- Associated Press - Wednesday, January 18, 2012

FORT MEADE, Md. (AP) — A copy of a magazine published by an arm of al Qaeda made its way to a terror suspect at the Guantanamo Bay prison, leading to an inspection of cells and a contentious new policy requiring special review teams to examine correspondence between prisoners and attorneys, U.S. prosecutors said Wednesday.

Navy Cmdr. Andrea Lockhart told a military judge during a pre-trial hearing that a copy of Inspire magazine got into a cell. She provided no details on who received the magazine or how. But she said the breach showed that prior rules at the base governing mail review were not adequate. Yemen’s al Qaeda of the Arabian Peninsula launched the online, English-language magazine in 2010. An early issue contained tips to would-be militants about how to kill U.S. citizens.

Lockhart is part of the U.S. team prosecuting the case against Abd al-Rahim al-Nashiri, a Saudi national charged with orchestrating the attack in 2000 on the USS Cole that killed 17 sailors. Al-Nashiri, 47, is considered one of the most senior al Qaeda leaders. He has been held at the U.S. Naval Base in Guantanamo Bay, Cuba, since 2006 after spending several years held by the CIA in a series of secret prisons.

How mail between Guantanamo prisoners and their attorneys should be handled consumed several hours of the al-Nashiri’s pre-trial session on Tuesday and Wednesday. At issue is whether even a cursory examination of the legal correspondence violates the attorney-client privilege.

The dispute reflects the untested nature of this latest attempt to resume the military tribunals at Guantanamo. The prosecution of al-Nashiri is already underway and the U.S. is preparing to prosecute five other prisoners accused in the Sept. 11 attacks, yet defense lawyers and government prosecutors are still fighting to establish basic legal ground rules.

The military commission system has been revised by the Obama administration and Congress, which has refused to allow the administration to move prisoners from the American base in Cuba. The trial system is still sharply criticized by civil and human rights groups and defense lawyers who say the procedures favor the prosecution. Rick Kammen, a civilian attorney for al-Nashiri, called the military commissions a “second-class system of justice.”

“Just because you see people in suits and a judge doesn’t mean it’s a real trial,” Kammen told reporters after Tuesday’s session.

Al-Nashiri’s defense team, as well as the lawyers for other Guantanamo prisoners and the chief defense counsel for the military commissions, are opposed to the security review of legal mail, which was put in place last month by Navy Rear Adm. David Woods, the prison commander.

Army Col. James Pohl, the judge in al-Nashiri’s case, ordered the detention center in November to stop Guantanamo guards from reading mail between the prisoner and his lawyers. The judge’s order came after Woods authorized an inspection of detainee cells in October that included reading mail between prisoners and their attorneys.

In late December, Woods issued a new directive requiring legal mail to undergo a security review to ensure prisoners were not receiving prohibited materials, such as top-secret information or objects that might be fashioned into weapons.

The December order from Woods created a “privilege review team” independent of the prison staff that would include attorneys, law enforcement and intelligence experts who would examine legal communications between lawyers and their clients. The goal of the order, prison officials said, was to ensure safety and security on the base while preserving attorney-client privilege by having a group not under the prison’s command perform the mail review.

Wood testified on Tuesday that the privilege team is made up of contractors hired by the Pentagon’s intelligence directorate.

Al-Nashiri’s mail has not yet been examined by the team. Marine Col. Jeffrey Colwell, the chief defense counsel for the Guantanamo Bay tribunals, instructed attorneys not to follow Woods’ order. Colwell said last week that the rule does not adequately protect attorney-client privilege and violates codes of professional conduct.

But Woods testified that his order doesn’t allow team members to read mail. Their role, he said, is to perform a “plain sight review” of correspondence between attorneys and their clients to ensure the documents are marked with the proper stamps to ensure it is actually privileged information. If the material is not marked properly or there are obvious signs of a security risk or contraband, the mail is forwarded to higher authorities for review.

Al-Nashiri’s attorneys peppered Woods with questions about how team members could do their jobs without actually reading the information. The order creates situations in which the privilege team has no choice but to dig deeper into a document to understand what is in it, Navy Lt. Cmdr. Stephen Reyes said. Reyes also asked Woods why translators were needed on the team if no reading was required.

Woods deflected many of Reyes’ questions by saying that he does not have control over the privilege team contract. He also testified that he does not know who monitors the day-to-day activities of the team. “They do not work for me,” he said.

On Wednesday, Pohl directed the prosecution and defense to provide him with their proposals for reviewing mail in the Al-Nashiri case. A decision from Pohl is not expected for at least two weeks, however.

The Associated Press and other news organizations viewed the proceedings at Guantanamo Bay on a closed circuit telecast shown in a small theater at Fort Meade, a military base located between Washington and Baltimore.

Al-Nashiri has attended the proceedings on both days, but could be seen only intermittently due to the angle of the camera in the courtroom at Guantanamo. He wore a white prison uniform and sat next to his defense team. Defense officials said Al-Nashiri was not shackled during his hearing.


Associated Press writer Ben Fox in San Juan contributed to this report.

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