[JURIST] The new policy that allows government officials to monitor Guantanamo Bay [JURIST backgrounder] prisoners’ mail dominated the opening day of pretrial hearings for Guantanamo inmate and alleged USS Cole bomber Abd al-Rahim al-Nashiri [NYT profile; JURIST news archive] on Tuesday. The new policy allows members of a privileged review team to conduct a “plain-view review” of written communications [DOD press release] not marked as protected attorney-client information, such review being designed to ensure the correspondence does not include physical or information contraband such as maps of the detention facility. Navy Rear Adm. David Woods, commander of the Joint Task Force Guantanamo (JTF-GTMO), defended the policy, testifying that it balances his responsibilities to facilitate attorney-client communication while also ensuring security, safety, guard protection and good order at the facility. Specifically Woods testified that the reviewers do not actually read correspondence [CNN report], but simply look at mail to make sure each page is properly marked as privileged. This procedure then allows guards who monitor the inmates’ cells to search the plastic bins reserved for legal paperwork and correspondence allowed in detainee living spaces, letting the guards ignore privileged papers and focus on contraband, which has been found in the “legal bins” in the past. Woods acknowledged that the policy depends on the professionalism of the review team, which is composed of former intelligence analysts, attorneys or law enforcement agents, but pointed out that each member is a civilian contractor who must sign a non-disclosure agreement that bars them from sharing any information, and that their contract does not fall under Woods’ purview. The prosecution for the hearing called the issue and testimony irrelevant to the case because al Nashiri has not been subject to mail searches during his detainment at Guantanamo.

Lawyers for detainees at Guantanamo have previously raised concerns with practices used at the prison. Last November, lawyers complained specifically about the infringement on attorney-client privilege [JURIST report] in a letter directed to the attention of the Deputy Secretary of Defense for Detainee Affairs. The attorneys alleged that those working with the JTF-GTMO seize, open, interpret, read and review attorney-client privileged communications, actions which the attorneys argued are unlawful. Also in November J. Wells Dixon, Senior Staff Attorney for the Guantanamo Global Justice Initiative at the Center for Constitutional Rights, wrote that there is a systematic dysfunction within the bureaucracy of the Guantanamo Bay detention facility that impacts the capability of attorneys to adequately represent their clients: “Having traveled to Guantanamo numerous times over many years to meet with men detained there, it comes as no surprise to me that someone, somewhere in the bureaucracy of Guantanamo, ordered a disruptive and ultimately needless examination of legal papers and correspondence kept by detainees, including materials clearly marked as privileged.” This month marks the tenth anniversary of detention operations at Guantanamo Bay [JURIST report].