Damned attorney-client privilege…

Not content to blame “asymmetric warfare” for the detainee suicides at the American detention facility at Guantanamo Bay, Cuba, the Pentagon has now figured out that the detainees who killed themselves last month probably passed notes using papers marked “attorney-client privilege” ordinarily used to communicate with their lawyers. As a result of this, naturally, the Pentagon has said that the practice of permitting such communications between detainees and their attorneys in writing will now be suspended. The government is seeking a court order to permit at least some form of interception of these attorney-client notes.
As the WaPo piece notes, detainees’ attorneys have said that the prisoners were closely monitored and there were supposed to be procedures in place to prevent the detainees from using such papers to communicate with each other. These procedures apparently didn’t work.
And so here we are. Had the government not intended to set up a facility on an American base that it nonetheless claimed was beyond the reach of our courts, had these detainees been provided Geneva Convention rights of being “presumptively” prisoners of war until it could be determined that they really were the worst of the worst (instead of the opposite)… they wouldn’t have lawyers in the first place. They wouldn’t need lawyers, other than for those who would be formally charged with something (i.e. around 2% of those at Guantanamo). Because they would be “prisoners of war.” No reason for lawyers in that circumstance.
But instead, the Bush Administration, for its own reasons, decided to have it both ways: it’s a war for purposes of holding people for the duration of hostilities (up to and including forever), but suddenly it’s not a war for purposes of providing detainees’ rights such as P.O.W. status (query whether the Hamdan ruling changes this result, and forces all of those detained from the Afghan conflict to be presumptively prisoners of war… I would submit the decision could be read both ways on that; we may need yet further court guidance on this point.)
And there we are. The President could have gone to Congress way back in 2001 or 2002 when he had massive bipartisan support and gotten the appropriate legislation to modify the domestic legal effect of our Geneva Convention treaty ratification, including an appropriate framework for legal tribunals… but the President and those advising him believed that the principle of Presidential Infallibility and expansion of executive power were more important than any salutory results in advancing our prosecution of the war against al Qaeda that might be achieved from trying to obtain legal authority “the usual way”. It is unclear what ultimate effect this executive hubris will have on the prosecution of military actions going forward… Some might criticize the High Court for tying the President’s hands in prosecuting military action… but let’s be clear: the President put the Court in the position of having to try to balance the need to prosecute military action and the rest of our Constitution. The President alone.
So… at Gitmo… just as the first reaction was to blame the victims of a 4 1/2 year campaign of dehumanization for finally succeeding at the one aspect of freedom they had left to them, i.e., the freedom to take their own lives in stealth (even refusing to take food resulted in force-feeding), the next logical reaction is to try to cast some blame on the heroic men and women who have signed on to try to provide legal representation to (at least to most Americans) some of the most publicly despised men in the world.