Locking Attorneys out of Guantánamo

In recent weeks, disastrous court decisions have set back the cause of the hundreds of men and boys languishing in Guantánamo. The U.S. Court of Appeals in Washington D.C. has ruled that the Military Commissions Act (which strips Guantánamo inmates of habeas corpus rights) is a viable law, and the Supreme Court has told us Guantánamo attorneys that we must work within the framework of the Act before the Court will determine whether it is constitutional. The question before us: Can we salvage any of the miniscule progress we have made in the Guantánamo litigation given these disastrous decisions?

The government is using the appellate court decision and the Supreme Court’s inaction to try to keep us habeas attorneys away from our clients. In the coming weeks we will find out if they are successful.

To recap, our since-booted Republican Congress passed the Military Commissions Act (MCA) last October. The law established one-sided procedures for those few individuals who were going to be charged with something at Guantánamo. It also eliminated habeas corpus (the right to challenge unlawful imprisonment in a court of law) for those who were not going to be charged (98 percent of the detainees). Those men will have no recourse but to sit at Guantánamo until they are sent elsewhere. More than 80 men currently languishing in Guantánamo have been cleared for release by the government’s own review boards.

That part of the law – stripping habeas corpus retroactively – is surely unconstitutional. Of course, the Republican Congress didn’t care, and our Supreme Court has said it is too early to review the law. For the Bush administration, this is a stall game. The strategy is to keep the place under lock and key until the next administration, while continuing to attack the attorneys.

The assault on habeas counsel began in January when Cully Stimson, then Deputy Assistant Secretary of Defense for Detainee Affairs, went on a government radio program armed with a list of the big law firms whose attorneys are representing detainees at Guantánamo free of charge. His plan was to publicize the list and ask the corporate clients of those firms to choose between their corporate clients and their Guantánamo pro bono work. Stimson suggested that corporate clients should disengage law firms whose attorneys represented Guantánamo inmates, and even insinuated that firms were receiving money from shadowy (possibly terrorist) sources. The strategy backfired and Stimson was forced to resign. But this incident was only the beginning.

Next in line was the military attorney assigned to represent David Hicks, an Australian who is one of only two men to be charged under the MCA. A plea deal was worked out and Hicks was sentenced to nine months for his ​“terrorist” activities (after more than five years of torture, isolation and other abuses). Since Hicks was given no credit for time served, he languished for five years only to be sentenced to nine months.

Just weeks before Hicks’ commission hearing was set to begin, the chief prosecutor for the Guantánamo military commissions, Col. Morris Davis, went after Hicks’ military lawyer, USMC Major Michael Mori. Davis suggested Mori should be brought up on charges for speaking out against the Bush military commissions. Mori was doing a very effective job of representing his client (as shown by Hicks’ savvy plea deal). He was also spending time in Australia, appearing in the media and doing advocacy work on his client’s behalf. Davis’ message to the military attorneys was loud and clear: If you represent detainees zealously, you do so at your peril.

The government has now launched its latest attack, moving to dismiss all of the Guantánamo cases now pending and changing the rules that have allowed attorneys like me to visit and communicate with our clients. The government has claimed in court that we are fostering unrest and (gasp) acting as a conduit for the media. The government has asked the court to enforce new rules that will grant us only three visits to our clients. Under this new regime, the government would reserve the right to read every communication between Guantánamo inmates and their attorneys.

If the government succeeds, it will put us back in the days when Guantánamo was a legal black hole. We will not be able to discuss our legal and diplomatic strategies in letters because our strategies will be known by the government and sabotaged before they can get off the ground.

However, the scariest development has already occurred. As the government claims in a recent filing: ​“no court has jurisdiction over conditions” at Guantánamo. If no court has jurisdiction, that leaves the Bush administration free to both set the rules and monitor them.