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.
"The goal here is to have the trials open and public to the greatest extent consistent with protecting classified information," the official said.
But lawyers and advocacy groups pressing for legal rights for the detainees contend that there has been a change in tone since last fall, when Justice Department lawyers argued that the detainees might reveal details about their captivity that may "reasonably be expected to cause extremely grave damage" to national security, according to an Oct. 26 court filing.
One of the 14 special detainees, Majid Khan, 27, who went to high school in the Baltimore area, filled out his form on Sept. 5. He signed the document and added a short handwritten note at the bottom of the page. That note and the fact that the U.S. military had him sign the document have riled defense lawyers who have been attempting to represent Khan for more than a year at the request of his family but who have been denied access to him.
In the note, Khan said that he believes he already has an attorney at the Center for Constitutional Rights but that he has never received any official correspondence from that lawyer. The lawyer, Gitanjali Gutierrez, said yesterday that she has written Khan letters over the past year that clearly did not reach him.
"Please send me a lawyer or representative who can brief me with my options," Khan wrote, according to a copy of the form provided to The Washington Post by the Center for Constitutional Rights. "Also please, if you can send me basic introduction criminal law books with all law terms, etc. Also I would like to know what has media said about me and full copy of tribunal CSRT about me, which was available on the Internet. (Thanks in advance)."
The government alleges that Khan took orders from Mohammed, and was asked to research how to poison U.S. reservoirs and how to blow up U.S. gas stations.
Gutierrez said she thinks the effort to connect detainees with lawyers is the Defense Department "trying to put some gloss on the idea that this review process is legitimate and the high-value detainees are being given access to the courts."
"Now it's their opportunity to turn it from a gloss to a reality," Gutierrez said. "But we'll see if they come through."
Staff researcher Julie Tate contributed to this report.