Whenever a motion is made for a bill of particulars in the Southern District of New York, the government’s response is the same: It would unduly prejudice the government to be required to disclose allegations of fact that would enable the defendant to know the specific conduct that forms the basis of the charge against him.  And the court agrees.

You know, telling the defense what exactly it says the defendant did that was criminal would indeed prejudice the government. It would give the defense half a chance to prepare its defense. Well, maybe only a third of a chance, but at least a chance.  Level the playing field, if only a bit?  Prejudice.

But when it comes to prosecuting “enemy combatants,” the ante is upped.  Way upped. Not only is the risk of individual failure at stake, but the reputation of a government that’s come to depend on a population who believes, with their every breath, that it can be trusted to ignore every safeguard around which are concept of a legal system is based, and still be fair.  The integrity of the outcome must be trusted, and yet the conviction of those denied their rights must be assured. 

What to do?  It’s not enough to deny the defense access to the evidence against the defendant. No, not the puny refusal to provide a bill of particulars, but wholesale denial of “state secrets.”  Still, a criminal defense lawyer gets used to thinking fast, working on the fly.  We don’t enjoy the luxury of depositions, document demands, the absolute necessities of civil practice where lawyers whine about not being allowed to use a proctoscope at least five years in advance of trial.  We prepare for surprises because we have no choice.  We deal with the unknowns, because that’s our job.

So the Department of Defense, because enemy combatants aren’t entitled to justice, came up with a new policy because the idea of allowing the enemy any chance of prevailing was too much to bear.  It’s revealed in ABA President  Bill Robinson’s letter to Secretary of Defense Leon Panetta.

We are therefore deeply troubled to learn that a new policy at Guantanamo Bay appears to violate both the letter and spirit of the attorney-client privilege. Lawyers for detainees report that their highly privileged attorney-client communications are being intercepted and reviewed by the U.S. government. It has even been suggested that content from these communications may be reaching the prosecution team.

Nice, right?  Robinson explains that the government’s need to violate confidentiality is purportedly justified by security considerations.

A security rationale has been provided in response to the lawyers’ objections; however, there is no information about any security violation or incident that prompted the recent change in policy. It is thus not surprising for Presiding Judge Pohl in the Military Commission trial of Mr. al Nashiri to conclude (transcript page 168) that the government screening procedures employed during baseline review in that proceeding “infringes on the attorney-client privilege.”

Infringes doesn’t seem quite adequate. Rapes and pillages confidentiality strikes me as a more apt description.  What this security rationale might be is unclear.  Do they fear that their Gitmo detainees are hiding secret cellphones on the north side of their sphincter, ready to call in air strikes via flying camels upon disclosure of top secret info from half a decade ago?

While Robinson’s stand is appreciated, in light of the alternative of the ABA being deeply engaged with more critical issues of the day, whether the iPad is mandatory for trial work and making sure Duncan Law School doesn’t get close enough to accreditation to sully the pool of unemployed lawyers, his expectations of the government are rather low.

We therefore urge you to take prompt action to immediately rescind this policy and restore the confidentiality of communications between lawyers and Guantanamo detainees. We respectfully request that the Inspectors General for the Department of Defense and the Justice Department investigate this matter and make their findings and conclusions public in a report. Finally, we request that the Office of Professional Responsibility in the Department of Justice determine how this serious breach occurred and take appropriate action to prevent any future violations of the attorney-client privilege. We believe that these actions will maintain public confidence and reaffirm the integrity of our justice system.

Thank you for your consideration of these issues.

The demonstrative appreciation of Panetta’s consideration is a particularly nice touch.  After all, one should never “urge” the government to provide minimal constitutional rights without showing due deference to important appointed officials.  He is, obviously, prevailing upon noblesse oblige to obtain a concession from the big boys. 

Not to seem completely vulgar and unappreciative, it might have been a good idea to demand that the government maintain the confidentiality of defense lawyers rather than beg for the government’s largesse.  Sure, the government is omnipotent in the eyes of the ABA and the powerful and important lawyers who end up getting the ABA President nod have spent their  careers being on committees to show that they’re worthy of being invited to cocktail parties thrown by people with official titles.  Nasty bottle-throwers never get invited to the really cool cocktail parties, or are handed titles of importance to list in their obituaries.

And it might also be worthwhile to question Robinson’s view that restoration of a wee bit of confidentiality isn’t all that’s needed to “maintain public confidence and reaffirm the integrity of our justice system.”  Until I read that, I hadn’t realized what a great job our government was doing in affirming the integrity of our justice system up until now.  And here’s I’ve laboring under the misimpression that Gitmo wasn’t the paradigm of excellence in the administration of justice. Boy, do I feel foolish.

But then, that could explain why I’m not the president of the ABA and Bill Robinson is.  Maybe my expectations are too high.  Maybe I’m just never satisfied.  Maybe I don’t get it when the government’s argument is that the playing field doesn’t favor it sufficiently.  Thank you, ABA and Bill Robinson, for standing up for the critical ability of defense lawyers to maintain some semblance of attorney-client privilege.  And hope you  enjoyed hanging out with Chief Judge Roberts and Fox News anchor Megyn Kelly.  Good times.