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Getting up to speed on detainees

SHOWCASE | May 15, 2007

Longtime Supreme Court reporter Lyle Denniston writes a primer on U.S. detainee policy and the legal challenges expected in the coming months.

(Cross-posted with permission from SCOTUSblog.)

By Lyle Denniston

No part of the Bush Administration's campaign against terrorism has drawn more sustained challenge -- legally, politically and diplomatically -- than its policy on handling of individuals who are captured and then held in detention for prolonged periods, usually outside the U.S. mainland. Four times, the Supreme Court has reviewed facets of this policy, leading to changes or to entirely new detainee review procedures in the military or in civilian courts. More recently, however, the Court or Chief Justice John G. Roberts, Jr., acting alone, have refused to hear or have rejected new challenges by detainees' lawyers. As a result, the detainees' legal fate in coming months will rest largely (though not exclusively) in the hands of lower courts.

Part I
The Basics: laws, legislation, courts, cases, issues

A. The overall situation

Pentagon figures show that 389 individuals remain confined at the U.S. military prison camp in Guantanamo Bay, Cuba, and one remains in a U.S. Navy brig in Charleston, S.C. Many of them have civilian lawyers, almost all of whom are representing their clients for free. All at Guantanamo are foreign nationals, the one in the brig is a resident alien; all have been designated, at one time or another, as "enemy combatants" -- initially, by presidential order for a few, or, by military panels, for most. Some held at Guantanamo have been designated as "no longer enemy combatants," but remain there nonetheless, because of actual or perceived complications in releasing them.

Soon after captives began arriving at Guantanamo Bay more than five years ago, their challenges to detention have drawn the U.S. courts into close monitoring of war-on-terrorism policies of the Administration. The Supreme Court has issued four rulngs on detainees' rights -- two involving foreign nationals, two involving U.S. citizens. All of those decisions either struck down government policies, or voiced caution about potential excesses. It is now clear that U.S. citizens may pursue broad-based challenges to their detention, under federal habeas corpus laws. Foreign nationals and resident aliens, however, have remained in or emerged into a separate legal category, with diminished legal rights.

Three issues have run through all of the court cases up to this point: first, whether foreign nationals have any right to challenge their detention -- a question of access to the courts; second, if such challenges are allowed, whether the government (including the President) had any authority to order or to prolong the detentions -- a question of Executive branch power, especially under Congress' post-9/11 Resolution, and, third, if such challenges are allowed, whether the military and civilian court processes for reviewing continued detention are legally adequate under U.S. laws, treaties or the Constitution -- a question of legal rights, both substantive and procedural.

The Supreme Court has allowed the government to capture either foreign nationals or U.S. citizens, but only if that was done overseas and in an active combat zone. A question remains how long continued detention would remain legal, even if initial capture was legal. The Court also has allowed both alien and citizen detainees to file some challenge in federal courts, even if seized on an overseas battlefield, but has not yet reached the issue of court access for those captured within the U.S. The Court has never ruled in a final way on who could be seized based on the claimed status of "enemy combatant."

Congress has passed two laws to take away or reduce the legal rights of captives who are foreign nationals -- the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006. The DTA had two purposes: an attempt to eliminate habeas challenges by foreign national detainees at Guantanamo, and the creation of a limited alternative review of military detention proceedings by the D.C. Circuit Court. The Supreme Court ruled that the habeas-stripping provisions in DTA did not apply to pending cases, however; the alternative remedy in the D.C. Circuit remains in effect. The MCA sought to wipe out all habeas challenges by any detainee captured after Sept. 11, 2001, shunting detainees into the DTA review process at the Circuit Court. It remains an open question whether this applies to a detainee seized within the U.S. The MCA also created new war crimes tribunals ("military commissions") to replace the presidentially-drafted commission trial system that the Supreme Court had struck down in 2006.

Only three of the detainees at Guantanamo Bay now face war crimes trials before military commissions created under the MCA, although the Pentagon has said that others will be charged as time goes on. The other Guantanamo detainees, and the detainee at the Charleston brig, have not been charged with any crimes. There are currently no cases in the federal courts involving U.S. citizens challenging their status as "enemy combatants." (One citizen, Jose Padilla, is now on trial on terrorism-related charges in a regular federal District Court in Miami, after having been released from military detention at the Navy brig. Jury selection has just been completed in Padilla's case.)

Congress is considering various legiislative proposals, but none of the more significant proposals now under consideration to regulate the treatment of detainees appears likely, if passed, to have enough support to survive a probable presidential veto.

Following are background facts and summaries of activities now unfolding in Congress and the courts.

B. Laws and legislation

The Detainee Treatment Act and the Military Commissions Act now control the military's procedures for detainees and the response of the federal civilian courts to detainees' legal challenges.

Under the DTA, detainees who have had their detention reviewed and upheld by a military "Combatant Status Review Tribunal" have a right to ask the D.C. Circuit Court to review the CSRT process and its findings about continued detention. The review might be limited to the record before the CSRT (that is in dispute), and the law appears to allow some constitutional challenge -- provided, that is, the detainees have any constitutional rights to assert (itself another issue). Presumably, the Supreme Court would have authority to review any Circuit Court ruling on a detention, especially if constitutional issues were at stake.

The habeas-stripping provisions of the DTA no longer matter; they have been replaced by more restrictive provisions in the MCA.

The MCA sought to take away all habeas or other existing legal challenges by war-on-terrorism detainees, and provided instead for detainees' access to the DTA review process at the D.C. Circuit. Whether that withdrawal applies to a detainee taken prisoner in the U.S. is still a contested issue. The MCA, besides setting up new war crimes processes before newly created "military commissions," provided for review of final convictions by such tribunals. A decision by the Circuit Court may be challenged in the Supreme Court, but review there is discretionary, MCA provides..

Congress is now considering whether to modify or repeal the MCA's ban on habeas challenges. Bills have been introduced (such as H.R. 1416 and S. 815), but those measures have not moved at all in the committees to which they were referred. Civil liberties and human rights groups had been trying to persuade lawmakers to write a restoration of habeas rights for detainees into a new Pentagon budget bill, but the House Armed Services Committee refused on Thursday to do so. A rally to promote the issue will be staged in Washington by those groups on June 26.

There are also proposals in Congress to close altogether the detention facility at Guantanamo Bay (such as H.R. 2212 and S.1249). Both would require the prison part of the Naval base there to be shut down, and the detainees transferred to the U.S. mainland for trial in a civilian or regular military court, or to be further detained if Congress authorized it. Although some members of the Bush Administration have favored closing Guantanamo's prison operation, President Bush is rigorously opposed.

It is unclear whether any of these measures would clear either house of Congress. If any does, a veto by President Bush looms, and there very likely would not be enough votes to override.

C. Courts, pending cases, and issues

At this point, cases are pending in the Supreme Court, in two federal Circuit Courts, and in most of the U.S. District Courts in Washington, D.C. The Supreme Court, for the time being, at least, is probably going to be the least active. But new cases could be reaching it over the summer and this fall.

(1) The Supreme Court

On April 2, the Court refused to review the Feb. 20 decision of the D.C. Circuit Court upholding the Military Commissions Act's habeas-stripping provisions. (Boumediene v. Bush, 06-1195, and Al Odah v. U.S., 06-1196). Those appeals were challenges only to the loss of habeas rights, and did not raise direct questions about the constitutionality of the DTA review process or of the new military war crimes trials. The Boumediene case did attempt to raise the issue about the legality of the detention, but the Circuit Court had not passed upon that question. The Court gave no reasons for denying review, although two Justices wrote separately to say they preferred to have the detainees test the DTA process first. Three other Justices -- one short of the number needed for review -- would have heard the cases.

Petitions asking the Court to rehear the denial of those cases are now pending at the Court, along with a request not to act on those petitions until after the Circuit Court completes review of their cases under the DTA process. The Justices will consider those filings at their private Conference on May 24.

The Court, with three Justices again dissenting, on April 30 refused for a second time to review the Circuit Court ruling upholding the MCA habeas-stripping provisions, and refused to hear a joined appeal by Salim Ahmed Hamdan, a Yemeni national, seeking the right to challenge his forthcoming trial before a "military commission." (Hamdan v. Gates/Khadr. v. Bush, 06-1169). There is no pending petition for rehearing of that denial. The case thus goes back to the Circuit Court, which has called for new briefs by June 8 on what to do next with Hamdan's case.

The Supreme Court has one other pending detainee case: In re Ali (06-1194), involving an individual whose real name is Anwar Hassan. He has challenged his imprisonment. His case has been on hold in U.S. District Court. His appeal seeks to raise an issue not yet before the Supreme Court -- whether the Court retains the authority, despite the MCA, to review his case on an original habeas plea. The Justice Department has not yet responded to this petition; that response is currently due May 16.

(2) Fourth Circuit Court

Another rulng by a federal appeals court on the habeas-strripping provisions of MCA is expected fairly soon from the Fourth Circuit in Richmond. A three-judge panel of that Court held a hearing Feb. 1 in the case of Al-Marri v. Wright (Circuit docket 06-7427). The panel included Circuit Judges Diana Gribbon Motz and Roger L. Gregory and U.S. District Judge Henry E. Hudson. That case, too, may some day work its way to the Supreme Court.

The case involves the only individual named an "enemy combatant" who is currently being held by the military within the U.S. -- Ali Saleh Kahlah Al-Marri, a Qatari national who is in the country legally on a student visa. He was taken prisoner at his home in Peoria, Ill., on Dec. 12, 2001, as a potential witness in a federal investigation of the Sept. 11, 2001, terrorist attacks. He had entered the U.S. on Sept. 10. He was later declared an "enemy combatant," and has been held at the U.S. Navy brig in Charleston, S.C., since mid-2003. He currently faces no criminal charges. The government is seeking dismissal of his habeas challenge, relying upon the MCA.

Because he is being held within the U.S., and was legally in the U.S., his situation is different from that of the detainees involved in the D.C. Circuit's Feb. 20 ruling upholding the withdrawal of habeas rights. The D.C. Circuit case only involved individuals held at Guantanamo Bay, Cuba, who had never been in the U.S., and had no ties here. Those were key factors in the D.C. Circuit's ruling that the Guantanamo detainees have no constitutional rights, and thus could not claim that the MCA's withdrawal of habeas was an unconstitutional suspension of the writ of habeas corpus.

The government has argued in Al-Marri's case in the Fourth Circuit that MCA's habeas withdrawal applies not only to Guantanamo detainees, but to any detainee who has been in U.S. custody since Sept. 11, 2001.. Moreover, it contended, Congress had the authority under the Constitution to suspend the writ as to individuals like Al-Marri. He can challenge his detention in the D.C. Circuit under the DTA process, the government has argued.

(3) D.C. Circuit Court

This Court is heaviliy involved now in detainees' cases, and the list of cases there is steadily building up. As of now, some 45 detainees have filed appeals under the Detainee Treatment Act, challenging rulings on their detention by military Combatant Status Review Tribunals. More are expected. The Court so far has held no hearings on any of the merits of the challenges, but is scheduled to hold a 40-minute hearing next Tuesday starting at 9:30 a.m. on a variety of preliminary but crucial issues about how DTA cases are to proceed in that Court. These cases have stirred a major public controversy over the scope of detainees' access to their lawyers.

The cases up Tuesday are Bismullah v. Gates (Circuit docket 06-1197) and Parhat v. Gates (06-1397).

The Circuit Court has a variety of other cases before it, including several involving attempts to block the government from transferring detainees out of the Guantanamo prison to other countries, where some detainees fear persecution or even torture.

In addition, the Circuit Court has reached somewhat conflicting results on two cases involving U.S. citizens who are being held in Iraq by the U.S. military, and are challenging detention by U.S. forces and plans to hand them over to Iraqi authorities for criminal prosecution or sentence. Those cases are Omar v. Harvey (06-5126) and Munaf v. Geren (06-5324). The Circuit Coiurt is considering a government request for rehearing en banc in Omar, and on May 9 stayed its ruling in Munaf while that citizen-detainee, Mohammad Munaf, pursues an appeal to the Supreme Court.

So far, the Circuit Court has not put into effect formally (that is, has not issued its mandate) in the Boumediene and Al Odah cases, which it decided on Feb. 20 and which the Supreme Court refused to hear on April 2. The detainees' lawyers have asked the Court to withhold that mandate's issuance, because they are hoping to avert an early dismissal of their earlier habeas cases in U.S. District Court; they want those cases nominally kept alive until after the Supreme Court -- not lower courts -- has a chance to rule on the habeas-stripping provision of the MCA. The government has opposed delay in issuing the mandate, saying the detainees' lawyers simply want to continue litigating cases in District Court that should now be dismissed.

The Circuit Court also has before it the Hamdan case (Circuit docket 07-5042) that the Supreme Court declined to hear on April 30. It has asked both sides to file briefs by June 8 on what steps should be taken next with that case. It is an appeal from a District Court ruling dismissing Hamdan's habeas plea under the MCA.

(4) U.S. District Courts, Washington, D.C.

Most of the judges on these District Courts have pending before them habeas cases filed by detainees, some as long ago as five years. Some of the judges have begun dismissing them under the MCA, but detainees' lawyers have been asking them to reconsider, in view of the fact that the Circuit Court has not yet issued its mandate in the underlying cases.

The government, not waiting for the Circuit mandate to issue in the cases decided there, on April 19 filed motions in some 240 cases in District Court involving about 300 detainees to go ahead and dismiss them under the MCA. The detainees' lawyers are opposing those motions, and urging the District judges to keep the cases on hold until the Supreme Court gets back into the fray with a review of the MCA's validity.

Part II
The D.C. Circuit -- to the Fore

Now that the Supreme Court has opted -- for the time being, at least -- to withdraw from the center of the ongoing controversy over the legal rights of individuals captured in the "war-on-terrorism," the D.C. Circuit Court becomes the primary focus of activity, and it will remain in that prominent position for the next few months, at least. It has so many detainee cases already on its docket, with others coming, that Court aides have grown concerned about how all will be handled. Out of the welter of activity, however, are likely to come significant rulings that will set the stage for new appeals to the Supreme Court.

This heightened activity moves into public view this morning, May 15. Chief Circuit Judge Douglas H. Ginsburg and Circuit Judges Karen LeCraft Henderson and Judith W. Rogers will take to the bench for a hearing that is scheduled to last only 40 minutes, but has major potential for shaping the Circuit Court's work on detainees in coming weeks and months.

The dispute before the Circuit Court now is nothing less than a fundamental disagreement over whether that Court will make a searching inquiry into detention orders of the military, probing deeply into what detention panels considered (or left out), based on an entirely new and potentially much broader record, or, instead, will make only a far more limited assessment of the military panels' conclusions based only on the record such panels considered.

The cases involve an Afghan, Haji Bismullah (his case is Bismullah v. Gates, Circuit docket 06-1197), and seven members of a persecuted Muslim Chinese minority, the Uighurs, with the lead petitioner Huzaifa Parhat (their case is Parhat, et al. v. Gates, 06-1397), but the outcome will affect the legal futures of scores, even hundreds, of detainees. As government lawyers said in one of their filings, "the ruling in the present cases is likely to provide guidance for all cases filed under...the Detainee Treatment Act."

The Bismullah and Parhat cases are unusual ones for a federal Circuit Court to be handling. They are not appeals from a prior District Court ruling, and they are not appeals from a federal agency decision. Rather, they are new cases that, under the DTA, can only be filed in the D.C. Circuit Court, with the sole task of the Court to pass upon findings by U.S. military "Combatant Status Review Tribunals" that determine whether an individual is properly detained as an "enemy combatant." An individual so classified must remain a prisoner, unless the military opts to send them to another country.

(CSRTs were set up by the Pentagon at Guantanamo Bay after the Supreme Court ruling in Hamdi v. Rumsfeld in 2004 that, while the military may take terrorism suspects into custody in combat zones, it must provide a neutral decisionmaker to weigh their continued or prolonged detention. Congress has never written a law controlling the CSRTs, leaving those details to the Pentagon. But Congress has recognized such panels in setting up a system in the D.C. Circuit for review of their findings.)

In its review of CSRT findings, the Circuit Court will be fashioning its own procedural path for litigating DTA cases; the Act does not spell out procedures for that review. The Act says that the Circuit Court must weigh the status findings to see if they were "consistent with the standards and procedures" the Pentagon has written for the CSRTs, plus issues of legality under the Constitution and U.S. laws "to the extent [they] are applicable." (Since the D.C. Circuit Court, in a Feb. 20 ruling against the detainees in their challenges to the loss of habeas rights, has ruled that those at Guantanamo have no constitutional rights, it is unclear at this stage whether the detainees have any constitutional claims to raise about the CSRT process.)

Each of the eight individuals involved in these two cases has raised a variety of challenges to their original capture and their continued detention at Guantanamo Bay, Cuba. Bismullah has been there since soon after he was captured in Afghanistan in 2003; the Uighurs have been at Guantanamo longer, soon after their capture in Pakistan in December 2001. The Circuit Court, however, has ordered their attorneys not to file any written arguments on the merits of those legal claims; this opening proceeding is about procedural questions only, though they are questions of considerable moment nonetheless.

Bismullah contends that he has never been an "enemy combatant," contrary to a finding by a military CSRT. He contends that his arrest was based on a false accusation that he was passing information on U.S. troop movements to the Taliban regime in Pakistan -- assertions that the government disputes. The Uighurs contend that they fled to Afghanistan to escape oppression in China, and never fought against U.S. or allied forces. After they made their way to Pakistan, they were captured by Pakistani officials; they contend that those officials sold them to the U.S. military for a bounty -- assertions that the government disputes.

As the three-judge Circuit Court was preparing for next week's hearing, the shape of the issues it will be considering changed. On Friday, the government filed a series of documents on changes in positions it had taken earlier in the cases. The government would need the Court's permission to make one of the changes. Lawyers for detainees privately claimed that these were last-minute switches seeking to bolster the government's case, but they had not yet formally replied in court.

Originally, the Court had allotted only 15 minutes for each side's oral argument; the detainees' lawyers asked for more time, but the Court agreed only to add 5 minutes to each side's time.

The Bismullah and Parhat cases do not address the detainees' challenges to the legality of the Combatant Status Review Tribunals, but conflicts between their lawyers and government counsel have produced an abundance of controversy about how to litigate cases under the Detainee Treatment Act. The deepest conflicts have arisen over two issues: lawyers' access to the detainees at Guantanamo, to prepare to represent their clients in the DTA process, and detainees' lawyers access to classified information considered by CSRT panels.

Those attending oral argument will be hearing a good deal about "protective orders." As the detainees' lawyers put it in one of their filings: "All parties agree that a protective order is necessary."

Since much of the military's information about detainees, and the role that information plays in military judgments that they are "enemy combatants," is classified, the detainees' habeas cases and now the DTA reviews have always involved the felt need for procedures on access and limits on distribution of this information outside military circles -- most especially, to civilian lawyers for the detainees. Civilian lawyers have had to obtain security clearances in order to have any access to this information, and protective orders previously issued in District Courts have restricted what they must do with such information.

Within the scope of protective orders also is the question of lawyers' access to meet with their clients in person at Guatnanamo Bay, and the confidentiality of their lawyer-client exchanges.

The military leaders at Guantanamo and in the Pentagon hierarchy have long been uncomfortable with the impact, as they see it, on the discipline and security of the prison camp of having lawyers meeting with detainees. With the prison set up in Guantanamo specifically to avoid getting into legal complications over the detainees' fate, but with the Supreme Court having frustrated that goal, at least in part, the military has struggled to adapt to the requirements of legal representation.

The problem, according to military officials, began shortly after a federal judge in a series of detainee cases had issued a "protective order" giving detainees' lawyers access to classified materials and access to their clients. "Almost immediately," the government has told the Circuit Court in a filing, "serious problems and disagreements arose over the implementation" of that order." In addition," it went on, "conduct by private attorneys involving mail and visits to the military base at Guantanamo resulted in situations threatening the safety and security of Guantanamo military personnel and detainees as a result of inadequacies in the protective order."

The complaints have only grown louder in recent months, and some Pentagon officials mounted public criticism of lawyers, accusing them of being a major part of the problem of deteriorating security at the camp. Detainees' lawyers have rejected the complaints about their role and their activities at the prison base, and have accused the military of seeking to curtail their opportunity to represent their clients, impairing or even destroying clients' trust in their lawyers.

When the first DTA case arrived at the Circuit Court, both sides suggested that that Court adopt its own "protective order." The detainees' lawyers asked for the same provisions as the federal judge had provided in the order so resented by the military. The Justice Department proposed a new order, with significant changes. That dispute will be a central focus of Tuesday's argument. But there are other procedural conflicts that also will get aired.

Here are the specifics of the main disputes:

(1) Lawyers' access to clients in the Guantanamo Bay prison camp

The original "protective order" issued in District Court put no limit on the number of visits a civilian lawyer could have with a detainee client at Guantanamo. The judge had concluded that it was "simply impossible" for detainees "to grapple with the complexities of a foreign legal system and present their claims [in court] without legal representation." The attorneys have argued repeatedly, as they now do in the Circuit Court, that "only through client visits" can counsel learn facts about the detainees and how they are faring in the CSRT process, and develop and maintain trust with their clients.

The government had proposed that the Circuit Court limit lawyers' access to their clients at Guantanamo to three visits, throughout the complete DTA review process. These visits would be allowed for any lawyer for a client who had signed a document naming that lawyer as his legal representative for DTA proceedings. Since the Circuit Court will only be engaging in "administrative review" of the record made before the CSRT, the government argued, three visits should be sufficient.

This three-visit limit has stirred a wide array of protests by lawyers' organizations; indeed, several of them filed an amicus brief in the Bismullah and Parhat cases, strenuously protesting this provision. The Association of the Bar of the City of New York, outside of court, wrote to Attorney General Alberto Gonzales, asking him to withdraw that limit and other restrictions on counsel access and activity at Guantanamo, saying those provisions "would pose novel and onerous intrusions on the attorney-client representation in any circumstance. At Guantanamo, they would have the practical effect of thwarting effective representation and precluding any adequate judicial process."

On Friday, that aspect of the controversy appeared to have changed markedly. The Justice Department filed a revision of that part of the protective order, striking out the limit to three client visits. It said, however, that all other parts of the order remained necessary as submitted. It will need the Court's permission to modify its proposal at this stage in the proceedings.

(2) Lawyers' right to gather evidence outside the CSRT record

Detainees' lawyers have urged the Court to assure them the opportunity to make "reasonable discovery" of information that would exist outside the record as it was made before the CSRT, for use in challenging CSRT decisions before the Circuit Court. It would not be a meaningful court review of the CSRT process, they have argued, if the Court could not look beyond the original record at added information that would test the basis for the "enemy combatant" findings.

The CSRT record, the lawyers contend, may not include all of the evidence that a CSRT panel considered, evidence that the panel did not consider, evidence about the reliability of the materials before the CSRT, and evidence to test whether the CSRT followed the required procedures.

The government argues that the DTA review should be strictly confined to the record. The DTA process, it says, is not as wide-ranging a review as habeas corpus would be; it is essentially only a review of an administrative body, and such judicial review long has been confined to the record developed by such a body. "A strong showing of bad faith must be presented before this Court will look behind an agency's compilation of the record," the government has told the Court. "Such a showing has not been made here."

In another of the government's new filings on May 11, it informed the Court that the Pentagon had written new procedures to allow detainees to offer "new evidence" beyond what was in the CSRT record. That evidence, however, would not become a part of the CSRT record being reviewed by the Circuit Court in the DTA process; rather, it would have to be sent to Pentagon headquarters, where officials would decide whether it is significant enough to call for a new proceeding before a CSRT. It is unclear how that change would affect the way the Circuit Court reacts to the detainees' plea to get information for DTA review beyond what was before a CSRT panel.

(3) Lawyers' access to classified information

For months, detainee lawyers have complained that CSRTs have refused to share with them classified information that was before a CSRT. They thus want their discovery requests to include the classified data that was in any way a part of the CSRT proceeding, and a wide array of official correspondence and diplomatic exchanges, and underlying documents that form the basis of the government designation of a detainee as an "enemy combatant."

They object to a proposal of the government to leave it to the discretion of government officials to decide whether detainees or their lawyers have access to "any classified information," and a suggestion that access to such secret material will be allowed only on a "need to know" basis. The government, under the proposal, would decide what information a detainee or lawyer "needs to know."

Government officials insist that, despite the strong complaints of detainees' lawyers of denial of access to classified information, very little actually has been withheld from them. Still, the government argues that it must be left with the discretion to protect vital national security information, so it must control access to such data.

(4) Use of a special master

Because of inevitable disputes over what information should be gathered for the DTA review process, the detainees' lawyers have suggested that the Circuit Court appoint a "special master" with the authority to resolve disputes over discovery, decide some factual disputes, and to hold hearings, perhaps on short notice, and hold conferences between the parties, to keep the cases moving.

The government says there is no need for such a new court officer to aid the DTA process. "These cases are standard administrative law matters that should not necessitate the assistance of a special master," the Justice Department said in one of its filings.

(5) Confidentiality of lawyer-client exchanges

Because of conditions inside the prison camp at Guantanamo, detainee lawyers have argued, trust between the detainees and their lawyers "is dying." They thus want provisions in a "protective order" that will assure confidentiality for genuine attorney-client exchanges. One of their fears, which they say has been realized in fact, is that detainees will come to believe that the lawyers are not working for them, but actually are working for the government.

The government, however, contends that it is running a prison at Guantanamo, for dangerous individuals who were involved in terrorism, and it must be able to monitor exchanges that may potentially expose classified information to detainees. It thus has proposed official review of exchanges between lawyers and detainee clients. The Pentagon would name a separate filtering team, working with Justice Department lawyers who are not a part of the Justice Department staff defending the CSRTs in the DTA process, to examine whether attorney-client mail involves attorney-client privileged material, and whether it involves classified information, and may share that with the Circuit Court to assure its protection. Only the Court could authorize its release for use in the DTA process.

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