By William Fisher
As the new Democratic Party majority in Congress considers whether to re-visit the Military Commissions Act of 2006 (MCA), the administration of President George W. Bush is proposing still more restrictions on detainees in American custody.
The government has proposed limiting contact between defense lawyers and detainees at Guantanamo Bay because detainees' communications, such as news of world events, could incite the prisoners to violence.
The U.S. proposal to limit lawyers’ contacts with their Guantanamo was contained in a filing to a federal appeals court in Washington. The case deals with an Afghani detainee but the government wants them to apply to other prisoners at Guantanamo. The prison camp currently holds some 430 detainees.
Among the more controversial provisions of the MCA, which President Bush signed into law in October, is one that strips U.S. courts of jurisdiction to consider writs of habeas corpus filed by detainees classified as enemy combatants. The Administration contends that the president may classify any person, even a U.S. citizen, as an enemy combatant.
But Senator Chris Dodd, a Connecticut Democrat, has already introduced legislation that would restore habeas corpus rights to military detainees and make other amendments to the MCA. Dodd's bill, the Effective Terrorists Prosecution Act, would restore those protections. The amendments would also narrow the class of detainees identified as unlawful enemy combatants who are affected by the MCA's habeas restriction.
The Democratic Party won control of both the House of Representatives and the Senate when they defeated Republicans in mid-term elections last month.
Since its passage, the MCA has come under fire not only from Democrats but also from the judiciary, human rights groups, some Republicans, and foreign countries.
Last month, lawyers representing detainees at Guantanamo Bay petitioned the U.S. Court of Appeals for the District of Columbia Circuit to declare the suspension of habeas rights unconstitutional. In an amicus – friend of the court -- brief in the case, seven retired federal judges urged the appeals court to rule that parts of the MCA violate the Constitution.
The principle of habeas corpus, originally contained in the Magna Carta, has been one of the cornerstones of U.S. law since the nation’s founding. It gives a detainee the right to go to court to challenge the authority of the prison or jail warden to continue to hold him or her.
Dodd's bill would also provide for expedited review of the MCA to ensure its constitutionality.
An alternative strategy is being proposed by Prof. Peter Shane of Ohio State Law School and Director of the Center for Interdisciplinary Law and Policy Studies. He told us, “The Constitution limits the suspension of habeas to occasions ‘when in Cases of Rebellion or Invasion the public Safety may require it.’ Because our public safety is not now at risk from either rebellion or invasion, the MCA is unconstitutional in suspending habeas. I'd be happy for Congress to amend the MCA, but they may fear a veto. An alternative strategy would be a concurrent resolution proclaiming ‘the sense of Congress that public safety is not now at risk from either rebellion or invasion.’ This could be a powerful aid to anyone bringing litigation to challenge the MCA.”
The proposed new rules for detainee-lawyer contacts would apply to detainees pursuing court challenges to their designations as "enemy combatants," and would tighten censorship of mail from attorneys and give the military more control over what lawyers can discuss with their clients, according to the filing.
The number of face-to-face meetings between defense attorneys and detainees would be limited to four total. There are now no restrictions on the number of times they can meet, although lawyers' access to the base is already hampered because it is so remote.
The government says current rules have allowed detainees to receive books or articles about terrorist attacks in Iraq, London and Israel, as well as details of the prisoner abuse investigation at Iraq's Abu Ghraib prison.
In the court filing, a military lawyer said security at Guantanamo Bay has been threatened by the introduction of a book on Abu Ghraib, a speech given at an Amnesty International conference about the war on terror, and other materials.
"Such materials could incite detainees to violence, leading to a destabilization of the camp," wrote Navy Cmdr. Patrick M. McCarthy.
The government petition was filed this summer but only recently discovered by The Boston Globe newspaper, relates to the case of Haji Bismullah, an Afghan who is among several Guantanamo detainees represented by the New York-based advocacy group, the Center for Constitutional Rights (CCR).
Currently, mail from lawyers is examined only for physical contraband. The proposed rules call for all of a detainee's mail to be examined for forbidden information.
A CCR attorney said he suspects the proposal is aimed at controlling the information coming out of Guantanamo. Accounts from defense lawyers who have visited Guantanamo have cast doubt on government assertions that most detainees are hardened terrorists.
"What's happening is the government wants to hide this indisputable fact," he said "They're not happy we've been able to bring a lot of these developments to light."
Many other human rights organizations have weighed in on this issue. For example, Mary Shaw of Amnesty International USA told us, “With passage of the Military Commissions Act, human rights violations perpetrated by the Bush administration in the ‘war on terror’ have in effect been given the congressional stamp of approval. This raises serious questions about the U.S. government's commitment to due process and the rule of law.”
She added, “The ‘war on terror’ must not be used as an excuse to deny the basic human rights of any person. Amnesty International will continue to campaign for U.S. ‘war on terror’ detention policies and practices to be brought into full compliance with international law, and for repeal of any law that fails to meet this test.”
In 2004, the Supreme Court said detainees can contest the legality of their detentions. But, while the MCA bars detainees from protesting their detentions in court, they still have a right to challenge their designations as "enemy combatants." The new rules would restrict legal representation for those challenges.
Meanwhile, lawyers for dozens of Guantanamo Bay detainees have asked a federal appeals court to declare a key part of President Bush's new military trials law unconstitutional.
The detainees' lawyers challenged the military's authority to arrest people overseas and detain them indefinitely without allowing them to use the U.S. courts to contest their detention.
In written arguments, attorneys for more than 100 detainees who would be locked out of the regular judicial system asked the U.S. Court of Appeals for the District of Columbia Circuit to let the detainees keep their legal challenges going in civilian courts.
President Bush says he would like to close Guantanamo, but shows no signs of so doing. In fact, a new facility for holding trials there is now nearing completion.
In five years, not a single detainee has been charged or tried. And it is extremely unlikely that the fourteen high-value suspects recently transferred to Guantanamo from secret prisons elsewhere will ever come to trial because the evidence against them was probably obtained through coercion.
One can only wonder if President Bush is really being informed by those who advise him of what Guantanamo represents to most of the rest of the world. In simply symbolic terms, it destroys his rhetoric about democracy and the rule of law, and turns against America the very people whose hearts and minds the President says he’s trying to win.