The military lawyers for the 9/11 suspects, in what is believed to be an unprecedented legal move, are accusing the Defense Department of sanctioning “practices that are unlawful” that will “effectively stall this case.”
In a letter to the head of detainee affairs obtained by Fox News, military attorneys for the 9/11 suspects, including the self-described architect of the attacks, Khalid Sheikh Mohammed, as well as lawyers for other high-value detainees, claim that correspondence between the detainees and their attorneys is routinely opened, read and even confiscated by Defense Department officials.
“The policies and practices are unlawful and will effectively stall this case: these procedures violate attorney-client confidentiality privilege,” the letter says. And in what appears to be a thinly veiled critique of broader policy, the lawyers write, “A failure to act on this concern belies any claim to transparency and fairness.”
In the three-page letter, signed by nine military attorneys, Defense Department officials are scolded for allegedly ignoring rules laid out by the military commissions. The 9/11 case was first designated for a federal court trial in New York City two years ago, but it was ultimately sent back to the commissions by Attorney General Eric Holder in April after opposition by New York City officials, the public and some members of Congress.
More than a decade after the murder of nearly 3,000 Americans in the 9/11 attacks, there is still no public timetable for an arraignment at the Guantanamo Bay facility.
“The Military Commission Rules of Evidence, in Rule 502, specifically protect attorney-client privileged material from disclosure to anyone aside from the client and his legal team,” the lawyers state. While claiming the correspondence is not classified, the attorneys add that “Violations of attorney-client privilege are acutely egregious in the context of death penalty litigation, where the Supreme Court has long held that heightened Due Process applies.”
The letter says the lawyers first sought redress through the office that oversees the detention operation at the Navy base at Guantanamo – before taking the complaint to the senior Defense Department official responsible for detainee affairs.
“The problems with legal materials were brought to your direct attention more than five months ago, and again two weeks ago when you were copied on correspondence to (base officials)," it says. "We have received no response to any of our letters.”
A source familiar with the military lawyers' complaints told Fox News it was not about the 9/11 suspects mail because “nobody cares about the security of Khalid Sheikh Mohammed’s mail,” but the dispute framed a much larger issue -- in this case, the sanctity of a lawyer’s relationship with a client, even if the clients are some of the most hated men on the planet.
The lawyers complain that "counsel are in the untenable position of having either to violate professional ethical standards in order to communicate with our clients or cease communicating with our clients.”
Fox News is told that if there is no resolution, the military lawyers are laying the groundwork for a federal court action. The letter hints at that prospect: “Absent a meaningful response and the institution of remedies, the ongoing concern will be litigated to the fullest extent.”
While not familiar with the specifics of the complaint, a former Defense Department official told Fox News that there can be sound security reasons for the review of materials. Fox News sought comment from the media office responsible for the undersecretary of detainee affairs. The Defense Department media office was sent a copy of the letter, but there was no immediate response.
Fox News chief intelligence correspondent Catherine Herridge's bestselling book "The Next Wave: On the Hunt for al Qaeda's American Recruits," published by Crown, draws on her reporting for Fox News into the first American on the CIA’s kill or capture list, his new generation of recruits al Qaeda 2.0 and its takes the reader inside the attempt to prosecute the 9/11case.