EXCLUSIVE: Guantanamo in New Attorney-Client Mail Controversy in Aftermath of Raid

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Guantanamo officials don’t know who are the rightful owners of thousands of pages of legal documents and other materials seized from prisoners during a raid at the communal camp in April, according to a government document I obtained.

A Justice Department attorney said in a draft seven-page court filing dated July 2 that Joint Task Force-Guantanamo (JTF-GTMO) is “currently in possession of one hundred five (105) bins and three (3) bags of documents and materials for which ownership cannot be determined without further review.”

The Justice Department plan, outlined in a draft legal filing, proposes tasking a Defense Department “privilege review team,” a panel made up of Defense Department attorneys, intelligence officials, interpreters and translators, with scrutinizing the materials—some of which may be confidential—to figure out whom it belongs to.

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“JTF-GTMO recognizes that some of the materials may be legal materials or attorney-client communications…” says the draft filing, which is expected to be filed by the government in all Guantanamo habeas corpus cases. “Out of an abundance of caution that the documents collected may include legal materials or attorney-client communications, and to respect the potential sensitivity of the recovered materials, the Department of Defense will have the Department of Defense Habeas Privilege Team inspect and review the materials currently in storage in an attempt to determine the proper owners of the recovered materials.”

If the government can’t identify the prisoners legal documents belong to, the privilege review team will look through the protected attorney-client materials and try to find the names of attorneys. If that fails, “the Privilege Team, without disclosing potentially confidential or privileged information, will consult with the Department of Defense Office of General Counsel and the Department of Justice before taking further action.“

“These entities will work with the Privilege Team to identify workable solutions to get as many items as possible to their proper owner,” the Justice Department draft plan says.

Improper access to Guantanamo prisoners’ privileged attorney-client communications and legal mail has been an ongoing problem at the prison and in ongoing military commissions proceedings. This latest development comes two weeks after United States Southern Command (SOUTHCOM), which has oversight of the joint task force that operates Guantanamo, released a report to me under a Freedom of Information Act request that found widespread problems pertaining to the overall operation of the prison and significant leadership failures that contributed to the death of a Yemeni prisoner last September.

The Justice Department asked habeas attorneys to weigh in on the proposals laid out in its draft legal filing. The attorneys are expected to file a formal response to the government’s proposal in federal court. Attorneys representing some prisoners did not respond to requests for comment.

The materials were seized in the aftermath of a pre-dawn raid at the communal Camp 6, where more than 100 prisoners who had been on a hunger strike for two months were placed into solitary confinement.

“This action was taken in response to efforts by detainees to limit the guard force’s ability to observe the detainees, including by covering surveillance cameras, windows, sally port fences, and glass partitions,” the draft filing, written by Acting Assistant Attorney General Stuart Delery, who represents the government in Guantanamo habeas litigation cases, and other officials. “In order to reestablish proper observation of the detainees, the guards entered the Camp 6 communal living spaces and recreation yards to transition detainees into single cells; to remove obstructions to cameras, windows, and partitions; and to allow medical personnel to conduct individual assessments of each detainee due to an ongoing hunger strike.”

According to the draft filing, when prisoners were moved into solitary confinement guards seized all of the documents and materials from their cells and the Camp 6 communal areas.

“Prior to the transition operation, detainees residing in Camp 6 were authorized to congregate in designated communal areas and further permitted to bring authorized documents and materials with them to these areas,” the filing states. “Many of the detainees routinely left materials in the communal areas, and consequently, those materials were still in the communal areas at the time of the transition operation. Materials belonging to a number of different detainees were collected and compiled from the same communal area and placed into bags or bins for storage pending sorting and review. JTF-GTMO personnel conducted a search for physical contraband while gathering the materials from the communal areas, but did not read or review the materials.”

Moreover, “JTF-GTMO guards also collected all materials from inside individual detainees’ assigned cells for temporary storage while the cells were appropriately secured and cleaned.”

“During the collection of these materials, guards removed any unauthorized physical contraband that was discovered,” according to the draft filing. “In addition, if, while collecting the materials and searching for unauthorized physical contraband, the guards discovered items that were clearly marked with the Internment Serial Number (ISN) of a detainee other than the detainee assigned to the cell being searched, the material was not returned to any particular detainee and, instead, placed with the communal materials. With the exception of the two categories of materials noted above—physical contraband and materials belonging to other detainees—JTF GTMO has returned, or attempted to return, to detainees the materials removed from their cells.”

A footnote added, “Five detainees initially refused to accept their materials back. The nine bins of materials belonging to these detainees are also among the communal materials.”

Still, numerous prisoners had complained to their attorneys after the raid that their legal mail and other materials were never returned. That prompted several attorneys to reach out to Department of Justice officials to inquire about the matter. Justice Department officials then looked into and prepared the proposed order in an attempt to resolve the issue.

The filing states that some materials belonging to the prisoners currently held by JTF-GTMO were also seized during a “separate security operation in February 2013.” That’s the month when the mass hunger strike, now in its fifth month, started. Prisoners said they launched their protest after translators and linguists searched their Korans for “contraband.”

Navy Capt. Robert Durand, a Guantanamo spokesman, told me Thursday afternoon, “first I’ve heard this.” Durand said he would look into the issue.

On Friday, Army Lt. Col. Todd Breasseale told me, "During the April 2013 transition, guards collected material from inside individual detainees' cells as well as from the communal areas within Camp 6. Some documents have been returned to detainees but there remain documents collected from both common areas and from cells whose ownership cannot be determined without further review."

"The documents whose ownership cannot be determined have been secured since the time of the April 2013 transition," Breasseale added. "The Department of Defense is in the process of developing procedures, respectful of potential privilege issues, through which ownership of the remaining documents can be ascertained, where practicable. The US Department of Justice has notified counsel for the detainees and is consulting with them on the matter." 

A Justice Department spokesperson did not return calls or emails for comment.

Attached document: Camp 6 Documents - Notice to Court - Draft (July 2, 2013)[1].pdf

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