Detainees' rights subverted at Guantánamo, their lawyers say

A federal judge asks for statements from two guards accused of threatening a detainee.

On July 18, Ahmed Zaid Zuhair, a detainee in Camp 6 of the US Naval Station at Guantánamo Bay, wrote to his legal team in the US, terminating all written communication. He claimed that two guards had harassed him the previous night: one threatening to kill him and quarter his body; the other threatening to cut off his ears and nose. One guard then read through his legal correspondence, confiscating several documents.

"Right now, my state of mind is not normal because I have been threatened with death by a guard," Mr. Zuhair wrote. "Do not send any more papers after today."

It's impossible to verify Zuhair's charges. The US military says it won't comment on specific allegations in a district court case. But Zuhair's decision to halt communication with his legal team highlights the ongoing challenge of defending inmates at Guantánamo.

If detainees can't communicate with their lawyers without fear of retribution, defense lawyers say, then their rights to an attorney – or to challenge their detention under habeas corpus – don't amount to much.

"Without assurances that future contact with his lawyers will not occasion death threats, Zuhair's right to habeas corpus is meaningless," says Darryl Li, a member of Zuhair's legal team from the Allard Lowenstein International Human Rights Clinic at Yale Law School.

The judge has not yet ruled on the motion.

The courts have affirmed that the detainees have legal rights. In 2004, a federal judge handed down a protective order that preserved attorney-client privilege while addressing the government's national-security concerns. This summer, the US Supreme Court clarified that detainees do indeed have the right to challenge their detention.

Many are making that challenge. Of the 270 detainees at the detention facility, 235 have court proceedings under way. Zuhair's case stands out because his allegations about the guards caused his legal team to file an emergency motion Aug. 12, asking a federal district judge in Washington, D.C., to intervene immediately and ensure that Zuhair's legal papers are returned to him and that he is allowed to speak with his attorneys so that they can assure him that his rights will be respected.

Sworn statements from accused guards

On Sept. 12, the judge ordered that the accused guards, identified by their badge numbers in Zuhair's letter, file sworn declarations within 10 days – a first, according to Mr. Li.

"In similar instances so far, the government has only produced vague declarations by the camp commander, not a response from actual personnel accused of wrongdoing," he says. This order ... sends a strong message that the abuse of detainees will no longer be met with total impunity and official silence."

The military declined to comment directly about Zuhair's case.

"Our guard force is highly trained and professional," Cmdr. Pauline Storum, a spokeswoman for the Joint Task Force Guantánamo (JTF), wrote in an e-mail. "They operate in the most ... scrutinized of environments and do so honorably. We go to great lengths to facilitate attorney-client privilege.... JTF remains committed to the safe and humane, legal and transparent care and custody of detainees."

But lawyers claim that violations of the attorney-client privilege are routine. "It's typical for guards to read through legal papers and confiscate them as a form of punishment," says David Remes, the legal director of Appeal for Justice, a human rights litigation firm. He recalls an incident when notes he took during meetings with his clients arrived in Washington for a classification review with "all the seals broken and the flap of the envelope opened."

The 2004 protective order established a separate system to allow detainees and lawyers to communicate rapidly. A special privilege review team made up of Department of Defense censors monitors the correspondence, checking it for physical contraband. Once approved – correspondence cannot include mentions of intelligence, security, current political events, or news about other detainees – the mail is to be delivered in confidence to clients within two business days.

"Breaches of attorney-client privilege are par for the course," says Brent Mickum, a Washington-based lawyer representing high-value detainee Abu Zubaydah as well as others since freed from the facility. He recounts that when he sent letters to his clients recommending that they not participate in the Combatant Status Review Tribunal (CSRT), a military panel deciding whether prisoners are enemy combatants, his correspondence was delivered a day after the client's review in each case.

"It's clear that the military opened my mail, looked at it, and made the conscious decision not to deliver it until after the CSRT," he says.

Military rules protect detainee rights

The military says it follows strict rules that don't allow such violations.

"Camp guards are not permitted to read a detainee's legal mail," writes Commander Storum. "When guards conduct routine searches, they are authorized to search open envelopes containing any type of mail for physical contraband. We go to great lengths to facilitate attorney-client privilege while maintaining the security of the guard force and the detainees."

Lawyers also claim that military personnel regularly interfere with attorney-client relationships. "Being able to explain to [clients at Guantánamo] what our role as attorneys is and being able to convince them that we work in their interest has been terribly difficult," says David McClogin, an assistant federal defender in Philadelphia,

Mr. Remes and others claim that interrogators and guards often told their clients that having legal representation would be counterproductive and delay their release from the facility.

He adds that interrogators also impersonate lawyers. "They'd send in people pretending to be lawyers, but it would be so transparent that they were working for the government that prisoners were left with a tremor of doubt," he says. "When we showed up, they had to worry if we were for real."