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Curb sought on counsel to detainees

US asks court to restrict talks with lawyers

WASHINGTON -- The US government is seeking to sharply restrict communication between defense lawyers and inmates at Guantanamo Bay prison, asserting that some lawyers have given inmates "inflammatory" material such as reports of abuses at Iraq's Abu Ghraib prison and news articles about terrorist attacks.

The government is seeking judicial approval for new rules that would allow defense lawyers only four visits with their clients, rather than the unlimited number now permitted; control the topics that can be discussed in such meetings; and restrict the types of information that can be exchanged between lawyers and detainees through the mail.

The government filed the new rules in August with the federal appeals court in Washington, D.C., which is currently reviewing them in connection with the case of a Guantanamo detainee. If the court agrees to the limitations, they are expected to be applied to future cases.

Since the first detainees were brought to Guantanamo Bay after the terrorist attacks of Sept. 11, 2001, the Bush administration has battled to keep information about them secret -- including their names -- and to prevent them from having access to defense lawyers.

But defense lawyers won the right to meet with detainees in 2004, when the Supreme Court ruled that about 450 men being held at the Cuban military base could challenge their detention in federal courts.

Last month, Congress passed a law taking away the right to challenge detention in federal court.

But under the law, detainees still have a right to appeal the US military's decision to classify them as "enemy combatants," determinations that are made by military officers at Guantanamo Bay who review the government's evidence and hear testimony from the detainees. Detainees have a right to a limited appeals process, during which they can ask a panel of federal judges in a Washington appeals court to review documents in their cases to determine whether the enemy combatant classification was a mistake.

The proposed new rules would restrict the legal representation for these challenges. It is unclear how they would affect the dozen or so detainees who are expected to be tried before military commissions.

Haji Bismullah , a former Afghan transportation official in the post-Taliban government, is among the first detainees to appeal his enemy combatant designation. Justice Department lawyers filed the proposed new rules governing access to defense attorneys in his case, and have refused to give his lawyers any information about him until they agree to the restrictions.

Justice Department attorneys argued in their filings that stricter rules are needed because some defense lawyers have abused the system by sending detainees news articles about terrorist attacks in London, Iraq, and Israel; by providing a book about abuses of detainees in Iraq's Abu Ghraib prison; and by giving a detainee a transcript of a speech given at a conference held by the human-rights group Amnesty International.

"The speech contained inflammatory information regarding current political events, as it contained information about ongoing efforts in the war on terror," Commander Patrick M. McCarthy , a top military lawyer at Guantanamo Bay, wrote in the filings. "Such information threatens the security of the camp, as it could incite violence among the detainees."

McCarthy also complained that one team of defense lawyers had asked a detainee questions about his case at the behest of the British Broadcasting Corp.

But Barbara Olshansky , a lawyer with the New-York-based Center for Constitutional Rights, a legal advocacy organization that coordinates the representation of Guantanamo Bay detainees, said none of the actions cited by the government amounts to violations of prison rules or threats to prison security.

"Leaving aside core American values like free speech, and whether reading something that is said at Amnesty [International] is going to damage national security, the accusations that they have leveled against us make me incredibly sad," she said. "People haven't been talking about classified stuff. Nothing classified has been leaked in the press. What is the basis of asking for something more onerous when the current rules are working?"

The current rules, which were the result of tough negotiations between defense lawyers and the government in 2004, require that attorneys obtain security clearance before they see classified evidence in a case. But the proposed rules state that in addition to security clearance, an attorney must "need to know" the information that is being sought, a determination that is made by the US government.

Under the current rules, the military must ask a judge for permission to make information off limits for an attorney to discuss with a client. But under the new rules, the military itself would have the power to declare information off limits, although defense lawyers could appeal that determination in court.

Under the current rules, legal mail is reviewed only to ensure that attorneys are not passing on physical contraband. Under the new rules, mail will be reviewed by a committee to screen out unnecessary information about the outside world.

Currently, there are no limits on the number of visits a lawyer can have with a detainee. But the new rules allow a lawyer appealing an enemy-combatant designation one initial visit and a maximum of three additional visits.

Justice Department attorney Robert Loeb said in legal filings that lawyers do not need many meetings to file an appeal.

The fight over limiting access to lawyers comes after President Bush transferred 14 terrorist suspects, including alleged Sept. 11 mastermind Khalid Sheikh Mohammed, to Guantanamo Bay from secret CIA facilities. Administration officials have expressed concern that information about those detainees -- and the conditions under which they were kept in secret prisons -- might leak out through defense attorneys.

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