Terrorism Trials & Investigations

Another Order in the 9/11 Case, This One On Legal Mail

By Wells Bennett
Wednesday, November 6, 2013, 5:04 PM

Again, we learn of a key commissions ruling in the 9/11 case, without having the ruling itself.  And again, we learn of it from 9/11 defense lawyer James Connell III.  Here is  his second statement (which contains remarks from his co-counsel, Lt Col Sterling Thomas) of the afternoon:

GUANTANAMO BAY, CUBA Today, the military commission issued an order governing legal mail in the 9/11 case, more than two years after the controversy first arose.  The order transfers control of the "privilege team" which reviews legal mail from JTF-GTMO to the military commission.  For the first time, the new order permits defense attorneys to discuss any topic with their clients as long as it is related to the case.

"For more than two years, I have not been able to communicate confidentially by letter, telephone, or email with my clients at Guantanamo," said Lt Col Sterling Thomas, USAF, attorney for Ammar al Baluchi and Abdul Zahir.  "This new order opens to the door to a more meaningful attorney-client relationship."

In October 2011, prison authorities seized all "high-value detainee" legal mail in a process known as the "baseline review."  After a series of exchanges over legal mail policy, Marine Colonel Jeffrey Colwell, then-Chief Defense Counsel, issued an order prohibiting military commissions defense attorneys from using the Guantanamo legal mail system for privilege communications.  Both prosecution and defense filed motions about the issue in May 2012, which have been pending since that time.

"The issue of privileged legal communications has dogged the military commissions," said James Connell, a civilian attorney for Mr. al Baluchi.  JTF-GTMO has claimed the right to review written legal communications since the October 2011 baseline review, and earlier this year, defense attorneys discovered surveillance devices disguised as smoke detectors in the legal visiting spaces.  The military commission ordered changes in the courtroom audio system after an intelligence agency interrupted a hearing by activating a courtroom security device.  Prison authorities prohibit all telephone communication between the 9/11 defendants and their attorneys, although defense attorneys have filed a motion challenging the telephone ban.

The new policy implicates the ongoing defense "defective referral" challenge to the charges, which first arose at the arraignment in May 2012.  Because they could not confidentially communicate with their clients when not at Guantanamo Bay, defense attorneys argue that they did not have a full attorney-client relationship during the process which led to the charges.  The new ruling implicitly suggests that the prior legal mail regime interfered with the attorney-client relationship, and needed to be changed.

More to come; stay tuned.