By William Fisher
A Justice Department proposal to limit lawyers’ access to the nearly 400 detainees at Guantanamo Bay is drawing sharp criticism from much of the legal community in the US.
In a court filing, the DOJ claimed that the lawyers’ use of mail to communicate with their clients had “enabled detainees’ counsel to cause unrest on the base by informing detainees about terrorist attacks.” The mail system has been “misused” to inform detainees about military operations in Iraq, activities of terrorist leaders, efforts to fight terrorism, a Hezbollah attack on Israel, and abuse at the Abu Ghraib prison, the department said in the filing.
The DOJ is seeking to narrow the definition of “legal mail” and set a three-visit limit on face-to-face meetings once a detainee agrees at an initial meeting to let a lawyer represent him.
The Court of Appeals for the District of Columbia Circuit is expected to hear arguments on the proposal on May 15.
"Creating a legal black hole where rights are denied is as un-American as it is illegal," said Anthony Romero, of the American Civil Liberties Union.
And Mary Shaw of Amnesty International USA told Truthout, “The right to a fair trial is one of the universally applicable principles recognized in the Universal Declaration of Human Rights, to which the U.S. is a signatory. The U.S. took a huge step away from this standard with the Military Commissions Act of 2006. And now the proposal to limit attorneys' access to their clients at Guantanamo Bay will further hinder detainees' right to full equality under the law.”
“How a person is treated when accused of a crime provides a concrete demonstration of how far a state respects human rights. Amnesty International strongly urges the Congress and the Bush administration take immediate steps to restore our traditional American values of justice, rule of law, and human dignity. Otherwise the ‘war on terror’ is merely a war on rights,” she said.
Lawyers are predicting more suicides and despair at Guantanamo if the Justice Department prevails. They point out that lawyers are virtually the only contact inmates have with the outside world. If their visits are limited, detainee
desperation will deepen and more will try to kill themselves, they say.
On June 10, 2006, two Saudi detainees and one Yemeni hanged themselves with sheets, the first and only suicides since the 2002 opening of the detention center that now holds about 380 inmates.
Clive Stafford Smith, an attorney for several Guantanamo detainees, said
curtailing lawyer visits would likely lead more prisoners to attempt suicide.
"The level of depression is soaring, I am afraid," he said.
He added that many detainees are kept in isolation in small cells with no natural light. With no prison sentence having been pronounced — except for one Australian detainee — the detainees do not know when they will get out, if ever. Many have been there for more than five years.
Attorney Stephen Oleskey, who represents six Algerians, said more suicides are
"a real risk" if the court restricts lawyer-client contacts.
"I've seen firsthand the mental conditions of my clients deteriorate in isolation," Oleskey said. "And I think the impact of further restrictions would be dramatic."
Many human rights and legal authorities view the DOJ move to restrict attorney access as an attempt to seal the facility from critics. "If we cannot come in, the only news getting out of here will be the government's carefully crafted version," said one of them.
They say it is the attorneys who provide the world with information about hunger strikes, solitary confinement and other details about the detainees. Journalists can visit but are barred by the military from interviewing detainees. The Red Cross, which occasionally visits, keeps its findings confidential.
But military commanders at Guantanamo and the Justice Department have always viewed the lawyers with suspicion. Navy Commander Jeffrey Gordon, a Pentagon spokesman, told the Associated Press the military has been giving broad lawyer access to many detainees — even though they are accused of having al-Qaida or Taliban links and the United States is still at war.
Barry M. Kamin, president of the New York City Bar, called the assertions
"astonishing and disingenuous" in a letter to U.S. Attorney General Alberto
The president of the group asked Attorney General Alberto R. Gonzales to abandon the Justice Department proposal to limit lawyers’ access.
In his letter to Mr. Gonzales, the bar association’s president said, “This is an astonishing and disingenuous assertion.”
“Blaming counsel for the hunger strikes and other unrest is a continuation of a
disreputable and unwarranted smear campaign against counsel,” the letter said.
The 137-year-old New York City Bar, with more than 23,000 members, is one of the oldest and largest lawyers’ organizations in the country. It says the Bush administration is trying to evade responsibility for problems at the Guantánamo Bay prison by falsely blaming defense lawyers.
The American Bar Association has also criticized the DOJ move to place "arbitrary restrictions concerning the number of times and the ways that lawyers may confer with their clients in Guantanamo." ABA President Karen J. Mathis said such practices at Guantanamo or in a court "would threaten competent representation without at all advancing national security."
Meanwhile, a number of US senators have vowed to restore to foreign terrorism suspects the right to challenge their imprisonment. They say Congress made an historic blunder by stripping them of that right last year. Hundreds of suspected al Qaeda and Taliban members held at Guantanamo could be affected.
Last year's Congress, with a Republican majority, passed the Military Commissions Act (MCA), which sets specific rules for US military tribunals. It included a ban on non-citizens labeled "enemy combatants" from using "habeas corpus" petitions to challenge the legality of their detention in court, asserting that military panels at Guantanamo were a substitute for court review.
The new law was hurriedly passed in the aftermath of a Supreme Court decision striking down the Bush Administration’s position because it lacked legislative authority from Congress.
Senate Judiciary Committee Chairman Patrick Leahy, a Vermont Democrat, warned, "This new law means that any of these people can be detained forever without any ability to challenge their detention in federal court, or anywhere else, simply on the government's say-so that they are awaiting determination as to whether they are enemy combatants," he said.
"This is wrong. It is unconstitutional. It is un-American," Leahy said in testimony to the Senate Armed Services Committee, which would share jurisdiction on changing the law.
A Defense Department lawyer and some committee Republicans said the law should be allowed to work and be examined by US courts before Congress acts again.
Thus far, there have been no trials and only two prisoners charged under the MCA. An Australian detainee, David Hicks, pled guilty to a charge of aiding and abetting terrorists and was given a seven-year sentence with all but nine months suspended. A prisoner for almost five years, Hicks will serve his sentence in Australia, and is barred from talking to the media for a year.
Another group of what the Bush Administration characterizes as “high value” detainees has been sent to Guantanamo from secret prisons, whose existence President Bush admitted for the first time in announcing the transfers. It is believed these “black site” facilities were run by the Central Intelligence Agency (CIA) and located in former Soviet bloc countries in Eastern Europe as well as some in the Middle East.
But whether any of these defendants will come to trial remains an open question because at least some of the evidence against them may have been obtained using “cruel and inhumane” treatment, which is prohibited under the Geneva Conventions.
Sen. Leahy, along with the ranking Republican on the Judiciary Committee, Sen. Arlen Specter of Pennsylvania, has introduced legislation to restore habeas corpus right to detainees. With the help of Armed Services Committee Chairman Carl Levin, "I hope we can fix this serious and corrosive problem by this summer," Leahy said.
Levin, a Michigan Democrat, agreed. "We have an obligation to act now to establish a process that we can defend."
Similar legislation has also been introduced by Sen. Chris Dodd, a Connecticut Democrat and candidate for his party’s nomination for the presidency in the 2008 election.
The writ of habeas corpus – a Latin phrase meaning "you have the body" - has been a centerpiece of Anglo-American jurisprudence since it was first developed over 300 years ago in Britain. It gives defendants the right to have their imprisonment reviewed by a court.
In a related development, Sen. Dianne Feinstein, a California Democrat, has introduced legislation to close the military prison at Guantánamo.
Guantánamo Bay has become a lightning rod for international condemnation," Feinstein said. "Rather than make the United States safer, the image projected by this facility puts us at greater risk," she said.
Feinstein's bill would require the DOD to close the Guantánamo Bay prison 100 days after the bill's enactment. Feinstein laid out several options as to where the detainees would go.
They could be transferred to civilian or military prisons in the US and charged before civilian courts or military tribunals, or they could be handed over to international tribunals authorized to try them.
Detainees cleared for release would be sent either to their home countries or, if those countries have a history of prisoner torture, to third-party countries that e agree to take them.
Feinstein said she opposes releasing any terrorists, but adds that the US would be better served holding them elsewhere.
"Conducting trials elsewhere, either in the US or before internationally recognized tribunals, will give these proceedings a credibility that they would not likely have if they were conducted at Guantánamo Bay," Feinstein said.
In 2002, former Defense Secretary Donald Rumsfeld referred to Guantanamo prisoners as "the worst of the worst." In June 2005, he said, "If you think of the people down there, these are people, all of whom were captured on a battlefield. They're terrorists, trainers, bomb makers, recruiters, financiers, (Osama bin Laden's) bodyguards, would-be suicide bombers, probably the 20th 9/11 hijacker."
Other Bush Administration officials have been equally certain. For example, now retired Air Force Gen. Richard Myers, then chairman of the Joint Chiefs of Staff, said, "They were so vicious, if given the chance they would gnaw through the hydraulic lines of a C-17 while they were being flown to Cuba."
Nevertheless, of the approximately 760 prisoners brought to Guantanamo since 2002, the Pentagon reports that the military has now released all but approximately 385. Some were released to their home countries and imprisoned or freed. Others have been accepted by third countries.
But reliable evidence shows that, of the original number, many were not captured on the battlefields of Afghanistan, but kidnapped off the streets of Europe and various locations in the Middle East, and many others were "sold" to US authorities in Afghanistan and Pakistan for bounties. It has also become clear that others were simply in the wrong place at the wrong time.
Last year, the United Nations called on the US to close Guantánamo, opposing the Bush administration's claims that suspected terrorists were not entitled to treatment prescribed by the Geneva Conventions or the habeas corpus right to challenge the legality of their detentions.
More recently, President Bush has also said he would like to close Guantanamo if alternative arrangements can be made for the prisoners. The government says it is working hard to find countries willing to accept released prisoners, but is finding most of them either reluctant or unacceptable.