BY JOHN RILEY, LETTA TAYLER AND TOM BRUNE
June 15, 2005
One year ago, the Supreme Court told the Bush administration that in America, even detainees swept up in the war on terror and held at the military's Guantanamo Bay prison camp were entitled to a day in court to contest their imprisonment.
Faruq Ali Ahmed is still waiting. A young Yemeni picked up in Pakistan in 2001, he has been held since then despite his insistence that he was doing nothing but teaching the Quran to children when war broke out. He is detained in part on the basis of accusations from a camp snitch who a military officer has denounced as a liar.
Like scores of other prisoners confined at the Caribbean outpost, Ahmed has a lawyer and has filed a court challenge to his detention. But a year later, the hopes raised by the Supreme Court's precedent-setting decision in Rasul v. Bush last June 28 have yet to be fulfilled. No prisoners have yet had court hearings on whether they should be confined. Instead, they have faced a labyrinth of legal delays and a pattern of government resistance, serving as pawns in a remarkable legal drama that their lawyers say has stopped just short of obstruction of a mandate from the nation's highest court.
"I think it's pretty clear what the spirit of the Supreme Court ruling was," says Mark Falkoff, a New York lawyer who represents Ahmed and other Yemenis. "But the government position is still that Guantanamo is a legal black hole and the courts should butt out, and the military has fought every step of the way to vindicate that idea."
Flashpoint in Cuba
The anniversary of the Rasul decision comes amid a crescendo of concerns about Guantanamo. Even Republicans have begun talking about closing it, and the complaints about circumvention of the Supreme Court are expected to form a key subtext to Senate hearings today on the future of the prison camp, triggered by reports of Quran abuse and other prisoner mistreatment.
The Bush administration staunchly defends the management of Guantanamo. It says it has complied with the Supreme Court decision, providing fair hearings for all prisoners through military tribunals. While the Justice Department would not comment on the lawyers' criticism, the Pentagon said it has made "extraordinary efforts" to enable the lawyers' work, but "we also have a responsibility to ensure that national security is maintained."
In the tribunals, military officers have found the military was correct in holding 520 of 558 prisoners as enemy combatants. The dozens of volunteer lawyers who filed court petitions for prisoners after last year's ruling say the tribunals -- which excluded lawyers -- were unfair, and many prisoners are wrongly held.
At the same time, the government has fended off court intervention with a narrow reading of the Supreme Court decision, arguing that it did not approve judges overseeing "war operations," and has stymied the lawyers with a litigious approach and an obstacle course of security restrictions.
In court, they have faced resistance on such fundamental matters as whether lawyers have a right of access to their clients, notification if a client is designated for shipment to a foreign prison, and representation for prisoners who send forlorn pleas to the court on their own.
On the ground, the military has set up a system that delays legal correspondence for weeks and requires lawyers from around the country to write motions at a single secure facility in Virginia. It has tried to edit out detainees' claims of mistreatment from the public record. Detainees have alleged that interrogators have tried to turn them against their lawyers.
"I think it has really crossed the line," said Washington lawyer Tom Wilner, who represents 12 Kuwaiti detainees. "The government has taken the attitude that the law is an impediment you have to avoid."
The Pentagon adamantly denies it has interfered with lawyer-client relationships. It says the other steps are not designed to hamper prisoners' legal rights and have been subject to court oversight.
"Simply put, these procedures exist to protect national security," said a Defense Department spokesperson.
The prison was opened in 2002 as a repository for those captured in the war in Afghanistan and its aftermath. The Bush administration said they were entitled to "humanitarian" treatment but were not protected by the Geneva Conventions or U.S. law. Soon after, lawyers for a few detainees' families filed court cases seeking writs of habeas corpus -- the centuries-old power that allows a judge to review the legality of a detention. The Bush administration said the courts had no jurisdiction, but a 6-3 Supreme Court majority disagreed.
Government resistance began the very next day, when the Justice Department told the trial judge handling the cases that it wasn't sure lawyers had a legal right of access to their clients at Guantanamo. She eventually ruled that they did, but it was Labor Day -- two months after the Supreme Court ruling -- when the first lawyer got to Guantanamo. That fight set the tone.
Legal Catch 22
The government's position: The Supreme Court gave prisoners the procedural ability to file court petitions but not any substantive rights to assert once they got there. It argues the military tribunals resolved all questions on whether prisoners were properly held, and it now wants to dismiss all the court petitions. That key issue is before an appeals court.
Detainee lawyers, on the other hand, say the government has taken an absurd view of the Supreme Court ruling and meanwhile has wrongly kept the fate of hundreds of men in the hands of tribunals answerable to the Pentagon. The tribunal hearings, they say, form a key backdrop to the problems the lawyers have encountered and show why the government is resisting intrusion by neutral judges.
In Ahmed's case, for example, he was accused of having wielded an AK-47 as a guard at Osama bin Laden's personal airport. He told the tribunal it was completely false, according to a transcript, but wasn't told who accused him. Later, in an unusual step, Ahmed's military personal representative (an officer assigned to prepare each detainee for his hearing) attached a statement indicating a prime accuser was a camp snitch who had lied repeatedly to get preferable treatment.
"Had the Tribunal taken this evidence out as unreliable," the officer wrote, "then the position we have taken is that a teacher of the Quran (to the Taliban's children) is an enemy combatant (partially because he slept under a Taliban roof)."
The Pentagon declined to comment on specific cases.
Ahmed's case and others, lawyers say, reflect fundamental problems. Prisoners learn only general charges, while the specifics on which panels rely are classified. They can't cross-examine or insist on witnesses.
"The tribunals," said Scott Sullivan, the lawyer for another group of Yemenis, "are all about one side of the story."
While they believe such cases show fair hearings can occur only in courts, prisoner lawyers complain that the government has deployed an array of practical hurdles to make it as hard as possible for them to help their clients.
Lawyers, for example, have to wait weeks and months for security clearances. Any materials they want to bring to a detainee -- legal papers, introductions from families -- have to be submitted for military screening and sometimes are prohibited or redacted. Family correspondence has been banned as "non-legal" material, and some lawyers believe that's because access to it is a useful carrot in interrogations.
Dictionary as spy tool?
Some restrictions, lawyers complain, are petty. Translation dictionaries to help clients understand English legal filings have been deemed a security risk because they might help prisoners collect information.
"It's hard to imagine what material espionage advantage a small, clumsy dictionary could conceivably provide," noted Baher Azmy, lawyer for Turkish detainee Murat Kurnaz, in a January e-mail exchange with a Justice Department lawyer.
Once at Guantanamo, it takes the lawyers an hour each way to reach interview rooms. They can't use the Internet connection nearby. Everything clients say is presumed to be classified. Notes must be turned over to guards, and they are sent to a Pentagon facility in Virginia. At least once, interview notes were lost en route.
Until the information is reviewed and cleared by a military team, the lawyers say, they can't discuss it with anyone without security clearance or use it to write motions in their office. Lawyers from around the country all have to go to Virginia to review notes and write motions. Lawyers say decisions about what to clear can take weeks and don't always involve real security concerns.
For example, Muneer Ahmed, an American University law professor representing Canadian detainee Omar Khadr, was told by his client of severe mistreatment at Guantanamo. In Virginia, he says, the military refused to declassify all 20 paragraphs in his notes about alleged abuse. He challenged the practice, and finally, in January, the reviewers began to declassify such claims, allowing lawyers to go public. The episode convinced Ahmed the process is "a sham."
All legal correspondence to and from Guantanamo follows a similar, time-consuming route through Virginia. Complaints -- about guards inspecting legal papers or denial of medical treatment -- often are stale by the time they arrive, lawyers say.
Brent Mickum, a Washington lawyer, said it took him six weeks late last year to receive letters from a Jordanian client complaining that he was put in isolation because he wanted to pass on the names of five other prisoners who wanted lawyers.
"My client says he's been thrown into isolation for doing something that shouldn't be against the rules, and it's taking me well over a month to find out about it," Mickum said.
Claims of stonewalling
While client correspondence is delayed, lawyers say, getting information from the military has been even harder. Some say that despite security clearances, they haven't gotten classified evidence used by tribunals. Others haven't been able to get client medical records that might document abuse.
"You kind of wonder whether we're all working from the same Constitution," says Boston lawyer Rob Kirsch. His firm filed a freedom-of-information suit to try to get medical records on six Bosnian clients who claim abuse.
Some of the most serious allegations focus on interference with the lawyer-client relationship. Several lawyers say prisoners have told them that guards and interrogators have looked at private legal papers, questioned them about their meetings with lawyers and suggested that inmates with lawyers will wait longer to get out. Wilner, in one court filing, alleges that an interrogator asked a Kuwaiti client, "Did you know your lawyers are Jews?"
The Defense Department adamantly denies that and other claims of intrusion into lawyer-client relationships. Other measures, it says, are overseen by courts and designed to ensure safety from dangerous men, not to hamper lawyers.
"It would be irresponsible for the Department of Defense to fail to take measures to ensure that the detainees are not a threat ... or that classified information is not inadvertently released," said the Defense spokesperson.
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