Signs of Detainees' Planning Alleged

By Josh White
Washington Post Staff Writer
Saturday, July 8, 2006

Three suicides at the U.S. detention facility at Guantanamo Bay, Cuba, may have been part of a broader plot by detainees who were using confidential lawyer-client papers and envelopes to pass handwritten notes their guards could not intercept, according to documents that government lawyers filed yesterday in federal court.

Detainees could apparently hide documents in their cells -- including instructions on how to tie knots and a classified U.S. military memo regarding cell locations of detainees and camp operational matters at Guantanamo -- by keeping the materials in envelopes labeled as lawyer-client communications. Notes that investigators found after the suicides on June 10 were apparently written on the back of notepaper stamped "Attorney Client Privilege," which allowed detainees to communicate secretly without interference, according to government officials.

The alleged discoveries have led military commanders to suspend allowing detainees to have paper provided by defense lawyers. Government lawyers have also asked a judge on the U.S. District Court for the District of Columbia to allow them to assemble "filter teams" to scour more than 1,100 pounds of documents seized by investigators, some of which are protected by lawyer-client privilege and would usually be off-limits to authorities.

Defense lawyers for Guantanamo detainees said that their clients are closely monitored and should have no way to pass such notes, and that the filing yesterday is designed to complicate their efforts.

In an affidavit filed with the court, Rear Adm. Harry B. Harris Jr., the facility's commander, said the Naval Criminal Investigative Service has information that suggests the suicides "may have been part of a larger plan or pact for more suicides that day or in the immediate future."

He also said that on June 22, he asked NCIS to investigate whether the suicides were "otherwise encouraged, ordered, or assisted by other detainees or third persons" -- implying that the probe could extend to lawyers for the men -- and whether their private communications could have included improper materials.

Lawyers are permitted to share with detainees legal communications or publicly filed documents, but they are not allowed to pass classified or "protected" information to clients.

Barbara Olshansky of the Center for Constitutional Rights, which represents most of the Guantanamo detainees, said the allegations that lawyers could have played a role in the suicides are "patently offensive" and "outrageous." She said the government is again trying to make it difficult for lawyers to represent the 450 detainees held there.

"I can't imagine what they think they've found," Olshansky said last night. "All I can see this as is an elaborate ruse to take away whatever these people have so they have absolutely nothing, and to make these lawyers fight for yet another thing."

Investigators impounded detainees' written materials on June 14, taking them from plastic bins the detainees use to store personal items and papers, according to the court filing and an affidavit by Carol Kisthardt, an NCIS special agent in charge of the agency's Southeast field office. Four days later, investigators focused on materials related to 11 detainees, though government lawyers did not detail why they picked those men.

"The materials uncovered in these initial searches comprising a very small amount of detainee materials demonstrated, however, that detainees had developed practices for misusing the existence of a privileged attorney-client communication system," the government lawyers wrote, "presumably to shield the communications from the suspicion or scrutiny of JTF-Guantanamo guards, who have not been permitted to inspect or review attorney-client communications."

The court papers say that investigators found suicide notes written in Arabic on the bodies of the detainees and that they found notes hidden in the wire mesh of their cells and neighboring cells.

The discovery of the papers "indicated the passing of materials and messages between detainees and that some level of planning or coordination of the suicides had taken place" because two of the men had never been visited by attorneys, yesterday's filing says. The three detainees used torn bedsheets and clothing to hang themselves, military officials have said.

Defense lawyers have called the suicides acts of desperation by detainees who saw no hope of being released or of having a fair trial.

"The whole concept that these suicides are a plot or a plan is of a piece with the absurd contention that suicide is an act of warfare in this setting," said David Remes, a Washington lawyer who represents a group of Guantanamo detainees. "What comes through to me is that the military has found a way to use the suicides to break through a very carefully constructed and painstakingly negotiated mechanism of protecting the attorney-client privilege."

David Engelhardt, who represented Ali Abdullah Ahmed, a Yemeni detainee who killed himself June 10, said there is no way to know if there was a suicide plot because he was never granted access to his client.

"A plot to do what?" Engelhardt said. "Who exactly did he hurt by hanging himself? What do you have to gain besides the stretching of your own neck? This is offensive and ignorant."

Researcher Julie Tate contributed to this report.

© 2006 The Washington Post Company