Rule of Law

From Holden:

The Bush Assministration continues to violate the basic rights of GITMO detainees.

On Thursday July 6, eight days after winning an important victory in the Supreme Court, Salim Hamdan met with his lawyers in Guantanamo to discuss legal strategy. After polishing off his favorite meal of Jamaican jerk chicken, Hamdan took hand-written, Arabic notes on a page of yellow legal paper, as his lawyers outlined a series of strategic questions. After the meeting, Hamdan’s notes were confiscated, according to a sworn affidavit given by Hamdan and obtained by TIME.

In the previous weeks, the government had carted away over half a ton of similar materials from the cells of other prisoners — much of which, like Hamdan’s notes, ARE protected by attorney-client privilege. “In these notes the government knows all of my future legal strategy,” Hamdan writes in his affidavit. The government has said it seized the material as part of its investigation into the suicides of detainees at Guantanamo.

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From Holden:

This week in federal court in Washington, D.C., lawyers for Guantanamo detainees asked a federal judge to order the return of materials covered by the attorney client privilege and hold the government in contempt for having taken possession of them in the first place. Hamdan is not part of this filing. But given the Bush Administration’s recent loss in the Hamdan case, this latest legal salvo represents another potentially embarrassing challenge to the Justice Department’s strategy for Guantanamo.


The documents were seized as part of an investigation into the June 10 suicides of three detainees, according to papers filed by the government in federal court. But David Reems, author of one of the detainee’s filings, says that the rules set up to guide the attorney-client relationship at Guantanamo require that the government notify the court before any such seizures occur. No such notification was given until almost a month after the papers were taken. The government alleges that prisoners had planned the suicides in secret, using confidential lawyer-client papers to pass handwritten notes.

But lawyers for some of the Guantanamo prisoners are now challenging the government’s version of events. In one filing, for example, lawyers for detainee Mahmoud Abdah said: “Our client reported that he and many other detainees had their written materials seized more than ten days before the deaths of the three [suicides]” — nearly six weeks before Guantanamo authorities claimed that prisoner materials were impounded. If this claim were proven in court, it could undermine the government’s contention that attorney-client materials were seized in the course of an investigation into the three prisoners deaths, and not before.


Rather than blaming only military authorities at Guantanamo for the seizure, the filing takes aim at the Justice Department as well, arguing that DOJ’s, “failure to disclose the seizure . . . suggests that the Department was a full partner [in] the massive break of the attorney-client privilege.” Though it is uncertain how a federal court might rule on such motions, in the past judges have upheld the right of Guantanamo prisoners to meet with lawyers, and have taken steps to design the procedures under which that should happen, including preservation of the attorney-client privilege.

Hamdan’s lawyers opted not to join the other detainees’ filings on the seizure of handwritten notes while they see how the dust settles in the wake of the Supreme Court ruling. But, says Hamdan attorney Lt. Cmdr. Charles Swift Swift, Hamdan’s seized notes had nothing to do with the suicides and were not even written until weeks later and could be of use to government lawyers who would be arguing against Hamdan in a future legal action. Taking these notes, says Swift, is a clear “interference in the attorney client relationship.”