Aug. 16 (Bloomberg) -- A U.S. judge said she may let 14 suspected terrorists who are challenging their detention at Guantanamo Naval Base in Cuba talk to their lawyers without being overheard by military officials.

U.S. District Judge Colleen Kollar-Kotelly questioned Bush administration arguments that the conversations must be monitored to collect intelligence on possible future terror attacks and to stop detainees from sending coded messages to al-Qaeda comrades.

Government eavesdropping would make it impossible for lawyers to represent detainees challenging their imprisonment as enemy combatants, she said at a hearing in Washington. The hearing is the first since the U.S. Supreme Court ruled in June that more than 600 aliens at the U.S. Navy base in Cuba were entitled to court hearings.

``National security doesn't trump everything,'' Kollar- Kotelly said. She said she has a problem with ``abrogating'' the attorney-client privilege that ``is very important for the operation of our legal system.''

The Supreme Court ruling reversed a decision by Kollar- Kotelly who had said the detainees couldn't sue in U.S. courts to challenge their confinement. The Justice Department says the detainees don't have a right to legal counsel.

`Contemptuous' Argument

Still, the Bush administration said it would allow the detainees to consult with lawyers as long as the government can monitor the conversations and review notes that attorneys take.

``The government's arguments are simply contemptuous of the Supreme Court's opinion,'' said Thomas Wilner, a Washington lawyer representing 12 Kuwaiti prisoners at Guantanamo. Monitoring conversations ``would destroy'' the ``confidentiality of communications'' between lawyers and clients, he said.

Kollar-Kotelly proposed instead that the lawyers get Defense Department security clearances and sign a pledge not to disclose the contents of their conversations with detainees without permission of the Pentagon. That would give military authorities the chance to determine whether any of the exchanges are coded messages for comrades, she suggested.

Defense lawyers would also have to alert the Pentagon to any statements that were evidence of a future terrorist operation, the judge said. She said she based her proposal on suggestions from the lawyers for the 14 prisoners.

Government Concerns

The arrangement is unacceptable because the detainees ``would use conversations with their lawyers not for the purpose of preparing a factual defense but to further terrorist acts,'' said the Justice Department's Brian Boyle. The lawyers ``would have no way of identifying what the critical information is, what the coded messages are.''

Kollar-Kotelly told Boyle that the rules she is considering would ``keep the normal attorney-client privilege intact in this context and take care of your security concerns.''

Boyle said monitoring the conversations would help U.S. military authorities fight terrorism because ``there could be important intelligence insights derived from these conversations that could not be derived from interrogations.''

Kollar-Kotelly questioned the legality of forcing defense lawyers to gather intelligence for the government.

Any procedures Kollar-Kotelly adopts wouldn't control other judges hearing cases from Guantanamo, though her decision might help guide them, said Jared Goldstein, a lawyer for the 12 Kuwaitis.

Pentagon Explanation

Kollar-Kotelly also demanded that that the Pentagon explain why it refused permission to lawyer Joseph Margulies to travel to Guantanamo to consult with his client, Mamdouh Habib, an Australian seized in Afghanistan in 2001.

Margulies said he received his security clearance and had agreed to interview Habib with military officials monitoring the conversation. Margulies said he wanted to make the trip soon to investigate allegations by the Pakistani foreign minister that, before being sent to Guantanamo, Habib had been turned over to Egypt where he was tortured.

Habib has been designated a candidate for a military tribunal in Guantanamo to determine whether he broke laws of war, Margulies said. Those proceedings are scheduled to begin next week in Guantanamo Bay, lawyers for both sides said.

To contact the reporter on this story: James Rowley in Washington at jarowley@bloomberg.net.

Last Updated: August 16, 2004 16:05 EDT