updated 8/16/2004 6:04:11 PM ET 2004-08-16T22:04:11

The Justice Department asked a federal judge Monday to allow the government to monitor discussions between a dozen Kuwaiti terrorism suspects at the U.S. naval base at Guantanamo Bay, Cuba, and their lawyers, citing a heightened security risk.

The hearing before U.S. District Judge Colleen Kollar-Kotelly was aimed at spelling out the conditions under which the lawyers may advise the so-called enemy combatants after the Supreme Court ruled that the prisoners had a right to challenge their captivity in federal court.

The wider fight over whether the detainees are being properly held is yet to come. Monday’s hearing addressed only defense lawyers’ complaints over what they said were unacceptable limits.

‘Exceedingly dangerous’
Brian D. Boyle, a lawyer for the Justice Department, said allowing the conversations to go unmonitored would pose a national security risk if the lawyers intentionally or inadvertently disclosed classified information.

He said military intelligence indicated that the detainees might seek to use their attorneys to pass along dangerous information to family members.

“It’s exceedingly dangerous,” Boyle said. “The concern is the inadvertent release because we didn’t have the opportunity to monitor, we didn’t have the opportunity to judge.” The detainees’ lawyers “don’t have the intelligence training or the background to identify what type of information might be dangerous.”

His comments drew some skeptical questioning from Kollar-Kotelly, who wondered aloud whether government monitoring was too extreme to justify violating a client’s right to confidential communications.

Other options considered
Other measures, such as requiring the detainees’ lawyers to take detailed notes and obtain government permission before disclosing the information to third parties, might be a more reasonable solution, she said.

Thomas Wilner, who represents the 12 Kuwaitis, said he and other lawyers would abide by reasonable conditions to avoid the leak of classified information. Government monitoring through tape recording, however, would be too invasive, he said.

“Our goal simply is that we want to provide these people with effective representation and in a way that does not compromise national security,” Wilner said.

Nearly 600 men from more than 40 countries are being held on suspicion of links to al-Qaida or the fallen Taliban regime of Afghanistan. Some have been at the prison for more than two years, with little or no contact with the outside world.

The court hearing comes as the Defense Department holds a series of review hearings at Guantanamo Bay to evaluate the “enemy combatant” status of detainees and whether they should be freed.

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