The military must give men imprisoned at the U.S. Navy base at Guantanamo Bay, Cuba, speedy access to their attorneys and cannot monitor their conversations with the lawyers, a federal judge ordered yesterday.
In a scolding opinion expected to aid other detainees who argue that they have been unfairly imprisoned at Guantanamo Bay, U.S. District Judge Colleen Kollar-Kotelly rejected the government's claim that it needs to monitor all conversations, notes and mail between lawyers and three detainee clients to protect the nation from future terrorist attacks.
Kollar-Kotelly's ruling covers only three Kuwaitis held for almost three years at the prison. But it also deals a blow to the Bush administration's position that it can dictate access rules to the 68 alleged al Qaeda and Taliban fighters who have demanded that the government justify their imprisonment or release them.
Kollar-Kotelly's decision came in a lawsuit, filed two years ago, by 12 Kuwaiti nationals, three of whom are scheduled to meet their attorneys in the near future. But her 20-page conclusion is a strong signal to other judges presiding over detainees' claims that are still wending their way through the federal court in Washington.
Kollar-Kotelly wrote that the Supreme Court clearly ruled this summer that the more than 500 Guantanamo detainees, all foreign nationals, have the right to challenge their imprisonment in U.S. courts. She concluded that the high court's ruling means they must have access to American lawyers, a position the government had fought.
The judge also wrote that allowing lawyers and their clients to speak privately is virtually guaranteed in the U.S. court system. She said government claims that the president can limit those rights because of fears that the detainees will pass along or gain information threatening national security is "thinly supported."
Attorneys for detainees applauded the ruling, saying it upholds a fundamental principle of the legal system and affirmed the ruling by the Supreme Court in June.
"It's a great decision for the detainees and for this country. . . . The judge is saying people have a right to counsel without the government being in the room with you," said Michael Ratner of the Center for Constitutional Rights, which filed petitions for many of the detainees this summer.
Pentagon spokesman Maj. Michael Shavers said the Defense Department and its attorneys at the Justice Department need time to review the opinion before deciding whether to appeal.
"We'll look at the ruling from the judge and look at the way ahead," he said.
Army Brig. Gen. Martin Lucenti, acting commander of the military task force that runs the prison at Guantanamo Bay, has told the court in written filings that the three Kuwaitis have strong connections to al Qaeda and may try to use their conversations with their attorneys to obtain secret information about U.S. vulnerabilities and relay messages to terrorist cells.
Lucenti said that one of the detainees, Mohammed al Kandari, "may have served as a spiritual advisor to Usama bin Laden"; that Fawzi al Odah has "admitted to having Taliban connections and has admitted to being a member of al Qaida"; and that Khalid al Mutairi "has expressed his anti-American views and his desire to engage in terrorist and other violent activity against Americans."
But Kollar-Kotelly wrote that rules set by the court governing meetings between lawyers and detainees address the risk to national security. The attorneys for the detainees must obtain security clearances to visit their clients at the Cuba base, and they must get court approval to share information from their clients with the detainees' relatives or other lawyers.
The judge wrote that a government that spies on the essential, confidential relationship between a lawyer and client "would lay waste to the value of attorney-client privilege" and added: "The government attempts to erode this bedrock principle with a flimsy assemblage of cases and one regulation."
A few lawyers have met with clients at the prison under conditions set by the government. One has complained that the government listened in on their conversations and breached her client's confidentiality by releasing some information about him.
Thomas Wilner, an attorney for the Kuwaitis, said he was willing to observe some government rules to avoid any risk of security breaches, but he questioned how dangerous his clients truly are.
"It's really strange that after three years down there, none of them have been designated by the government as a terrorist or terrorist supporter," he said of his three clients. "You would think if they were so dangerous, that would have happened by now."