In the previous weeks, the government had carted away over half a ton of similar materials from the cells of other prisoners — much of which, like Hamdan's notes, are protected by attorney-client privilege. "In these notes the government knows all of my future legal strategy," Hamdan writes in his affidavit. The government has said it seized the material as part of its investigation into the suicides of detainees at Guantanamo.
"At midnight they took from me my notes that dealt with our future legal strategy and my questions," writes Hamdan, who was allegedly Osama bin Laden's driver. "I got mad and I called the guard in a raised voice because he was getting far away from me. At that moment the guard returned and took out a pepper spray can and put it in my face and demanded I be quiet and told me the discussion is over. I sat down complying with the guard's orders."
This week in federal court in Washington, D.C., lawyers for Guantanamo detainees asked a federal judge to order the return of materials covered by the attorney-client privilege and hold the government in contempt for having taken possession of them in the first place. Hamdan is not part of this filing. But given the Bush Administration's recent loss in the Hamdan case, this latest legal salvo represents another potentially embarrassing challenge to the Justice Department's strategy for Guantanamo. The Justice Department has filed its own motion requesting court-sanctioned procedures, including the use of a "filter team," to review the 1,100 pounds of seized detainee documents to ensure that materials relevant to the investigation "can be uncovered without inappropriately compromising privileged attorney-client communications," says Justice spokeswoman Kathleen Blomquist.
The documents were seized as part of an investigation into the June 10 suicides of three detainees, according to papers filed by the government in federal court. But David Remes, author of one of the detainee filings, says that the rules set up to guide the attorney-client relationship at Guantanamo require that the government notify the court before any such seizures occur. No such notification was given until almost a month after the papers were taken. The government alleges that prisoners had planned the suicides in secret, using confidential lawyer-client papers to pass handwritten notes.
But lawyers for some of the Guantanamo prisoners are now challenging the government's version of events. An affadavit filed by a lawyer for one detainee said: "Our client reported that he and many other detainees had their written materials seized more than ten days before the deaths of the three [suicides]" — nearly six weeks before Guantanamo authorities claimed that prisoner materials were impounded. If this claim were proven in court, it could undermine the government's contention that attorney-client materials were seized in the course of an investigation into the three prisoners deaths, and not before.
The same legal filing asks that the government be ordered "to show cause why it should not be sanctioned for seizing and reviewing the prisoners' legal papers without notice to and approval by the Court... and failing to report its actions to the Court... until nearly a month after the fact." It also asks the judge to force the government to hand over the seized prisoner materials to their lawyers "immediately" — and have all "copies, summaries, descriptions and analyses" of that material in government possession destroyed.
Rather than blaming only military authorities at Guantanamo for the seizure, the filing takes aim at the Justice Department as well, arguing that DOJ's "failure to disclose the seizure... suggests that the Department was a full partner [in] the massive breach of the attorney-client privilege." Though it is uncertain how a federal court might rule on such a motion, in the past judges have upheld the right of Guantanamo prisoners to meet with lawyers, and have taken steps to design the procedures under which that should happen, including preservation of the attorney-client privilege.
Hamdan's lawyers opted not to join the other detainees' filings on the seizure of handwritten notes while they see how the dust settles in the wake of the Supreme Court ruling. But, says Hamdan attorney Lt. Cmdr. Charles Swift, Hamdan's seized notes had nothing to do with the suicides and were not even written until weeks later but could be of use to government lawyers who would be arguing against Hamdan in a future legal action. Taking these notes, says Swift, is a clear "interference in the attorney-client relationship."