A Legal Limbo

Mischa Gaus April 12, 2006

Abdul Hamid Abdul Salam Al-Ghiz­za­wi is frantic.

He is in very poor health, which dete­ri­o­rates day after day (details to be dis­cussed with u in per­son). He has a fam­i­ly that is in des­per­ate need of him.”

The frag­ment, tak­en from a page hand­writ­ten by anoth­er detainee, is the only record of Al-Ghiz­za­wi to emerge from the Guan­tá­namo Bay prison camp in four years. For Can­dace Gor­man, a Chica­go attor­ney who took his case pro bono, it pro­vides the slight­est bit of hope that he may some­day emerge as well. 

A Libyan, Al-Ghiz­za­wi was invis­i­ble until he passed word through oth­er detainees that he want­ed a lawyer. Dozens of new detainees became known this way last year. Gor­man took his case in November.

The fact that I’ve been rep­re­sent­ing my client for four months and yet I can’t com­mu­ni­cate with him in any way is just ludi­crous,” Gor­man says. 

Gor­man can­not see or talk with Al-Ghiz­za­wi with­out fil­ing a pro­tec­tive order with D.C.’s fed­er­al dis­trict court – an agree­ment that warns that she can be pros­e­cut­ed for shar­ing clas­si­fied infor­ma­tion. The Jus­tice Depart­ment is refus­ing to let those agree­ments be filed, because cas­es cur­rent­ly before the D.C. appeals court and the Supreme Court–Al Odah v. Unit­ed States and Ham­dan v. Rums­feld–will affect what rights and legal venues detainees can access. The Supreme Court decid­ed two years ago that detainees can chal­lenge their deten­tion, but until the lat­est cas­es are cleared every­thing else – includ­ing Gorman’s emer­gency peti­tion to see Al-Ghiz­za­wi – has been sidelined.

Per­verse­ly, Al-Ghiz­za­wi may be lucky. Recent dis­clo­sures of detainee records show not all even have habeas peti­tions filed on their behalf yet, says Bar­bara Olshan­sky, assis­tant legal direc­tor of the Cen­ter for Con­sti­tu­tion­al Rights, which is coor­di­nat­ing their legal fight. These motions allow pris­on­ers to chal­lenge the legal­i­ty of their detention. 

For these pris­on­ers, legal aid may come too late. The Detainee Treat­ment Act, passed late in 2005 as a rid­er to a mil­i­tary appro­pri­a­tions bill, strips detainees of their right to chal­lenge their deten­tion in court. The admin­is­tra­tion is argu­ing that it retroac­tive­ly removes habeas rights for all detainees.

Even for those few lawyers who had already filed pro­tec­tive orders, gain­ing access to their clients is dif­fi­cult. Some detainees have told lawyers they meet in the same rooms in which they are tor­tured. Meet­ings are video­taped, and lawyers’ notes are stripped from them before they exit the prison door. The notes are stamped Clas­si­fied,” and released weeks or months lat­er with redactions. 

Scraps of infor­ma­tion reach Gor­man this way, includ­ing the fact that Al-Ghiz­za­wi has a broth­er who is a professor.

Bush admin­is­tra­tion offi­cials called Guan­tá­namo detainees the worst of the worst.” But a Seton Hall law school team exam­ined the redact­ed gov­ern­ment fil­ings against 517 detainees and found that slight­ly more than half have not been accused by the U.S. gov­ern­ment of a sin­gle hos­tile act. The report also found that just 7 per­cent were appre­hend­ed by U.S. forces. 

Instead, almost all detainees were turned over to U.S. cus­tody by third par­ties, most­ly Pak­istani author­i­ties and boun­ty-hunters enticed by pam­phlets spread through the Mid­dle East promis­ing enough mon­ey to take care of your fam­i­ly, your vil­lage, your tribe for the rest of your life.” 

They just paid the cash and got the per­son,” says John Ander­son, an ex-Marine reservist and lawyer at Suther­land Asbill & Bren­nan whose firm rep­re­sents five Yemeni detainees. In many cas­es I think they were won­der­ing what they had on their hands, and had no way of find­ing out.” 

What you will see [in Guan­tá­namo] are men who are farm­ers, wood­work­ers,” Olshan­sky says. They are the poor­est peo­ple in the world. There’s not going to be a huge dossier on them.”

The appeals court is sched­uled to hear its detainee case in March, and the Supreme Court deci­sion is due in June. So Gor­man – and Al-Ghiz­za­wi – wait. She con­sid­ers trav­el­ing to Libya to find his broth­er. Reluc­tant­ly she says, That’s for anoth­er day.”

Mis­cha Gaus is an edi­tor of Labor Notes mag­a­zine, the largest inde­pen­dent union pub­li­ca­tion in the Unit­ed States.
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