Violation of Attorney-Client Privilege
The attorney-client privilege is the oldest privilege for confidential communications in the common law. Yet defense attorneys are prevented from bringing written work product to client meetings without revealing the contents to the government, unless they are signed or written by the defense team. Counsel are forced to rely on their memories to discuss complex legal issues.
Because of the government's ongoing interference with the attorney-client privilege, bin 'Attash had not received written privileged communication from his defense counsel from October 2011 until May 2012, when counsel filed a motion barring invasion of attorney-client communications. This caused "profound damage to the relationship between Mr. bin 'Attash and his counsel."
In addition, prison authorities established a "privilege team" to screen items prisoners could have in their cells to prevent their possession of "informational contraband"(which is given such a broad definition it could include media reports on efforts to close Guantanamo). But the review team includes intelligence agents, and they need not keep the information confidential.
Lawyers are forbidden from talking about "historical perspectives or [having] discussions of jihadist activities" or "information about current or former detention personnel" with their clients. Thus, Mohammad's lawyer cannot ask his client why he may have plotted against the United States or who might have tortured him in the CIA black sites.
Al Baluchi's attorney is precluded from comparing his client's alleged role in the offense with conspirators in other acts of terrorism who have and have not faced the death penalty. This is a serious interference with the defendant's ability to present a defense.
Judge Pohl will likely issue new rules regarding attorney-client communications as early as this month.
Red Cross Material
The International Committee of the Red Cross (ICRC) is an independent, neutral and impartial humanitarian organization. The Geneva Conventions contain a mandate for the ICRC to provide protection and assistance to victims of armed conflict and other situations of violence. ICRC's confidential information must be kept confidential.
All recipients of ICRC reports, including U.S. authorities, are obligated to protect and abide by ICRC's confidentiality. They are precluded from disclosing any confidential information in judicial or other legal proceedings.
Since 2002, the ICRC has visited detainees at Guantanamo. The ICRC engages in a confidential dialogue with the government about the conditions of confinement at Guantanamo. It also engages in confidential private interviews with detainees. The ICRC maintains its access, and its status of neutrality, because it guarantees confidentiality. But the ICRC can decide to turn over some of its material at its discretion.
The defense made a motion to compel the government to produce all correspondence between the ICRC and the Department of Defense regarding the conditions of confinement of the accused, including all ICRC reports, records and memoranda.
The prosecution argued "somewhat presumptuously" (in the ICRC's words) that it should be able to review all confidential ICRC material to determine what should be provided to the defense.
There is a tension between the ICRC's insistence on confidentiality, the government's security concerns and the defendants' right to exculpatory evidence under the Due Process Clause. The Supreme Court ruled in Brady v. Maryland that prosecutors must disclose materially exculpatory evidence in the government's possession to the defense. That includes any evidence that goes toward negating a defendant's guilt, that would reduce a defendant's potential sentence, or evidence bearing on the credibility of a witness.
Moreover, defense counsel argued that since this is a death case, there should be more favorable procedures for the defense. The prospect of an execution, without full disclosure of mitigating evidence, would shock a foreign government as much, if not more than, the provision of ICRC materials.
Excluding the Accused
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