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Case 1:05-cv-01429-UNA Document 45-2 Filed 07/19/2006 Page 1 of 3


Case 1:05-cv-01429-UNA Document 45-2 Filed 07/19/2006 Page 2 of 3

July 11, 2006

The Honorable Arlen Specter
U.S. Senate Committee on the Judiciary
Washington, D.C. 20510

The Honorable Patrick Leahy
Ranking Democratic Member
U.S. Senate Committee on the Judiciary
Washington, D.C. 20510

Dear Chairman Specter and Senator Leahy:

As the Senate moves forward with its consideration of legislation authorizing military
commissions, I write on behalf of the American Bar Association ("ABA") to express our
views on this issue. The ABA applauds your effort to hold hearings exploring the issues
surrounding the authorization of military commissions in light of the recent United States
Supreme Court decision in Hamdan v. Rumsfeld.

Since February 2002, we have urged the President and the Congress to ensure that any
military commissions be required to comply with the rules of the Uniform Code of Military
Justice (UCMJ), to provide the rights afforded in courts-martial, and to fully comply with our
international treaty obligations. While the Guantanamo military commission system, as
presently constituted, is inherently flawed, our nation has the finest military justice system in
the world, and we therefore urge the Congress to insure that any legislation regarding
military commissions rely to the greatest extent possible on the respected and tested
framework of the UCMJ.

In August 2003, the ABA adopted a policy calling upon the Congress and the Executive
Branch to insure that all defendants in any military commission trials receive the zealous and
effective assistance of counsel. We endorsed certain basic principles for the conduct of
military commission trials, including that the “government should not monitor privileged
conversations, or interfere with confidential communications, between any defense counsel
and client.”

We are therefore deeply troubled by the revelations contained in the July 7, 2006 Department
of Justice filing in the Guantanamo habeas cases pending in the United States District Court
or the District of Columbia that military investigators, in the course of investigating the
deaths of three Guantanamo detainees in June, seized from Guantanamo detainees
more than a half-ton of documents, including a large number of highly privileged
attorney-client communications.

Case 1:05-cv-01429-UNA Document 45-2 Filed 07/19/2006 Page 3 of 3

Page Two
July 11, 2006

While we respect the right of the military to conduct its investigation, it appears that this
seizure of privileged documents was conducted without advance judicial approval or
supervision and without any opportunity for counsel to be heard, and indeed, was not even
disclosed to a court or counsel until a month after the fact. The fact that procedures were not
in place to prevent such wholesale invasion of the attorney-client privilege is most disturbing.

As you know, almost all of the civilian lawyers involved in the Guantanamo military
commission and habeas cases have appeared pro bono at great personal and financial
sacrifice and under difficult conditions. Many have complained to the ABA that their efforts
to provide effective assistance of counsel have been hampered by rules, policies, and tactics
of the Departments of Defense and Justice. It has been a challenge for these dedicated
lawyers to gain the trust of their clients, and the recent seizure of these highly privileged
communications could chill the attorney-client relationship and shatter any confidence the
detainees might have had in the sanctity of the attorney-client privilege.

We therefore respectfully ask the Committee to request that the Inspectors General for the
Department of Defense and the Justice Department investigate this matter promptly and
make their findings and conclusions public in a report to the Committee. We also ask the
Committee to request that the Office of Professional Responsibility in the Department of
Justice determine how the government's lawyers permitted this potentially serious breach to
occur, and to take appropriate action. These inquiries will help maintain public confidence in
our system of justice.

These issues may well merit separate oversight hearings, but as the Senate Judiciary
Committee now explores legislation regarding the establishment of future military tribunals,
the ABA urges you to be particularly sensitive to the need to preserve and protect the
attorney-client privilege against any intrusion into communications between detainees and
their lawyers.

Thank you for your consideration of these issues.


Michael S. Greco

cc: Members of the Senate Committee on the Judiciary