U.S. to Allow Key Detainees to Request Lawyers

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By Josh White and Joby Warrick
Washington Post Staff Writers
Friday, September 28, 2007

Fourteen "high-value" terrorism suspects who were transferred to Guantanamo Bay, Cuba, from secret CIA prisons last year have been formally offered the right to request lawyers, a move that could allow them to join other detainees in challenging their status as enemy combatants in a U.S. appellate court.

The move, confirmed by Defense Department officials, will allow the suspects their first contact with anyone other than their captors and representatives of the International Committee of the Red Cross since they were taken into custody.

The prisoners, who include Khalid Sheikh Mohammed, the alleged mastermind of the Sept. 11, 2001, attacks, have not had access to lawyers during their year at Guantanamo Bay or while they were held, for varying lengths of time, at the secret CIA sites abroad. They were entitled to military "personal representatives" to assist them during the administrative process that determined whether they are enemy combatants.

U.S. officials have argued in court papers against granting lawyers access to the high-value detainees without special security rules, fearing that attorney-client conversations could reveal classified elements of the CIA's secret detention program and its controversial interrogation tactics.

Defense officials gave the detainees "Legal Representation Request" forms during the last week of August and the first week of September, and sources familiar with the process said at least four detainees have requested attorneys.

The form, referring to the Combatant Status Review Tribunal, allows the detainees to say whether they "wish to have a civilian lawyer represent me and assist me with filing a petition to challenge the CSRT determination that I am an Enemy Combatant." The Detainee Treatment Act, enacted in late 2005, gives Guantanamo Bay captives the right to challenge their enemy-combatant designations in the U.S. Court of Appeals for the District of Columbia Circuit.

The form distributed to the high-value suspects also allows them to request that the American Bar Association "find a lawyer who will represent my best interests, without charge."

William H. Neukom, the association's president, criticized the use of the organization's name on the form, telling government lawyers yesterday that his organization does not want to "lend support and credibility to such an inadequate review scheme."

A Pentagon spokesman said this week that the detainees, like all others at Guantanamo, are provided information on how to request counsel.

"These counsel will be permitted to visit the detainee and engage in confidential written communications with the detainee once the counsel has obtained the necessary security clearance" and agrees to certain special court rules, said Navy Cmdr. J.D. Gordon. One Pentagon official warned that those lawyers will have to undergo especially thorough background checks before they are allowed to see the high-value captives.

Defense and intelligence officials said the decision to allow legal representation does not represent a shift in policy.

"It was the intent and the plan all along that they would have a right to counsel," said a senior intelligence official, who insisted on anonymity because many details of the detention program remain classified. The official said the concerns about protecting sensitive government information apply equally to the 14 men and the approximately 325 other detainees at Guantanamo Bay.


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