Monday, April 13, 2009


By William Fisher

U.S. President Barack Obama has ordered the Navy’s prison at Guantanamo Bay closed by next January, suspended Military Commission trials, and assigned Attorney General Eric Holder to conduct case-by-case reviews of the 241 prisoners still detained there to determine which ones should be prosecuted, released or sent to other countries. Yet the Obama Defense Department is still trying to recruit lawyers to defend its detentions.

In a ''help wanted'' ad circulated through the American Bar Association, the Pentagon (DOD) is offering $39,407-- $130,211 a year for lawyers who will help respond to habeas corpus petitions filed by detainees in federal courts.

Habeas Corpus petitions challenge the government’s right to imprison them. That right was granted to the detainees in a landmark Supreme Court decision in June 2008.

The job posting said, ''Attorneys with any litigation experience are encouraged to apply” for the three-year positions. It said the positions are “located in the Washington, D.C. area, with the potential for some travel to Guantánamo Bay.'' The ad says the DOD Office of the General Counsel is looking for applicants who can “start immediately.”

An increasing number of individual detainees' cases are now coming before different federal judges, who are weighing whether the Pentagon has enough evidence to hold them as war prisoners, even after President Obama declared that they would no longer be categorized as “enemy combatants.”

The original lawsuits challenged the legal basis for their detention under former President George W. Bush – a right they were afforded by a decision by the U.S. Supreme Court. Now Obama’s name has been substituted for Bush’s.

Pentagon lawyers working on these habeas cases have been mandated to find evidence to justify the detentions of the Guantánamo captives. But lawyers defending the detainees say that the additional Defense Department lawyers have failed to make any meaningful effort to locate or produce exculpatory evidence.

Most of the Guantanamo detainees have been held for up to seven years without charge. Nineteen of them have won their cases but are still being held because the U.S. has refused to accept them onto American soil, and has been unable to find other countries to accept them.

A Pentagon spokesman told The Miami Herald that there were no job openings. The newspaper reported that the Defense Department has been advertising the job offers since last summer, before Obama took office, as part of an active effort to amass résumés “to address any future hiring requirements, including to replace any departing attorneys.''

Former acting Pentagon General Counsel Daniel Dell'Orto notified the Court last August that the DOD was hiring 40 attorneys to help on the cases. At that time, it had approximately 30 lawyers working “exclusively on habeas corpus litigation.''

Over the years, the Justice and Defense departments have created entire units to defend the policy -- as well as the new special war court championed by the Bush administration to try suspected terrorists by military commissions.

Meanwhile, the war court has increased its numbers of lawyers, even as the Bush policy is under review by Obama Administration. There are now 63 military commissions prosecutors, an increase from 61 in December. These government lawyers would prosecute detainees should Military Commission trials resume following the Obama review.

Government lawyers have failed in their effort to stop the cases wholesale on grounds that they were hindering the war effort by jamming the docket at the U.S. District Court in Washington, D.C.

In another Guantanamo development, lawyers for Binyam Mohamed face the prospect of six-month jail sentences in America after writing a letter to President Obama detailing their client's allegations of torture by U.S. agents.

That prospect has been triggered by a complaint made by a unit known as the Privilege Review Team (PRT), which is composed of U.S. DOD officials who monitor and censor communications between Guantánamo prisoners and their lawyers. As a result of that complaint, Clive Stafford Smith, director of legal charity Reprieve, and his colleague Ahmed Ghappour, have been summoned to appear before a Washington court on May 11.

The PRT complaint accused Stafford Smith and Ghappour of "unprofessional conduct" and said that by releasing the redacted memo, Reprieve breached the rules that govern Guantánamo lawyers.

A number of lawyers representing Guantanamo detainees have previously accused the PRT of using its powers to suppress evidence of the abuse and mistreatment of detainees.

The background to this event is arguably reminiscent of something from a Kafka novel. Stafford Smith had written to the president after judges in the U.K. ruled against the release of U.S. evidence detailing Mohamed's alleged torture at Guantánamo. The letter asked the president to reconsider the U.S. position and urged him to release the evidence into the public domain. He attached a memo summarizing the case because his U.S. security clearance gives him access to the classified material. In order to comply with classification guidelines, the memo did not identify individual officers by name or specify locations of the abuse.

He and Ghappour submitted the memo to the Privilege Review Team for clearance. However, the PRT redacted (edited) the memo down to just the title, leaving the president unable to read it. Stafford Smith included the redacted copy of the memo in his letter to illustrate the extent to which it had been censored. He described it as a "bizarre reality".

He wrote, "You, as commander in chief, are being denied access to material that would help prove that crimes have been committed by U.S. personnel. This decision is being made by the very people who you command."

Stafford Smith described the PRT’s actions as intimidation, saying the complaint "doesn't even specify the rule supposedly breached".