reiterate that privileged attorney-client communications should never take place within the
hearing of law-enforcement officials.1045 Video-monitoring should not be used to
circumvent the prohibition of audio-monitoring by reading documents and revealing the
content of confidential attorney-client discussions. Instead, effective measures should be
taken to ensure the confidentiality of attorney-client communications.1046
403. In recent years, the establishment and implementation of security procedures enabling
military officials to search for and eliminate contraband has led to several allegations of
seizures of confidential attorney-client materials and inspection of the content of attorneyclient written communications. ODIHR notes with concern two 2011 Memoranda which
allegedly allowed military officials to review and read all written correspondence between
co-defendants in the Mohammad et al. case and their attorneys.1047 The then-Chief Defense
Counsel prohibited defence attorneys from using the legal mail system for privileged
communications, in order to ensure that they would not violate their ethical obligations by
complying with the newly established rules.1048 As a result, defence counsel in the
Mohammad et al. case reported being unable to exchange confidential written
communications with their clients for two years.1049 Seizures of privileged mail in
defendants’ cells also allegedly occurred on multiple occasions in the Mohammad et al.
and Al-Nashiri cases,1050 to the extent that defence counsel characterized them as
“systematic”.1051 The materials seized are said to have included attorney-client notes and
“confidential letters delineating trial and motion strategy”.1052 ODIHR is concerned by
these allegations of acts that would constitute an invasion of privileged attorney-client
communications. The inspection of detainees’ legal papers to ensure that they do not
contain contraband should not lead to such invasions. Legal files and documents should at
1045
“Body of Principles”, op. cit., note 89, Principle 18; “Standard Minimum Rules for the Treatment of Prisoners”, op. cit., note
280, Rule 93; “Basic Principles on the Role of Lawyers”, op. cit., note 939, Principle 8; UN Special Rapporteur on human rights
and counter-terrorism, Report to the General Assembly, A/63/223, op. cit., note 55, para. 39.
1046
UN CAT, Concluding Observations of the Committee against Torture, Jordan, CAT/C/JOR/CO/2, op. cit., note 130, para. 12.
1047
JTF-GTMO Commander, “Memorandum For See Distribution - Order Governing Logistics of Defense Counsel Access to
Detainees Involved in Military Commissions”, 27 December 2011,
<https://www.aclu.org/files/assets/gitmo_orders_20111227.pdf >; Jamie Reese, “Guantanamo Chief Defense Counsel Refuses to
Allow Review of Attorney Letters”, Jurist website, 12 January 2012, <http://jurist.org/paperchase/2012/01/guantanamo-chiefdefense-counsel-refuses-to-allow-review-of-attorney-letters.php>; ODIHR interview with Marine Corps Major Derek Poteet,
Navy Reserves Lieutenant Commander James Hatcher and Tim Jon Semmerling, 3 June 2014.
1048
Chief Defense Counsel Colonel Jeffrey P. Colwell, “Effective immediately: ethics instruction against execution of either JTFGTMO-CDR order acknowledgment, and against allowing legal mail to be subjected to review by the privilege team”, 8 January
2012, <http://www.aclu.org/files/assets/colwell_email_on_attorney-client_communication_monitoring_at_guantanamo.pdf>;
Reese, “Guantanamo Chief Defense Counsel Refuses to Allow Review of Attorney Letters”, ibid.
1049
ODIHR interview with Marine Corps Major Derek Poteet, Navy Reserves Lieutenant Commander James Hatcher and Tim
Jon Semmerling, op. cit., note 1047. See, also, United States Military Commission, United States of America v. Mohammad et al.,
AE 008 (MAH), op. cit., note 845, pp. 8-9; Bennett, “Another Order in the 9/11 Case, This One On Legal Mail”, op. cit., note
1036. ODIHR notes that a written communication management order was adopted in the case in November 2013, and takes note
of US assurances that the prosecution is not involved in reviewing any detainee’s legal mail, does not communicate with JTFGTMO personnel concerning the review of materials, and is not privy to the information contained in the legal mail. United
States Military Commission, United States of America v. Mohammad et al., AE 018U “Order - Privileged Written
Communications”, 6 November 2013. US comments to the draft report.
1050
“Requests to Improve the Conditions of Confinement in Guantánamo”, Office of the Chief Defense Counsel, op. cit., note
424, p. 5; ODIHR interview with Navy Commander Brian Mizer, op. cit., note 614; ODIHR interview with Cheryl Bormann, Air
Force Captain Michael Schwartz, Navy Reserves Lieutenant Commander James Hatcher and Tim Jon Semmerling, op. cit., note
725.
1051
“Requests to Improve the Conditions of Confinement in Guantánamo”, Office of the Chief Defense Counsel, ibid.
1052
Ibid.
178
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