Concern about Restricted Access to Lawyers for Guantanamo Detainees

Re: Concern about Restricted Access to Lawyers for Guantanamo Detainees

To: USA Department of Justice

From: Gail Davidson

Date: 2007-04-30

LRWC is writing to express concern about submissions made by the Department of Justice in Bismullah v. Rumsfeld (06-1197), et. al before the United States Court of Appeals for the District of Columbia Circuit. Specifically, The U.S. Department of Justice has requested, in that case, that the Court of Appeals severely restrict the amount and quality of access of lawyers to their clients. The clients are foreign nationals who have been designated as “enemy combatants” under the Detainee Treatment Act by the Combatant Status Review Tribunal (CSRT), a division of the military that makes enemy combatant determinations without permitting the accused to have access to counsel or to the “evidence” (assuming that such exists) against him.

Preliminarily, we note the obvious, that the CSRT is not a genuine court or anything like it, but is merely a bureaucratic construct operating within the Department of Defense, and not genuinely answerable (except as to whether it successfully contends that it has followed its own procedures) to any genuine court (i.e., a court under Article III of the US Constitution). We further note that both the Detainee Treatment Act and the Military Commissions Act (which gives the secretary of defense or his designate the power to name anyone as an “alien enemy combatant” (whether they are, in fact, an alien or not) without having to be concerned about genuine review, again, by a genuine court) were passed by Congress and signed by the President.

Both the New York City Bar and the Karen J. Mathis President of the American Bar Association have expressed similar concerns with the Department of Justice proposals.

The D.C. Court of Appeals held in related cases (including the most prominent, Boumediane v. Bush (05-5062, 05-5063) that aliens being held at Guantánamo Bay had no rights under the U.S. Constitution (476 F.3d, at p. 992); holding that the base at Guantánamo is not the property of the U.S. but is held pursuant to a lease from Cuba, a lease which the U.S. claims (and U.S. courts have held) remains in perpetuity. For some purposes, the position of the US Government holds that Guantánamo is a foreign country; for other purposes, it is alleged to be an area that is entirely subject to U.S. jurisdiction. The “no rights under the U.S. Constitution argument” has been rejected by the US Supreme Court in 2004 the case of Rasul v. Bush (542 U.S. 466). The Court in that case held that the US has complete sovereignty over Guantánamo, and that aliens may invoke the authority of U.S. federal courts.

The hundreds of detainees held at Guantánamo are the specific focus of the Government’s Brief for Respondent Addressing Pending Preliminary Motions, submitted April 9, 2006, for hearing to be held on May 15, 2007. (DOJ submissions) In the brief the United States Government addresses a matter that strikes at the heart of the attorney-client relationship and, indeed at the heart of what lawyers do, and their function in a free society.

The Government’s position as to the matter of rights is set forth on page 24 of the DOJ submissions; it is the official position of the United States Government that “not only is there plainly no right to counsel under the Sixth Amendment in these circumstances, the Due Process Clause [of the Fifth Amendment] also cannot here provide such a right or require other procedures.” The detainees have no rights, and that includes no right to counsel. (DOJ submissions, p. 24.) Rather, any “rights” detainees have are only those that the Congress and President give them pursuant to the Detainee Treatment Act. (DOJ submissions, p. 29.); in truth, there are, in that view, no “rights” at all, but only privileges.
Lawyers may represent detainees at Guantánamo, provided that they are, “security-cleared,” meeting certain security requirements satisfactory to the Government. Even so, those defense lawyers who pass this test still are not given access to the evidence that the prosecution has, and may be excluded from certain proceedings. We could continue. As you know, during the earlier, CSRT process, the detainee has the assistance of a “personal representative,” not a lawyer; this “personal representative” is a military officer, answerable to the chain of command within his/her service.

Yet the Government seeks now to further restrict defense lawyers in their representation of Guantánamo detainees, and that is the subject of the filing that the Government has made, looking toward a hearing on the matter on May 15, 2007. The Government now alleges that defense lawyers have “caused unrest” at Guantánamo, and “something” must be done; hence the proposals.

Why, according to the Government, are these extra-restrictive measures needed? It is alleged that in the past during conferences with their clients at Guantánamo, lawyers have discussed various things such as “military operations in Iraq, activities of terrorist leaders, and abuse at Abu Graib prison, among other things. Of course, we do not know if these allegations are true because all we have are statements from people at Guantánamo who have submitted reports . . . who will never be asked a question under oath, in open court. Also referenced in the filing made by the Government are hunger strikes, suicides, and riots; the Government’s Brief implies that “the lawyers” are somehow contributing to the atmosphere where those things are occurring.

Under the proposal, the Government will continue to have the power to read through and seize mail between a lawyer and client, but now the definition of “attorney-client mail” will be narrowed. The lawyer will be permitted one visit to establish an attorney-client relationship with a potential client, and will be permitted to have only three visits thereafter. (Government’s Brief, p. 17.). After all, “the military is entitled to the highest level of deference in establishing and applying procedures used in connection with the detention of the enemy during wartime.” (Government’s Brief, p. 18.). The Brief even maintains the contention that detainees at Guantánamo were captured “on the battlefield” (Government’s Brief, p. 15.); but how would we know this, or anything else? After all, the evidence is secret.

Lawyers Rights Watch Canada views these developments with alarm. The permissible role of lawyers within ‘the Guantánamo system” has already been severely curtailed by the Detainee Treatment Act, the Military Commissions Act, and – apparently – the whim of Government authorities.; the further restrictions requested in the Government Brief wouldcompletely destroys any possible legitimacy of what purports to be a system of adjudication at Guantánamo.

LRWC calls on the Department of Justice and the U.S. Government to withdraw these proposals. Withdrawal of these restrictions would be a first step to re-introducing the due process required by law and demanded by justice and decency to all proceedings to determine the rights of and charges against Guantánamo Bay prisoners. Guantánamo