New Attorney-Client-like Confidentiality in DRBs in Afghanistan

The Obama Administration has taken a step to have official representatives for U.S.-held prisoners in Afghanistan act more like lawyers, according to a new court filing. As a result of a secret rule change implemented last year, exchanges between detainees and U.S. military officers who represent them in connection with review board proceedings at Bagram Air Base are now considered confidential. So-called "personal representatives" of the detainees are instructed "not to disclose information detrimental to the detainee's case that was obtained through communications between the detainee and the personal representative," according to a newly-disclosed July 2010 memo revising procedures for detainee reviews at Bagram. The memo was originally classified "secret" but was apparently declassified before being filed in court Thursday in cases seeking court review of the detentions of several prisoners at Bagram. Such habeas cases, if permitted to proceed, would allow attorneys to represent prisoners at Bagram just as lawyers represent Guantanamo detainees. Last year, an appeals court rejected arguments to permit habeas cases at Bagram, but told a lower court it could reconsider the issue as facts on the ground changed. The newly released memo says a detainee's representative is obligated to reveal "disclosures necessary to prevent property damage, serious bodily harm or death." Representatives are "obligated to disclose detainee conduct that is fraudulent, and may refuse to offer evidence that he firmly believes is false," according to the directive. "This does track the rules for lawyers, generally," said Stephen Gillers, a professor of legal ethics at New York University. There are no uniform rules in the U.S., but model rules produced by the American Bar Association contain parallel exceptions. Gillers said one difference is that lawyers generally are only permitted to disclose fraud they played a role in rather than something they discover. In a legal brief Thursday, the Justice Department argued that the confidentiality rules improve upon the rules for Combatant Status Review Tribunals the Bush administration set up for prisoners at Guantanamo Bay. "Whereas the CSRT personal representative had no confidential relationship with the detainee and there was no requirement that he act and advocate for the detainee, the [Detainee Review Board] personal representative is bound by a non-disclosure policy, which prohibits him from disclosing information 'detrimental to the detainee’s case that was obtained through communications with the detainee' as well as 'adverse information discovered by the personal representative’s independent investigatory efforts,'" Justice Department lawyers said.