Let them be lawyers

October 22, 2004

WITH THE STICK of the Supreme Court's ruling in June, as well as a little basic logic, a District Court judge has poked holes in the U.S. military's gossamer argument that certain prisoners at Guantanamo Bay don't deserve confidential access to lawyers.

Now can we all go back to following the basic rules of law?

As U.S. District Judge Colleen Kollar-Kotelly pointed out in a decision Wednesday, those held incommunicado for more than two years, with no access to the outside world and unsure of why they are being held, cannot adequately represent themselves in court. They require attorneys, and attorneys come with a basic guarantee of confidentiality.

U.S. military officials wanted to make video and audio recordings of meetings between attorneys and certain prisoners, and see all their notes and correspondence, saying they feared that classified information might be passed into bad hands. It's not their first such desire: In a recent press visit to the base, reporters were told they would have to hand in their notebooks for "security clearance"; the brass quickly took that order back, rightly realizing that press freedom is constitutionally guaranteed.

Despite its apparent thinking to the contrary, the administration cannot decide whether prisoners should have access to attorneys. Yet the privacy of communication between attorneys and their clients is one of the oldest privileges in common law.

The government does not need to spy on inmates and their lawyers to protect the nation from future attack. For the three men singled out in this lawsuit as very dangerous, Judge Kollar-Kotelly in August offered one extreme compromise - that any civilian lawyers with such clients obtain security clearance and keep all communication confidential, even from coworkers, until it is cleared through the military. The lawyers in the case have agreed to those rules; the government has not.

Access to counsel and all that comes with it is just the first step for these men. As soon as possible, the government should lodge charges against them, or let them go.

As the district judge confirmed, the Supreme Court's June decision that prisoners could challenge their indefinite imprisonment in Guantanamo in federal court wasn't creating a new precedent. It merely reaffirmed the same style of justice - and lawyering - for all.

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