[IP] Overdue process
Begin forwarded message:
From: Brian Randell <Brian.Randell@xxxxxxxxxxxxxxx>
Date: August 29, 2004 5:38:28 AM EDT
To: dave@xxxxxxxxxx
Subject: Overdue process
Dave:
For IP if you wish.
Cheers
Brian
Overdue process
By Isabel Hilton
Isabel Hilton is a writer and broadcaster.
Published in the Financial Times: August 27 2004 20:47 | Last updated:
August 27 2004 20:47
Find this article at:
http://news.ft.com/cms/s/be3c294a-f65c-11d8-a879
-00000e2511c8,ft_acl=.html?uuid=be3c294a-f65c-11d8-a879
-00000e2511c8&ft_acl=
The preliminary hearings opened earlier this week in the first US
military tribunals since the second world war, held in a specially
constructed courtroom in Guantanamo Bay, Cuba. More than 700 men have
been imprisoned in Guantanamo since the camp opened for business in
early 2002. The four defendants in this week’s proceedings are the only
ones yet to be charged. They have the distinction of facing legal
proceedings so controversial that many eminent American and
international jurists consider them a stain on US justice. If the US
administration’s will prevails, they will benefit from none of the
safeguards that are considered essential to a fair trial in US courts.
They will have no right of appeal against any verdict to an independent
tribunal and, even if they are found not guilty, may still face
indefinite detention.
The one asset the four defendants do enjoy is the determination of a
group of defence lawyers who have fought for more than two years to
force the secret proceedings in Guantanamo into the open. If it were
not for those lawyers, and the notable victory they won in the US
Supreme Court in June, the defendants in Guantanamo this week would
have no recourse to any hearings beyond the restrictive military
tribunals they now face. The eventual outcome of that legal victory is
far from clear and the US administration already appears to be doing
its best to circumvent it. But the fact that it exists at all is
remarkable, for when this long fight for justice began, the lawyers
found themselves all but alone.
Last month, some 70 lawyers - an eclectic mix of radical campaigners,
human rights activists and members of well-heeled, high-profile firms -
gathered in New York to discuss strategy in the wake of the US Supreme
Court’s historic finding in the case of Rasul et al v. George W. Bush -
that prisoners in Guantanamo did have the right, despite the
president’s will, to challenge their detention in US courts. That
decision, handed down on June 28 by a majority of six to three, had
changed what two years ago had been a discouragingly hopeless cause
into one full of legal possibility. At the core of the meeting was a
group that had once been seen as a handful of legal pariahs. Now they
were beginning to look like a coalition that smart lawyers want to
join.
The man who had called them together, British lawyer Clive Stafford
Smith, has had a long training in heavy odds and unpopular causes.
Stafford Smith is a tall, rangy man in his late 40s whose close-cropped
hair is beginning to grey. He has devoted the past 20 years to fighting
death penalty cases in the American south. More than 900 men have been
executed in the US since 1984, the year that he began. Five of them
were his clients. Without his vigorous advocacy, the nearly 300
prisoners he has represented in the past two decades would, in all
likelihood, also be dead. Sixty per cent of them were eventually found
not guilty.
It is not the sort of work that makes you popular or rich. Stafford
Smith’s New Orleans organisation, Justice in Exile, pays all its
lawyers the same salary - $25,000 a year, recently raised from $18,000.
But repeated death penalty cases have developed in him two qualities
that are useful when fighting an unpromising cause: a conviction that
most death penalty cases are fuelled by hatred as much as by evidence,
and a belief that every defendant, no matter how unpopular or
unlikeable, deserves a fair hearing. He got involved, he says, because
Guantanamo made him angry. “Death penalty work is essentially standing
between those who hate and those who are hated,” he explains. “But at
least there are people who oppose the death penalty. This, nobody
opposed.” The Guantanamo prisoners were in a legal black hole.
There have been detentions in Guantanamo before: the US leased the 45
square miles of land from Cuba in 1903, ostensibly for use as a naval
coaling station. The lease recognised Cuba’s continuing sovereignty
over the base, but gave the US “complete jurisdiction and control”.
Since the Cuban revolution in 1959, Fidel Castro’s government has
wanted the base back and has refused to accept rental payments, but the
lease can only be terminated by mutual agreement - and the US will not
agree. It has never been used as a coaling station, but in the early
1990s the US government began to divert Haitian refugees to Guantanamo
Bay. There they were tested for HIV and those found positive were
detained until, on June 8 1993, a US district court judge, in an
excoriating judgment, declared the detentions unlawful.
In 2001, the Bush administration found a new use for the base as a
warehousing facility for prisoners taken in the “global war on terror”.
When the Taliban fled Kabul in November 2001, the US dropped leaflets
in Afghanistan offering a bounty for captured Taliban and al-Qaeda
fighters. Thousands of men were sold to US forces by Northern Alliance
forces, (as were the three British detainees released earlier this
year). Others were detained in Pakistan, and more still were seized as
far afield as Bosnia and Gambia.
In January 2002, the first prisoners were flown to Guantanamo. David
Hicks, an Australian captured in 2001 in Afghanistan, allegedly
fighting for the Taliban, was among them. It was the end of a strange
trajectory for this small-town boy from a modest family, who had
allegedly joined the Kosovo Liberation Army in 1999 and then, later
that year in Pakistan, Laskar-e-Taiba, a militant organisation fighting
in Kashmir. In 2001, the US government claims, he attended an al-Qaeda
training camp in Afghanistan. Now, like the others, he found himself in
a prison that the US administration had deemed was beyond the law.
Under the Geneva Conventions, captured prisoners are entitled to a
hearing to determine their status. If they are civilians, they should
be brought before a legal authority. If they are prisoners of war, they
may be detained but are not obliged to answer questions. But these men
were designated “enemy combatants” and detained for prolonged
interrogation.
In a memo dated January 25 2002, the counsel to the president, Alberto
Gonzales, advised Bush that he had the authority to disregard the
Geneva Conventions and that doing so “substantially reduces the threat
of domestic criminal prosecution [of administration officials] under
the War Crimes Act” for such crimes as “inhuman treatment” and
“outrages upon personal dignity”. By ruling that the Geneva Conventions
did not apply, Bush opened the door to interrogation methods that would
be banned by domestic and international law. And if Guantanamo was
indeed beyond the law, the men could, in theory, be held there forever.
”Guantanamo was an experiment in two things,” says Richard Bourke, a
young Australian lawyer who works with Stafford Smith. “In
interrogation techniques, and in how far you could go before people
began to object. In 2002, nobody was objecting.” For Bourke, the
campaign on their behalf was also a lesson in how to take action. In
early 2002, Bourke had just moved to New Orleans to work for Justice in
Exile. “One morning I was reading the newspapers and moaning about how
awful Guantanamo was. I read an article that named Stephen Kenny as the
lawyer for David Hicks. Clive just said, ‘Why don’t we do something?
Can you get hold of that guy?’” Bourke and Stafford Smith began to work
the phones.
”We had no idea at the beginning,” says Stafford Smith, “how
complicated it was.”
They called, among others, the Centre for Constitutional Rights in New
York (CCR), a legal NGO whose president, Michael Ratner, had litigated
on behalf of the Haitians detained in Guantanamo in the early 1990s;
Joe Margulies, a Minneapolis lawyer who also specialised in death
penalty work; and two British solicitors, Gareth Peirce and Louise
Christian, who were acting on behalf of British detainees. They had the
beginnings of a coalition. Michael Ratner had also called Stephen
Kenny. A genial Australian lawyer in his 50s, Kenny had read about
David Hicks in the newspapers. “He was the first detainee to be sent to
Guantanamo and all that I read about him was that he was supposed to
have said that he wanted to kill Americans,” he says. “The Australian
government was saying that he was among the 10 most dangerous men in
the world. I noticed that the family weren’t saying anything. I knew
that they wouldn’t know what to do.” Kenny contacted them and asked if
they wanted a lawyer. “They said they didn’t have any money.” He grins.
“I told them that I had figured that might be the case.”
In Adelaide, Kenny began to read up on international law and the Geneva
Conventions. “I needed a writ of habeas corpus against Bush [requiring
a prisoner to be brought to court to determine whether their detention
is lawful] and for that I needed a US law firm. Every one I called
turned me down. They thought I was bonkers. Perhaps it was pretty mad
in January 2002 to be talking of suing the president on behalf of the
terrorists. Then I got an e-mail from Michael Ratner at the Centre for
Constitutional Rights, and Clive Stafford Smith and Richard Bourke got
in touch.”
CCR operates from an office in lower Manhattan, a few blocks from the
World Trade Center. On September 11 2001, the deputy legal director,
Barbara Olshansky, arrived at the office just as the first plane hit
the north tower. “We all went upstairs and we watched the second plane
go in,” she says. “People were walking past here, getting away from the
scene. We just took our water coolers down to the street and handed out
water to people going by until 7pm that night. I lost a cousin and a
good friend in 9/11. Other people here also lost friends.” In the days
that followed, the centre began to take calls from people anxious about
relatives who had been swept up in the mass detentions throughout the
US that followed 9/11. Up to 3,000 people had disappeared. Their
families had no idea where they were or why they had been arrested. CCR
took up the cases.
”We knew it wouldn’t make us popular,” says Olshansky, “but I had no
idea how angry and malicious people could be. There were awful messages
left on my phone, terrible e-mails. And we worried about whether we
were really hurting people by taking cases.” It was over Guantanamo
Bay, though, that the staff, traumatised as the rest of the city had
been by September 11, had the tensest discussions. “I asked myself all
the time, what if I’m wrong?” says Olshansky. “What if these are all
terrible people? But in the end we said it was too horrible. You can’t
just watch while civilisation and morality are abandoned. We had to do
something.”
The first case, a habeas corpus writ, was filed on behalf of David
Hicks and the British detainees Shafiq Rasul and Asif Iqbal in February
2002 before Judge Colleen Kollar-Kotelly in the Federal District Court
in Washington. The detainees were chosen because they were the only men
on whom the lawyers had details. Another detainee, Mamdouh Habib, an
Egyptian-born Australian, was added later. “He’d been sent to Egypt to
be tortured for six months, so we just didn’t know about him,” says
Kenny. “The US government had notified the British and the Australian
government of their prisoners,” says Stafford Smith, “so they were the
names we knew. It was the first time in my life I had filed a case for
a client I couldn’t even talk to. But they were relatively easy: they
spoke English and we had contacts in the countries they came from.”
It was the only aspect of the cases that was easy. “We knocked on
everybody’s door,” says Olshansky, “looking for support, for money,
anything. We got answers that ranged from polite to impolite refusals.
It was a radioactive issue.” They were not surprised to be rebuffed by
major law firms, but even the human rights NGOs turned them down.
“Everyone was worried about the impact on donors and on funding. Nobody
would help.”
Then there were procedural problems. “None of us was licensed to
practise in Washington,” says Stafford Smith, “And we needed a licensed
lawyer to sign the papers to file in a Washington court. Nobody wanted
to. Eventually we found a courageous criminal lawyer who agreed to do
it if we didn’t expect him to do anything else. Then the court insisted
that the client was supposed to pay the filing fee, unless he filed an
affidavit saying he had no money. We couldn’t get to the clients to get
an affidavit.” Stafford Smith paid the fee.
The hearing did not go well. They lost in the Washington trial court
and again in the appeals court. But by then another significant player
had come on board. In April 2002, the families of a group of Kuwaiti
detainees who had disappeared in Pakistan in 2001 were trying to find a
lawyer. Two prominent American lawyers had turned them down, but
eventually they reached Tom Wilner, a partner in the major Wall Street
firm, Shearman Sterling. Wilner took the case. He flew to Kuwait to
meet the families and while he was there the US government notified the
Kuwaiti government that eight of the men were in Guantanamo. The Red
Cross later notified them of another four. The men, Wilner says,
regularly travelled to Muslim countries to do charity work. In 2001
they had chosen Pakistan. They had been sold for bounty from a
tribesman’s house, in the North- West Frontier Province, he tells me,
and stripped naked, shaved and sent to Guantanamo.
It was Wilner’s turn to receive hate mail. “To be honest,” he says, “I
hadn’t hesitated about taking the case. I didn’t see it as a big issue.
I just thought, this is what lawyers do - they stand up for the rule of
law. And if you sacrifice that, you give up on civilisation. I was
really surprised by the controversy.” The decision, though, was highly
controversial in the Bar, which created tensions in Shearman Sterling,
though the firm stood by him. “The firm is based in New York and people
were understandably afraid. Lawyers somehow felt that the rules had
changed,” Wilner says. “When the first prisoners went to Guantanamo,
the tendency was to trust the government. The government said they were
all terrorists. I think people were afraid that lawyers would interfere
with the government’s fight against terrorism.”
On May 1, Wilner filed a petition for basic due process - access to a
lawyer, family visits and an independent tribunal. “We based it on
civil law and habeas corpus,” he says, “but we weren’t saying let them
out. It was much milder than that.” Despite his relative restraint, the
hate mail was coming in at the rate of 100 messages a day. Wilner was
also looking around for allies and called Stafford Smith and the Centre
for Constitutional Rights. “I guess they were pleased to hear from us,”
he says. “It wasn’t bad to have a prestigious firm on side.” In
December 2002 the group met in Georgetown for a brainstorming session.
By this time it was some 20-strong.
The administration had also been developing its strategy. The lawyers
believe that a primary purpose of Guantanamo was to act as an
intelligence bank and a source of potential double agents. Prisoners
are regularly interrogated in a row of Portakabins erected in Camp
Delta, the more permanent camp built to replace the initial facility,
Camp X-ray. Prisoners wait for their interrogations in permanently
floodlit wire mesh cells. But there was another aspect to the prison.
Under Military Order No. 1, issued on November 13 2001, Bush had given
himself the right to detain any non-US citizen anywhere in the world
for as long as he chose. He also set up a system of military tribunals
to try alleged terrorists. The tribunals would operate under rules
determined by the president: hearings would be held in secret with no
safeguards or rules of evidence, before military judges who could
sentence prisoners to death by majority vote. No appeal to an
independent tribunal would be allowed.
In a concession to the system’s critics, five military lawyers were
assigned to the defence. In August 2003, Bush, who said of the
detainees, “The only thing I know for certain is that these are bad
people,” nominated six men for trial. David Hicks, the Australian, and
two British men, Moazzam Begg and Feroz Abbasi were among them. “There
was a huge row when they designated the British detainees,” says
Stafford Smith. “If we said the tribunals were Stalinist show trials
nobody would pay any attention, but now we had senior British judges
saying that kind of thing.” Lord Steyn, one of Britain’s most senior
judges, called Guantanamo a “monstrous failure of justice”.
In early November last year, the military authorities in Guantanamo
rehearsed the future proceedings in a mock trial, with members of the
military police playing defendants. Back in December 2002, though, the
five military lawyers, four men and a woman, had a potential function
but, as yet, no clients. They had, however, learned something of the
system under which they would be called upon to mount a defence of
their future clients and nothing they had encountered had led them to
believe that a fair trial would be possible. But, as serving officers,
they were subject to military rules and discipline and when they agreed
to attend the Georgetown brainstorming meeting, both sides were aware
that, at the very least, a culture clash was likely.
Philip Sundel is a naval officer who had volunteered for the job and
joined the office of the military commissions, the body set up by the
Bush administration to handle the planned tribunals, when it was
created in March 2003. “Clive [Stafford Smith] contacted the office and
offered assistance and the message was passed on to us,” he says. “We
were slightly concerned that people who were not necessarily going to
have clients might have their own agendas that might not be helpful to
our clients.”
”I remember them coming in,” says Olshansky. “All short haircuts,
uniforms and medals. We were seen as a fringe-left group. But then we
found out that they did believe in the legal principles and they were
also horrified by what was happening.”
The military lawyers, too, saw the advantages of co-operation. “It was
evident that Clive could help us get the things we needed. He had
experience in capital cases and knew how to get resources that I didn’t
know how to find,” says Sundel. There was, though, a long road ahead.
“We still had no private support - no law firms backing us,” says
Olshansky. “It was very helpful to be able to invoke the military.
Against us were some really big name lawyers who were taking the
position that torture could be justified and that the Geneva
Conventions were somehow old fashioned.”
For the wider public, the rights of the Guantanamo detainees remained a
deeply unpopular cause. Administration officials continued to argue
both that the men held there were among the most dangerous in the world
and that they were a rich source of intelligence for the war on terror
- a contention, defence lawyers argue, since challenged by several US
intelligence officers. It was not until the first detainees were
released in January this year - and were found to include two young
boys and one very old man - that cracks began to appear in the
administration’s argument.
By April this year, 146 detainees had been returned to their native
countries, including Sweden, Spain, France, Pakistan and the UK. (The
largest groups of detainees come from Saudi Arabia, Yemen, Afghanistan
and Pakistan.) More than 80 per cent of them, once back home, were
released without charge. They include an Afghan taxi driver and his
passenger, several Afghan truck drivers, two teenaged Afghan boys,
civilians of various nationalities who say they were engaged in aid
work, and an Afghan shepherd.
Several former detainees, including two of the British men, told
disturbing stories of physical and psychological abuse. One in five of
the remaining detainees, according to the US Department of Defence, is
being medicated for chronic depression, and attempted suicide was
admitted to be common. (The Department of Defence recently reclassified
attempted suicide as “manipulative self-harming behaviour”.) The
released men’s testimony to the harshness of the regime, however, had
little impact on an American public still inclined, at that point, to
trust their president. The lawyers pieced together a picture of
coercive interrogation in which co-operation and confession was
rewarded with basic comforts and non co-operation was severely
punished. One frequently used punishment was a visit from the “Extreme
Reaction Force” (ERF) - a practice that became known among the lawyers
as “Erfing”. Released detainees have described the Extreme Reaction
Force as a seven-man squad, one of whom carries a plexiglass shield,
who are called in when a prisoner refuses to obey an order. This
happens, according to Department of Defence officials, on an average of
three times a week.
Evidence of the brutality of “Erfing” came from Sean Baker, a member of
a military police unit who was assigned to duty in Guantanamo. In
January 2003, he volunteered to play the part of an unco-operative
prisoner for an ERF training exercise. He wore an orange jumpsuit and
the squad was unaware that he was not a detainee. The beating only
stopped, he says, when his jumpsuit was torn open and his military
uniform beneath revealed, by which time he had suffered brain damage
and is now subject to seizures. Baker has sought legal advice.
For the lawyers, defeat in the appeals court in Washington was
discouraging. “We were just losing everything,” says Stafford Smith.
Their next step would be to petition the Supreme Court but there was no
guarantee that the case would be taken. If the court declined, the
Guantanamo coalition would be at a legal dead-end and the prisoners
would face indefinite detention, with or without military tribunals.
The tribunals were increasingly alarming to the military lawyers. “They
lack all the essential ingredients that you need for a fair trial,”
according to Lt Cdr Charlie Swift, the military lawyer assigned to the
defence of a 34-year-old Yemeni, Salim Ahmed Hamdan. In a conversation
earlier this year, Swift listed the tribunal’s deficiencies with a
fluency born of repetition: it is not independent or impartial and
there is no impartial review. The two sides are not equal since
prosecution assets outweigh defence assets by three or four to one.
“There are 20 prosecutors and only five defenders,” he said. “They can
put any number of people on to my case.” The “appointing authority”, he
complained, functions as both the judge and the prosecutor and “decides
who is going to be charged, what the charges are, who is on the jury,
what resources and discovery the defence gets, and then he rules on the
legality of his own decisions”.
Besides, according to Swift, the government may exclude a detainee from
the hearings, which makes it impossible for him to challenge the
evidence. As a lawyer, Swift finds himself in an impossible dilemma:
should he challenge the system, in which case his client may get no
trial, or accept an unfair system that could condemn his client to a
long prison sentence?
When Swift finally met Hamdan in Guantanamo earlier this year, he was
surprised by what he found. “I was expecting a battle-hardened
terrorist,” he said. “When I met him, I thought, ‘Is this the worst
they have here?’” His client, he discovered, was a courteous family man
who, despite his experiences, appeared to feel no animus towards his
American military lawyer. Hamdan, says Swift, like many Yemenis, went
abroad looking for work. He found it driving agricultural workers on
Osama bin Laden’s estate near Kandahar in Afghanistan in 1995, and
eventually graduated to driving Osama’s family.
When the war began in 2001, he tried to go home with his pregnant wife
and child but was captured as he was returning his vehicle in
Afghanistan and was turned over to US forces. Now he is in solitary
confinement, awaiting trial. For the first 70 days there, his only
reading material was the Koran. After Swift protested, he was given
another book - on congenital deformities in the Middle East. Swift had
always felt it his duty as a lawyer to give Hamdan a zealous defence:
after meeting his client, he told me, this became a personal
commitment. “I am convinced,” he said, “that he deserves no less.”
On April 7 2004, Swift filed a habeas corpus suit in Seattle in which
he challenged the constitutionality of the system of military
detentions. But after he had filed, the Supreme Court agreed to review
the earlier judgments in Washington. Swift’s case was put back, to
await the Supreme Court’s verdict. With the promise of attention in the
Supreme Court, the coalition returned to the challenge of mobilising
support. This time, things went better. “A lot of it was the passage of
time,” says Margulies. “We had to lose in the lower courts. It was
above their pay grade to cast doubt on the entire strategy of the war
on terror. We needed a big court, the passage of time, a confluence of
events and the accumulation of evidence that the executive was
over-reaching itself. I am proud of the fact that we recognised from
the beginning that the executive was claiming unbounded authority and
that you can’t have unbounded executive power. The important thing was
that between the DC circuit court case and the Supreme Court hearing we
were joined by mainstream centrist interests.”
By the time the case came to the Supreme Court, it was accompanied by a
stack of amicus briefs - arguments filed in support of either side of a
case by individuals or groups who can claim an interest. (They included
a brief submitted by 85 British MPs and 50 peers.) Among the most
powerful of the briefs was from Fred Korematsu, a Japanese American
whom Margulies had contacted. In 1942, Korematsu had petitioned the
Supreme Court - and lost - against the mass detentions of Japanese
Americans during the second world war. Korematsu had gone to jail, but
more than 50 years later was awarded the Presidential Medal of Freedom
for his courage and persistence in fighting the detentions. Former
American prisoners of war also filed an amicus brief, arguing that if
the US ignored the Geneva Conventions, US prisoners of war would be
left without protection, an argument supported in another amicus brief
by a group of retired military officers.
The oral arguments were heard on April 20. Ted Olsen, the US solicitor
general who lost his wife in 9/11, argued for the government. A week
later, on April 28, CBS broadcast the notorious photographs of the Abu
Ghraib prison. “I woke up and saw the Abu Ghraib photographs and I knew
it was the best hope for the people in Guantanamo,” says Stafford
Smith. “There was a real shift in public opinion. After all, we weren’t
saying these people were innocent, but we were saying you shouldn’t
sodomise them. It’s a bit grim to be pleased by Abu Ghraib but I am
sure it helped.”
The current Supreme Court is known as one of the most conservative for
many years. Yet when the judgment came, on June 28, it was seen as both
a dramatic rebuke to the administration and a reassertion of the
court’s independence. A state of war, the court said, “is not a blank
cheque for the president”. The administration’s strategy was in
disarray. The Pentagon moved swiftly into damage control mode. The day
after the Supreme Court decision, it announced the appointment of the
officers who would sit in judgment on the prisoners: four unidentified
military officers will be presided over by a retired army colonel and
military judge advocate, Peter Brownback III. The first cases were
heard on Tuesday. (For the defence counsel, this was altogether too
soon.)
The Pentagon also announced that there would be a separate review of
all the detentions at administrative hearings, for which each prisoner
would be assigned a personal representative - a military officer who is
not a lawyer - and an interpreter to plead before a three-member
“Combatant Status Review Tribunal”. It was positive in public relations
terms, but the defence lawyers doubted whether, after more than two
years of detention, the prisoners would be in a condition to argue
their case before a military board that they had every reason to
mistrust and in which all forms of evidence, including from anonymous
witnesses and coerced testimony, would be admissable. “These people
might well be incompetent to proceed,” said one lawyer, “but some of
them will be desperate to get any hearing at all and may well go ahead
with it.” Those hearings began on July 30. The same day, a San
Francisco federal judge ordered the government to explain its detention
of a Libyan prisoner in Guantanamo. So far every one of the first 14
cases reviewed has been affirmed as an enemy combatant.
On July 7, nine more detainees had been designated eligible for
military trials, bringing the total to 15. Only the four who faced
preliminary hearings this week have been charged or assigned military
defenders. Of the five military defence lawyers, two are assigned to
one prisoner. None remains available, as of now, for other prisoners
and one of the existing five, Phil Sundel, is due to leave the navy,
having been passed over twice for promotion, and will no longer work on
the case once he has left.
For the defence coalition, the Supreme Court victory was a stunning
vindication but it still left the lawyers facing a long legal battle
and their clients were still in detention. “The Supreme Court opened
the door,” one lawyer observed, “but there’s no map of how to proceed.”
On July 2 they filed lawsuits again in Washington, arguing that the
detentions were unconstitutional. To date, 13 petitions have been filed
in the federal district court on behalf of 71 detainees. But on July
30, the Justice Department argued that the prisoners had no
constitutional rights and there was no obligation to allow them access
to their lawyers. The defence lawyers now fear that the administration
will try to use the decisions of the combatant status review tribunals
to resist the habeas corpus petitions in the federal court. “It’s as
though the Supreme Court decision never happened,” says Wilner.
The lawyers’ attempts to see their clients have taken on a Kafkaesque
tinge. The only civilian lawyer who has been permitted to visit
Guantanamo is Stephen Kenny, who was allowed to go after the Australian
government vouched for him. The government agreed to allow access to
others, provided that they were US citizens and had been given security
clearance, a process that the Department of Defence promised would take
only two weeks. For some of the lawyers, it has already lasted 10
months. The authorities continue to insist that legal conversations
with the client must be monitored. The prisoners, they say, might be in
possession of US “top secret” information that the lawyers have not
been cleared to hear. “Leaving aside the mystery of how foreign
nationals who had been in US custody for two years might have acquired
top secret US information,” said Wilner, “why don’t they just clear us
for top secret information?”
The conditions that the Department of Defence imposed were regarded as
so draconian by the US National Association of Criminal Defence Lawyers
that it ruled it would be unethical for a lawyer to agree to defend a
prisoner in the Guantanamo tribunals. They include a requirement to
inform on the clients to the military authorities and not to discuss
with anyone, including the client, evidence the military deems
classified. The legal effort is further hampered by difficulties in
obtaining competent interpreters, who also need security clearance. The
military lawyers, too, struggle with a shortage of facilities and
funds. At least one military lawyer still has no interpreter. And in
this world of shifting rules, the military lawyers remain uncertain
about how much they may criticise the process publicly.
”There is a category of ‘protected information’,” says one military
lawyer, “which has been invented for this. It has no legal basis and
comprises classified information plus anything else that someone thinks
it would be contrary to the national interest to have released. There
is no explanation of how it can be challenged or what the legal basis
of it is.” In a training exercise on protected information, one officer
said that he knew of no evidence that implicated his client. He was
told that the absence of evidence was itself protected information.
Charges have been published against only the four defendants who
appeared this week. David Hicks is charged with conspiracy, attempted
murder by an “unprivileged belligerent” and aiding the enemy. Ali Hamza
Ahmed Sulayman al-Bahlul of Yemen, Ibrahim Ahmed Mahmoud al-Qosi of
Sudan - who is alleged to have joined al-Qaeda in the Sudan in 1989,
and to have worked for it in Pakistan, Chechnya and Afghanistan - and
Salim Ahmed Hamdan, Swift’s client, are also charged with conspiracy.
The preliminary hearings in the first cases began this week and the
defence lawyers believe that the government is anxious to press forward
with the trials as early as September, but they still do not have
detailed rules of procedure. They do not know whether witnesses will
need security clearance to go to Guantanamo Bay or how to use evidence
from witnesses who cannot go there. “My private worry,” says one
military defender, “is that my presence will merely serve as a fig leaf
for a procedure that is fundamentally unfair.”
The lawyers of the loose coalition that coalesced around Guantanamo
have forced an opening in the US legal system. Now they face the
different complications of how to proceed and whether to try to
co-ordinate a future strategy or to pursue the interests of their
clients separately. There are, though, the complications of success.
Since the Supreme Court decision, Justice in Exile, which already had
taken on 53 Guantanamo cases, has been flooded with requests for
representation from detainees’ families in Bahrain, the Yemen, Saudi
Arabia, Libya, Qatar, Syria and Jordan. Stafford Smith took them all.
Margulies reflects on the long fight to get to this point.
”I am proud of my role,” he says, “though articles about frayed carpets
in impoverished legal offices make me sick.” “We feel vindicated,” says
Wilner. “The firm took some heat but attitudes have changed with the
passage of time and people realise the government is not infallible.
Now I get congratulations instead of hate mail.” Celebration, though,
is premature for Wilner. “It’s important to remember that it’s only a
legal victory. It’s clear that most of the people in Guantanamo
shouldn’t be there. But they’re still there. It’s been two and half
years and we don’t know how much longer it will take. It’s really
bothering me.”
--
School of Computing Science, University of Newcastle, Newcastle upon
Tyne,
NE1 7RU, UK
EMAIL = Brian.Randell@xxxxxxxxx PHONE = +44 191 222 7923
FAX = +44 191 222 8232 URL = http://www.cs.ncl.ac.uk/~brian.randell/
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