I always thought that the idea of a military man facing a court martial and having a military defense attorney was some kind of sick joke. The joke got sicker a few months ago when,with much pride, the government announced it was going to provide the men held in Guantanamo Bay, Cuba for almost two years with the best justice the military could muster.
More than 600 men and teenagers were rounded up in Afghanistan and have been housed in cages in Cuba. They have been denied access to attorneys and have had few contacts with their families. Earlier this year Paul Wolfowitz was appointed Chief Judge and Lord High Executioner of the military "tribunals" that would try some of these hapless souls. We have heard nothing else about those trials, perhaps because the Pentagon has egg on its face with the mess it has made of Iraq. Not the cakewalk they planned–or did not plan.
We were told that the defenders in the Guantanamo military tribunals would be military lawyers who would work under an officer who himself bemoaned the fact that he did not get the prosecutor’s job. If they could afford it, Gitmo prisoners could hire American defense attorneys. But those attorneys would have to swear fealty to the Pentagon and understand that all contact with their clients would be monitored. And they would have a life-time gag order on ever talking about anything that they saw, did, or thought while involved in the tribunals. What competent, ethical lawyer would do that? Especially with the specter of being charged themselves, as was the fate of attorney Lynne Stewart.
Now, we are told that the chaplain that has been provided for the Muslim prisoners, Army Capt. Yousef Yee, has been spied on by the military for months. Yee has not yet been charged, but he has been moved to a military brig in South Carolina, a distinction he shares with "enemy combatants" Yasir Hamdi and Jose Padilla. Yee is alleged to have had in his possession "classified" documents about the detainees and Camp X-ray. Supposedly, his job was to teach fellow troops about Islam and counsel detainees. Sources say he may have counseled them not to "cooperate" with their interrogators.
But what does "counsel" mean? Attorney Lynne Stewart was charged with conspiring to commit acts of terror arising out of the relationship with her client, Abdel Rahmen. Rahmen was convicted of charges arising out of the 1993 World Trade Center bombings. Judge John Koeltl, federal judge in New York City, dismissed the terrorism charges against Stewart (two other charges remain), saying that she was doing what lawyers do–lawyers act as counselors, defenders, confidents, and, sometimes, friends.
A minister does similarly–though not in the context of the courts. A minister’s role is far more personal. But, like the confidential communications between lawyer and client that are protected by legal privilege against disclosure (that is, before Ashcroft got ahold of it and ripped it to shreds), confidential communications between an individual and a priest, minister, or cleric are likewise the subject of ancient legal protection. Though sometimes referred to as the "priest-penitent" privilege, it generally applies to all communications made in confidence to someone acting in a ministerial role in a church or other religious context. But this protection does not apply in the military, apparently. Or certainly not in Guantanamo. Or, at least, when the prisoners–and cleric–are Muslim.
Keep your eye on this case. It could be yet another front in the war on civil liberties. Today, a chaplain in Guantanamo. Tomorrow, your minister, cleric, priest, or rabbi.
ELAINE CASSEL practices law in Virginia and the District of Columbia, teachers law and psychology, and follows the Bush regime’s dismantling of the Constitution at Civil Liberties Watch. This article originally appeared on FindLaw’s Writ. She can be reached at: firstname.lastname@example.org