right of the defendants to communicate with counsel of their choosing and impair their
right to adequately prepare their defence.1037
402. Secondly, ODIHR is troubled by reports of violations of defendants’ right to communicate
with their attorneys in full confidentiality.1038 For example, Colonel John Bogdan, thenCommander of the Joint Detention Group at Guantánamo acknowledged in February 2013
that several attorney-client meeting rooms contained hidden listening devices1039 and two
cameras.1040 The ability of courtroom microphones to capture confidential conversations
between attorneys and their clients, even when attorneys purposefully muted one of them,
has also been of concern. ODIHR notes Judge Pohl’s conclusion in 2013 that “no
monitoring has occurred for at least the prior two years” in meeting rooms.1041 US
assurances that there are currently no listening devices in rooms used for attorney-client
meetings,1042 that private conversations between counsel and their client in the courtroom
remain private and are not recorded, transmitted or shared with anyone outside the
privileged attorney-client relationship are welcome.1043 The policies prohibiting the use of
the zoom feature of cameras during attorney-client meetings and in the courtroom (except
under carefully controlled circumstances) are similarly welcome.1044 However, ODIHR is
concerned that the disguised appearance of the listening devices and other repeated
allegations of breaches of attorney-client privilege contribute to creating a climate of
suspicion capable of hindering the attorney-client relationship. ODIHR indeed wishes to
<http://www.lawfareblog.com/2013/11/another-order-in-the-911-case-this-one-on-legal-mail/>; ODIHR interview with Cheryl
Bormann, Air Force Captain Michael Schwartz, Navy Reserves Lieutenant Commander James Hatcher and Tim Jon Semmerling,
ibid.; ODIHR meeting with the Department of Defense Office of the Chief Defense Counsel, ibid.
1037
See, also, UN Working Group on arbitrary detention, Tariq Aziz v. Iraq and United States of America, Opinion No. 33/2006,
17 November 2006, paras. 8, 19, <http://www.unwgaddatabase.org/un/Document.aspx?id=2313&terms=(+tariq+aziz+)>: “8.
Since then, Tariq Aziz has had sporadic meetings with his defence counsel (…). These meetings take place under circumstances
which render the effective preparation of a defence case very difficult. The defence counsel is not allowed to see his client at
dates he requests. Instead, he is informed at very short notice (never more than a day) by the United States authorities of a
meeting date. (…) 19. (…) Also the right to ‘communicate with counsel of his own choosing’ enshrined in article 14(3)(b)
ICCPR is seriously undermined, as the meetings take place at unforeseeable intervals as dictated by the United States authorities
(…)”; UN HRC, Hicks v. Australia, “Individual Communication”, op. cit., note 754, para. 214.
1038
ODIHR interview with Human Rights Watch, op. cit., note 821; ODIHR interview with the Center for Constitutional Rights,
5 August 2013.
1039
The hidden microphones are inside devices that look like smoke detectors. United States Military Commission, United States
of America v. Mohammad et al., “Unofficial/unauthenticated transcript of the hearing dated 2/13/2013 from 10:28 AM to 12:02
PM”, p. 2203; United States Military Commission, United States of America v. Mohammad et al., “Unofficial/unauthenticated
transcript of the hearing dated 2/12/2013 from 1:00 PM to 2:37 PM”, pp. 1984-1985; Denbeaux et al., “Spying on attorneys at
GTMO”, op. cit., note 1032, p. 1.
1040
United States Military Commission, United States of America v. Mohammad et al., “Unofficial/unauthenticated transcript of
the hearing dated 2/13/2013 from 10:28 AM to 12:02 PM”, ibid., pp. 2181-2182, 2203, 2227-2228, 2239-2240; Denbeaux et al.,
“Spying on attorneys at GTMO”, ibid., pp. 1-3. See, also, United States Military Commission, United States of America v.
Mohammad et al., “Unofficial/unauthenticated transcript of the hearing dated 2/12/2013 from 1:00 PM to 2:37 PM”, ibid., pp.
1984, 1971-1972; Carol Rosenberg, “Attorney-client meeting room was bugged, Navy lawyer testifies at Guantánamo”, Miami
Herald website, 12 February 2013, <http://www.miamiherald.com/news /nationworld/world/americas/guantanamo/article1947210.html>.
1041
United States Military Commission, United States of America v. Al-Nashiri, AE 149K, “Order - Defense Motion for
Appropriate Relief: Determine the Extent of Past Monitoring at Camp Echo II and Order that No Future Monitoring Occur in
JTF-GTMO Facilities”, 5 August 2013, p. 4.
1042
US comments to the draft report.
1043
Ibid.
1044
United States Military Commission, United States of America v. Mohammad et al., AE 297 (AAA), “Defense Motion For
Order that Cameras in Courtroom #2 Not Zoom in on Defense Materials”, 7 May 2014; United States Military Commission,
United States of America v. Mohammad et al., AE 297B (AAA), “Withdrawal of Defense Motion For Order that Cameras in
Courtroom #2 Not Zoom in on Defense Materials”, 10 June 2014.
177
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