Was Charge Leveled Against Military Lawyer to Justify New Guantanamo Inspection Policy?

Early last month, Air Force Capt. Michael Schwartz was summoned into the office of Rear Adm. David Woods, the new commander of Guantanamo, and was accused of “smuggling” into the detention facility an anti-Guantanamo pamphlet that featured the photographs of two Kuwaiti detainees, Fayiz al-Kandari and Fawzi al Odha.

Schwartz, a military attorney and a member of al-Kandari’s legal team, was taken aback.

He flatly denied that he or any other lawyer defending al-Kandari “smuggled” the pamphlet into Guantanamo [al Odha is represented by a civilian attorney but the detainee does not speak with him]. Schwartz told Woods that if he was being accused of committing a crime he wanted to speak with an attorney. Woods dismissed Schwartz and the issue was not raised again.

But then several weeks later, Woods issued an order that authorizes a review team to read all legal mail sent to detainees already charged with war crimes, which includes al-Kandari, and other prisoners who are likely to be prosecuted before military commissions to ensure the material they receive from their attorneys does not contain any “contraband,” such as the anti-Guantanamo pamphlet Schwartz was accused of smuggling into the facility.

A group that calls itself the International Anti-Guantanamo Coalition (IAGC), which is made up of Kuwaiti activists, produced the four-page pamphlet. Al-Kandari’s Kuwaiti-based attorney, Adel Abdulhadi, is a also a member of the IAGC. The organization was launched in November with a stated goal of shutting down Guantanamo and securing the release of al-Kandari and al Odha.

The pamphlet is written in Arabic. It contains photographs of the prison and a picture of the Statue of Liberty dressed in orange prison garb, the color detainees wore when they first arrived at the prison facility. Inside the pamphlet is a picture of Lt. Col. Barry Wingard, the lead attorney on al-Kandari’s defense team, who is quoted about his efforts to free al-Kandari and have him turned over to the custody of the Kuwaiti government. There are also photographs and statements from Kuwaiti government officials and al Odah’s father speaking about the need to shut down Guantanamo.

Wingard, a veteran of the Bosnian and Iraq wars, confirmed the allegation Woods leveled against Schwartz during an interview with Truthout. He said the prison commander never told Schwartz whether the pamphlet was found in al-Kandari’s or al Odah’s cell, but he “certainly implied it.”

Wingard said he described the pamphlet to al-Kandari during a recent visit to Guantanamo recently and al-Kandari denied ever having seen it.

“The first thing I said when I found out about this is ‘someone is planting shit’ and trying to pin it on the attorneys,” said Wingard. “To this date, neither Commander Woods nor anyone else from Joint Task Force-Guantanamo has extended the courtesy of addressing me in this matter and has not shared any conclusions of an investigation, if one was ever conducted.”

A Defense Department spokesman did not return calls or emails for comment.

Still, Wingard doesn’t understand how the pamphlet found its way to Guantanamo in the first place. He and Schwartz first laid eyes on it during a trip they took to Kuwait in November to meet with government officials there to discuss ways to try and “facilitate [al-Kandari's] release back to Kuwait’s state of the art rehabilitation center, built at the request of the Bush administration, which is currently vacant,” Wingard said.

“I saw the pamphlets for the first time as they were being unwrapped from cellophane in Kuwait during the first full week of November,” Wingard said. “We were in Kuwait for two weeks, from November 7 through November 21. My attorney was questioned about smuggling it into Guantanamo during the first few days of December. The pamphlet somehow got to Guantanamo before Capt. Schwartz did.”

Wingard said the pamphlet was first distributed to members of the Kuwaiti Parliament and passed out during a protest in front of the US Embassy in Kuwait on November 20 that attracted hundreds of people. He suspects the pamphlet made the rounds inside the embassy and was subsequently sent to Guantanamo by a US official or someone from “another government agency,” a euphemism used to describe the CIA.

“That’s the only explanation for how this document ended up at Guantanamo,” Wingard said. “When I heard about the incident with Capt. Schwartz I thought something is about to happen at Guantanamo. Why else would they plant a document I had just seen come from the printing press in Kuwait? Now I think we know. “

Wingard believes the issue surrounding the pamphlet is part of a larger effort orchestrated by the US government to sabotage his efforts to secure al-Kandari’s release from Guantanamo, whose petition for habeas corpus was denied two years ago.

Wingard said it started in late October, when Guantanamo officials began to conduct a “cursory review” of all of al-Kandari’s correspondence with him for reasons that are still unknown.

Then, three days before Wingard arrived in Kuwait last November, the Pentagon released to the media what Wingard characterized as a “propaganda video” that showed several detainees apparently enjoying a life of indefinite detention. One of the detainees in the video, he claims, is al-Kandari.

Still, it’s unclear whether the confrontation between Woods and Schwartz played any part in the Guantanamo commander’s decision to implement new and expanded rules authorizing the review of attorney-client communications.

At a pretrial hearing this week in the military commission of Abd Al-Rahim al-Nashiri, the alleged mastermind of the USS Cole, Navy Cmdr. Andrea Lockhart, a member of the team prosecuting the high-value detainee, told a military judge the reason Woods issued the order was because “material that was getting in, like Inspire magazine, that should not have been getting in.”

Inspire magazine was a slick English-language glossy that was produced by an arm of al-Qaeda and edited by Samir Khan, a Pakistani US citizen who was killed in a drone strike in Yemen last September along with Al-Qaeda in the Arabian Peninsula propagandist Anwar al-Awlaki, another US citizen who the US government placed on a kill list.

Lockhart did not disclose whether the issue of Inspire, first published in June 2010, was found inside a detainee’s cell or somewhere else on the prison grounds. Nor did she say whether Joint Task Force-Guantanamo, which operates the prison facility, launched an investigation to determine how the magazine was brought onto the island. However, Lockhart, like Woods, seemed to suggest a defense attorney was the likely suspect.

A Defense Department spokesman did not respond to emails or phone calls seeking answers to those queries either.

Richard Kammen, al-Nashiri’s chief civilian defense counsel, denied that the detainee was the recipient of Inspire.

Mail Review Originally Limited to High-Value Detainees

Woods’ December 27 order expanding the review of legal mail to a larger segment of the Guantanamo prison population in Guantanamo appears to have been sparked by an unknown incident that took place in early October at Camp 7, the top-secret facility where 14 high-value detainees are held, a month before al-Nashiri’s military commission got underway.

Several attorneys representing detainees in habeas corpus cases learned that month that Woods, who had just been named commander of Guantanamo in August, had ordered a search of the cells and that prison staff had been reading, reviewing and confiscating detainees’ legal mail.

The habeas corpus attorneys, all of who hold top-secret security clearance and operate under a separate set of rules related to the review of legal mail, immediately contacted Justice Department lawyers, objecting to what was then an unwritten policy implemented by Woods. The attorneys noted that his policy violated attorney-client privilege. One habeas attorney was assured by Justice Department that the review only applied to the high-value detainee camp and that his client, who is not a high-value detainee, would be spared.

In a statement provided to Truthout October 14, Lt. Col. Joseph Todd Breasseale, a Defense Department spokesman, explained that Woods “directed that a security search be undertaken of detainee cells and materials in Camp 7.”

“This security search is not in response to any particular security threat and does not involve detainees in other [Joint Task Force-Guantanamo] detention facilities,” Breasseale said at the time.

Nine lawyers representing al-Nashiri and other high-value detainees charged with war crimes responded to Woods’ new directive by sending a letter to William Lietzau, deputy secretary of defense for detainee affairs, demanding he order Woods to “cease and desist the seizure, opening, translating, reading and reviewing of attorney-client privileged communications.”

The legal mail issue then arose at the start of al-Nashiri’s tribunal in November. At that time, Navy Cmdr. Thomas Welsh, the senior legal official at Guantanamo, testified that the search of the high-value detainees’ legal mail was necessary so as to ensure it did not contain “incendiary” magazines, such as Inspire, and other material that could pose a security threat. Welsh did not provide further detail about the circumstances that ultimately led to the crackdown in Camp 7 in October.

But Chief Military Commissions Judge James Pohl ordered prison officials to stop reading al-Nashiri’s legal mail. A month later, just a few weeks after Woods accused Schwartz of smuggling the anti-Guantanamo pamphlet into the prison, Woods issued the order expanding the inspection of legal mail, originally limited to Camp 7, to include about 30 other detainees.

Wingard said, in the past, when he sent mail to al-Kandari at Guantanamo it was received by a Defense Department liaison who “printed it off and put it in sealed envelope which was then given to the government.”

“The government would then unseal the envelope in the presence of Fayiz and hand him the confidential mail,” he said.

Now, Woods order states that a team made up of former government lawyers, translators and Department of Defense and law enforcement officials—a privilege review team—under contract to the Pentagon, would conduct the review of the privileged attorney-client communications and it would be done outside the presence of the detainee. He said attorneys must agree to the new rules in writing in order to communicate with their clients. The policy has since been roundly criticized.

“As a lawyer, I believe that this flagrant violation affecting the privacy of attorney-client, is unconscionable and far below the standards that America once stood for,” said Abdulhadi, al-Kandari’s attorney in Kuwait.

The American Bar Association, in a letter sent to Secretary of Defense Leon Panetta, said the policy needs to be immediately reversed.

“The American justice system depends on the essential role of lawyers in counseling their clients,” wrote ABA President Wm. T. (Bill) Robinson III in a letter sent to Secretary of Defense Leon Panetta, urging that Woods’ order be reversed. “This includes providing zealous and effective counsel, even to those accused of heinous crimes against this nation and its people.”

On the heels of Woods’ December 27 order, Marine Col. Jeffrey Colwell, the Pentagon’s chief defense counsel for military commissions, directed military and civilian attorneys defending detainees before military commissions to immediately stop sending mail to the prisoners and not to comply with Woods’ order because it violates the attorney-client privilege and codes of professional conduct.

The issue threatens to derail the tribunals, which Congress and the Obama administration overhauled in 2009. Pohl, the chief military commissions judge, expects to resolve the matter within the next two weeks.

Guard, Attorney Singles Out Interrogators

If “incendiary” reading material was the true catalyst behind Woods’ order, then it’s likely the interrogators who work at Guantanamo are to blame, a former prison guard said.

“They are the only ones who would have the incentive or motive” to distribute a “magazine like Inspire,” said the former guard, who requested anonymity because he is still on active duty.

During interrogations, the former guard said interrogators, as a way of “building rapport with detainees,” would offer prisoners food, books, magazines, pornography, games, pictures, extra recreation time, and cigarettes.

“This has gone on since Guantanamo opened ten years ago,” the former guard said. “These are things the detainees are not supposed to have in their cells and it’s a major source of frustration for the guard force because it violates the standard operating procedure. The guard force follows the SOP and takes it seriously, but the interrogators break the rules in the SOP all the time without telling anyone. The interrogators run the show.”

The former guard said he recalls two incidents within the past couple of years to back up his claims and both involved interrogators allowing two detainees to hang pictures in their cells, which is prohibited, in exchange for their cooperation. One detainee was given a picture of his hometown and another detainee received a picture of his family.

When a guard walked through the prison block to conduct “shake downs of cells” and saw the photographs, they were confiscated and the guard wrote up a report that was sent to his commanding officer. The detainees, according to the former Guantanamo guard, then complained to their interrogators and the photographs were later returned.

Brent Mickum, a habeas corpus attorney who represents Abu Zubaydah, the first high-value detainee captured after 9/11, said he too believes interrogators are responsible for the distribution of magazines like Inspire.

“The idea that an attorney would take into Guantanamo a periodical or a document that he or she knew to be proscribed is outrageous,” said Mickum, who holds a top-secret security clearance. He and other habeas attorneys already operate under a strict protective order that requires all materials they mail and/or bring to the detainees they represent to first be reviewed and approved by a separate privilege review team based in Washington, DC. “No attorney in the 600 or so I have interacted with over the years would ever do such a thing. No attorney would take the chance of jeopardizing the arduous steps they had to go through to obtain security clearance so prisoners could be represented by defense counsel and risk it by bringing in Inspire magazine. The only way such a magazine or document would get to a prisoner is through an interrogator who was trying to reward him for providing intelligence.”

The former guard and two military intelligence officials said as of late 2011 as many as 300 interrogations per month were still taking place at Guantanamo. Wingard said al-Kandari was interrogated as recently as last July by someone believed to be an interrogator about his thoughts on “world politics and Osama Bin Laden’s death.”

Documents declassified and released by the Pentagon in two years ago to former Secretary of Defense Donald Rumsfeld show that in 2003 he said Guantanamo needed to be turned into a “long-term interrogation facility.”

As far as Woods' new order, Mickum said he's not surprised.

“We don’t write [Zubaydah] because we’re worried about the Guantanamo staff reading our mail,” Mickum said. “We’ve been working on the assumption for some time that they will and have already looked at our legal mail, regardless if there’s an order in place now allowing just that.”

Wingard said the “desired effect” of Woods’ order is to “taint the attorneys and harvest intelligence from us by reading our legal mail.”

“What’s astounding,” Wingard added, “is that we are military officers with top-secret security clearances and law licenses who go to war with your sons and daughters. What Commander Woods’ order essentially says is that ‘we don’t trust you or the legal system you are sworn to protect.’”

In the meantime, per Colwell's instructions, Wingard has not been sending mail to al-Kandari, who has been detained at Guantanamo for a decade, or Abdul Ghani, an Afghani Wingard also represents who has been held at the prison Guantanamo since 2003.

“I hope this gets resolved,” Wingard said. “But I doubt it. I’ve already instructed my clients to destroy everything I’ve sent to them.”