposed sole authority to do so. The external body censored Khalid Sheikh Mohammed’s Learned Counsel, David Nevin, while he recited the title of a motion that contained mostly unclassified information pertaining to CIA dark site prisons. Immediately after the hearing’s audio feed was reinstated, the Military Commission’s presiding judge, Army Colonel James Pohl, announced: [I]f some external body is turning the commission off under their own view of what things ought to be, with no reasonable explanation because [there] is no classification on it, then we are going to have a little meeting about who turns that light on or off. Within one week, Judge Pohl seemed to have accepted having an external body eavesdropping on the Military Commission hearings and censoring information from the public with no explanation. Soon after the United States Government’s display of courtroom eavesdropping capabilities, defense counsel for Guantanamo Bay detainees learned that the meeting rooms assigned to them for private conversations with their clients had been bugged with convincingly disguised microphones for clandestine audio recording. In addition to the secret microphones, finally detected in each attorney-client meeting room, those rooms also host at least two video cameras, comparatively more recognizable as such. It was confirmed that there was one infrared camera mounted on the wall opposite “from where the detainee would be locked in when there was not a meeting,” and another encased point-tilt-zoom camera mounted in a corner. At least one of the cameras is so sensitive that “from the distance they are in the cell, most definitely” they are capable of zooming to read “very tiny writing” on a document used during an attorney-client discussion. Installing, maintaining, and using cameras with such powerful lenses far exceeds any needs for their ostensible security purposes. In general, any communication intended to be confidential between a client and his attorney is protected by the attorney-client privilege. This privilege is recognized both in the Federal Rules of Evidence and The Model Rules of Professional Conduct. It is true that the attorney-client privilege is not absolute – it is subject to the crime-fraud exception whereby attorney-client communications that are made with the intent of carrying out a crime or fraud actually committed by the client are not protected. However, crime-fraud grounds for breaching attorney-client privacy must be justified. “Eavesdroppers present special problems for the privilege.” Generally, the privilege still applies “as long as the setting of the conversation suggests that the speakers intended the conversation to be confidential.” Violation of this sacred trust eviscerates fundamental constitutional, codal, MCM, regulatory, ethical, and common law principles and brings our profession into disrepute. In Article III courts, the prosecution’s invasion into attorney-client privacy is a violation of the defendant’s Sixth Amendment right to effective assistance of counsel. In total, we found more than 40 examples of staff videotaping detainees’ attorney visits. On many videotapes, we were able to hear significant portions of what the detainees were telling their attorneys and sometimes what the attorneys were saying as well. It appeared that detainees’ attorney visits were recorded intentionally. In sum, we concluded that audio taping attorney visits violated the law and interfered with the detainees’ effective access to legal counsel. Beyond surveying what the Military Commission at Guantanamo Bay has established in the al-Nashiri and KSM, et al. hearings’ records regarding the United States Government’s eavesdropping equipment discovery, this paper reveals the following: Despite the denials of Guantanamo Bay command staff, Camp Echo has possessed audio- recording equipment throughout the past decade, and it has been used as recently as 2012, if not more recently. Guantanamo Bay command staff’s denials to the contrary are either alarmingly misinformed or made in order to conceal the truth. The only rooms on the entire Guantanamo Bay Naval Base where defense attorneys are permitted to hold private meetings with their high-value-detainee clients are the same rooms formerly used by intelligence agencies for the purpose of recording interrogations of the same group of detainees. Monitoring equipment in those rooms has been repaired and upgraded repeatedly during the past decade – even as recently as a month before it was discovered. The United States Government has consistently adhered to its long-standing policy of recording high-value detainees’ activities, especially those activities in Camp Echo. Although the Government historically denies recording high-value-detainees, those denials are proven false. Although the Government claims that the listening devices have been disabled, the ability to revive them remains “available.” Even if the listening devices remain dormant, their installment and concealment by the Government in the meeting rooms assigned to attorneys and their detainee-clients have irreparably undermined the defense counsels’ ability to establish trust and to deliver effective assistance.