Detention: Law of

Overview of Restrictions on Counsel in the Tsarnaev and 9/11 Cases

By Wells Bennett, Zachary Eddington
Monday, December 2, 2013, 3:00 PM

From the defense's standpoint, which are more onerous: restrictions on lawyers in civilian terrorism cases or restrictions used in military commissions?

Accused Boston Marathon bomber Dzhokhar Tsarnaev is currently challenging Special Administrative Measures (SAMs) imposed on him and his attorneys; Judge George O'Toole of the United States District Court for the District of Massachusetts heard argument on Tsarnaev's bid to vacate the measures last month but has yet decide the matter. In the meantime, the SAMs remain in place and add a second layer of rigorous security requirements, above and beyond those ordinarily laid down by federal prison regulations. There's also a body of counsel rules in play down at Guantanamo. Also last month, Army COL James L. Pohl, the military judge presiding over the 9/11 case, entered a Privileged Written Communications Order in that case. Together with other Guantanamo rulings and policies, this sets up protocols which defense lawyers must observe in working with their clients.

So how do the two regimes compare? In some ways, the SAM-imposed restrictions resemble their counterparts in the 9/11 case. Both, for example, prohibit defense attorneys from providing certain materials to clients---though both nevertheless permit, albeit through different mechanisms, the passing on of items necessary to the defense of the accused.

Yet in other, important respects, the civilian and military setups differ---with the latter sometimes imposing tighter strictures. The government may engage in limited screening of attorney-client communications in both the civilian and military cases, but the review at the military commissions, by a so-called Privilege Team, is more elaborate. This makes for, among other things, a greater logistical burden on counsel than in the civilian setting: the military commission procedure requires defense lawyers to mark documents according to complex scheme before submitting them to the Privilege Team for review; contrast this with the federal approach, which involves cursory document inspection but sets forth no separate rules for marking documents.

Additionally, counsel in the Tsarnaev case may disclose the contents of Tsarnaev's communications to third parties only for the purpose of preparing his defense (though only with court permission, so far as narrow classes of materials are concerned). Not so in the 9/11 case, where defense attorneys have pledged not to reveal classified information, and the judge has instructed the parties to handle certain of the defendants' statements---those regarding their rendition, detention, and interrogation by the CIA---as if they were classified. Finally, both civilian and military rules limit the role of defense paralegals and other staff, though the military commission orders seemingly impose greater constraints, in that those orders prohibit all non-lawyer personal from meeting with a client unless an attorney is present.

Of course it is one thing to compare legal texts in the abstract; it is quite another to compare them as applied. Guantanamo presents circumstances that no other prison really does, and the facts on the ground ultimately will determine which regime will prove tougher. The SAMs can be applied narrowly or broadly by prison personnel, assuming they survive Tsarnaev's constitutional challenge. It is also true that the Communications Order likewise imposes some new, more liberal-seeming rules for written documents---and thus partially replaces older rules that, at one time, prompted defense counsel to forgo use of the Guantanamo legal mail channel. The order's entry thus suggests an advance, at least gauging by this positively-flavored appraisal from one 9/11 defense attorney. But only time will tell, as both cases progress.

Below the fold, we broadly (read: not comprehensively) overview some of the two regimes' most important features, so far as they concern defense counsels' activities. 

1. Background 

The Attorney General originated the SAMs in August based on 28 C.F.R. § 501.3, which authorizes him to direct the Federal Bureau of Prisons “to implement special administrative measures that are reasonably necessary to protect persons against the risk of death or serious bodily injury.” The measures supplement standard Bureau of Prisons procedures; that is, the SAMs control only when they are more restrictive than the Bureau's regime. More information about the SAMs is available in the Attorney General's letter establishing them; more information about standard Bureau of Prisons procedures for Federal Medical Center-Devens, where Tsarnaev is being held, is available here. These procedures work in tandem with a Protective Order entered in Tsarnaev's case by agreement of the parties. It precludes the dissemination of "sensitive" information---including unclassified national security information---outside the defense team without prior authorization from the judge and notice to the United States.

Assurance of security also figures in several orders authorizing restrictions on counsel in the 9/11 case. On November 6, the military judge issued two: in the first, the court essentially rebuffed a defense challenge to the so-called Privilege Review Team process---whereby Defense Department attorneys, intelligence personnel, and others not aligned with the prosecution screen items passed to detainees for contraband----finding that such a setup "is a reasonable means of balancing the interests of the attorney-client privilege against the security of the detention facility, the safety of the guards, other employees, and detainees, and the general allocation of prison resources." This paved the way for order number two, a Privileged Written Communications Order governing documents exchanged between defense attorneys and detainees. It replaces a series of highly contested GTMO policies, including a quite controversial Logistics Order, issued by the commander of Joint Task Force-Guantanamo in December 2011. Though partially superseded by the Communications Order, the Logistics Order's rules for client meetings remain in effect. Last but not least is the 9/11 case's Protective Order regarding national security information, which Judge Pohl issued in December 2012. That ruling insists that lawyers treat some information about the case as classified---including certain observations of the accused regarding their treatment at CIA hands---thereby prohibiting defense attorneys from disclosing it to uncleared personnel without the requisite need-to-know.

2. Prohibition of Contraband

A central issue is what, exactly, defense lawyers can and cannot bring to meetings with their clients or send to them in the mail.

The SAMs do not explicitly define any category of materials as "contraband," physical or otherwise. But they prohibit defense attorneys from giving Tsarnaev "inflammatory materials, materials inciting violence, military training materials, or materials that may be used to pass messages from inmate to inmate"---that is, at least unless the government preapproves the item in question. Apart from this, the general rule is that Tsarnaev's lawyers can give to him, or review with him, documents related to his defense---including court papers, attorney-written papers, and discovery materials.

As it happens, the U.S. Attorney's Office, in response to a request from Tsarnaev's defense team, has pre-approved all discovery---that is, seemingly deemed such material, in advance, not to count as "inflammatory" or otherwise off limits. That may ease matters a bit, from defense counsel's standpoint, in that otherwise the defense might have to seek DOJ's blessing for any discovery document that might arguably implicate the ban. Additionally, in briefing regarding the SAMs dispute, the Justice Department has said that defense attorneys can seek clarification, as needed, regarding whether a given item meets the "relatedness" standard, and according to the government, the defense can also forgo such a query and simply send the item in question to Tsarnaev via non-legal mail.

Compare all of the foregoing to the Communications Order. It prevents counsel from giving detainees "[a]ny physical item or prohibited information the Commander, JTF-GTMO, or his designee, has deemed to be impermissible or inappropriate for an Accused Detainee to possess, be informed of (orally or in writing) or view." And, importantly in a case arising from the 9/11 attacks, the "prohibited information" category encompasses, among other things, "information relating to any ongoing or completed military, intelligence, security or law enforcement operations, investigations or arrests or the results of such activities by any nation or agency;" "[c]urrent political or military events in any country, historical perspectives or discussions on jihadist activities[,];" and "[i]nformation regarding the status of other Detainees (including former Detainees) at Guantanamo and information regarding any detention of Detainees[.]"

There's a wrinkle here, however---one that apparently distinguishes the military and civilian approaches. The Communications Order also proclaims that information will not be deemed contraband if defense attorneys "reasonably believe[] it is directly related" to the proceeding. And when a lawyer believes that a banned document must be presented to a 9/11 detainee, given the item's necessity for the case's defense; or the lawyer is concerned that otherwise innocuous material might contain informational contraband, then the lawyer can submit the relevant material to the court ex parte, together with "an explanation of why the material must be provided to the accused." The military judge can then sign off (or not), while notifying the JTF-GTMO command, so that any special handling procedures can be crafted when the time comes to pass the item on to a detainee.

Which is to say: commission counsel can obtain, before the fact, ex parte judicial review to ensure the propriety of items delivered to a detainee. There's no such ex parte review mechanism in place in the Tsarnaev case.

3. Screening of Attorney-Client Communications

Together, the SAMs and and background BOP regulations authorize limited screening of legal materials that defense attorneys provide to Tsarnaev. For documents furnished during meetings, a Bureau of Prisons employee must perform a brief review to ensure that the materials are indeed legal in nature. This occurs when defense team members arrive at the facility where Tsarnaev is detained; the BOP staffer may not report any information to the U.S. Attorney's Office unless he or she believes that the defense attempted to violate the SAMs. Standing alone, the SAMs do not set forth rules for the screening of legal mail. But they build upon standard BOP procedures---and under those, staff may open such mail in Tsarnaev's presence to inspect it for contraband. Staff may open other mail in the mail room before delivering it to inmates.

The Communications Order establishes a more elaborate process for screening legal materials that defense attorneys provide to detainees. Before submission, either during a client meeting or through the mail, counsel must give such materials to the Privilege Team for review. The team is comprised of Department of Defense attorneys, as well as intelligence and law enforcement personnel, none of whom have not played any role in the legal proceedings involving the accused and all of whom have agreed to preserve the lawyer-client privilege to the fullest extent possible.

Prior to Privilege Team submission, attorneys fist must sort documents into one of three categories---"Lawyer-Client Privileged Communications," "Other Case-Related Material" (including discovery materials and military commission filings), and "Non-Legal Mail and Material"---and label them accordingly. (Defense counsel must initial or sign, and add detainee identification to each page of every inbound document.)  The Privilege Team then examines the documents to confirm that they are correctly marked and do not contain physical contraband. That inspection does not involve a review of the "substantive content" of lawyer-client privileged material; the team generally also may not disclose the contents of the materials it peeks at. With the judge's permission, however, the Privilege Team may "consult with security and intelligence experts regarding potential Contraband" or report information that may incite violence or threaten national security to the commander of Joint Task Force-Guantanamo.

4. Restrictions on the Dissemination of Information Provided by the Accused

The SAMs cabin the defense's ability to distribute information received from Tsarnaev to third parties. According to a general SAMs provision on communications, defense attorneys may disclose the contents of Tsarnaev's communications only for the purpose of preparing his defense, and staff may not disseminate any such information. At the same time, the more specific provision on legal mail prohibits distribution of the contents of Tsarnaev's legal mail, apparently without exception. That said, the U.S. Attorney's Office, in response to a defense inquiry, has allowed counsel to share the contents of communications from Tsarnaev about his medical condition with his treating physician. However, the defense must advise the physician not to share this information with third parties. The Protective Order, entered by stipulation in the caseprecludes sharing of materials deemed "sensitive" by the United States, absent permission from the court and notice to the prosecution.

Defense attorneys at the military commissions are also limited, if differently so, in their ability to disseminate information provided by the accused. The attorneys hold security clearances and have signed classified information nondisclosure agreements, so they may not share any information that the government has classified. And in in the 9/11 case, the Protective Order specifies that several details about the case are to be handled as if they were classified, including information about the capture of the detainees, the movement and detention of the detainees prior to their arrival at Guantanamo Bay, and enhanced interrogation techniques. Thus, oral comments and written remarks by the detainees on these subjects cannot be shared with uncleared personnel, period.

5. Restrictions on Non-Lawyer Personnel

The SAMs limit the role of defense paralegals and other staff. Paralegals may meet with Tsarnaev alone if they are precleared by the government, while other staff may meet with Tsarnaev only if an attorney is present. At the defense's request, the U.S. Attorney's Office made an exception for two full-time-employee investigators, but it declined to make an exception for a contract investigator. Precleared defense staff may participate in calls with Tsarnaev only if an attorney is present.

The Logistics Order goes much further than the SAMs, prohibiting defense staff, paralegal or not, from meeting with a detainee unless an attorney is present.