Yesterday morning in Washington, I was lucky enough to witness oral arguments in the latest chapter in the Guantánamo litigation saga. Jeff Lang of Debevoise & Plimpton and Sabin Willett of Bingham McCutchen, lawyers for eight of the detainees, argued before the federal Court of Appeals in two of the first cases filed under the provisions of the Detainee Treatment Act of 2005 (DTA) allowing detainees to challenge their designation as "enemy combatants." (The cases are Bismullah v. Gates, No. 06-1197, and Parhat v. Gates, No. 06-1397.)
The argument concerned procedural ground rules, not the facts or merits of the individual detainees' cases. Two sets of issues were argued. First, the Justice Department is seeking changes to the existing protective order which has for the last two years governed attorney access to the base and communications with clients. The new provisions would, among other things, allow the government to read all mail and written materials attorneys wish to share with their clients. Second, the government is opposing the detainees' lawyers' efforts to see and challenge secret evidence relied on by the government's Combatant Status Review Tribunal (CSRT) panels that made the "enemy combatant" designations, and to discover whether the government had exculpatory information that was never presented to or considered by the those military panels.
The government's briefs claimed that it needs to read attorney-client communications because lawyers have "presented security issues" at the base by giving detainees information about, inter alia, political developments that might affect Congress, or White House OLC memos concerning official torture policies, information it says could "incite detainees to violence." (The government also complained that lawyers have asked detainees questions about their treatment in order to pass the answers to members of the media.) The detainees' reply brief pretty thoroughly demolished these claims about incitement:
"It is not imprisonment without charge, it is not solitary confinement of men approved for release, it is not five years in cages, it is not ridicule while men pray that causes unrest--it is lawyers. ... Counsel ... have twice implored hunger-striking clients to eat--and twice they have agreed. ...[M]any habeas counsel have urged restraint in the face of inhuman conditions, and this has helped preserve calm. ...[T]o say that any lawyer ... has ever caused unrest [at the base] is simply ignorant."
Much of the government's complaining concerned the fact that lawyers have shared news of the political situation in the detainees home countries with their clients, news the government claims is irrelevant to the case and thus improper to share with the detainees as attorney-client materials. But, as Sabin Willett told the court, "the government [wants to decide for us] which topics we can cover with our clients, [but], in this case, [appropriate] topics include which countries in 2007 make sense as potential candidates for asylum. ... I've never had a case where part of my job [as a lawyer] wasn't trying to settle it."
The recently-revised proposed protective order would still cut off attorney visits completely if the detainee refused to sign a government-provided written form authorizing the attorney's representation by the end of the first visit. While Congress authorized actions "by or on behalf of" detainees in the DTA, the government would now demand that every detainee sign during their first visit with a lawyer, or never see the lawyer again -- as Willett put it, ""If we don't get a signature on a form in the first eight hours, the relationship is over." Many detainees are extremely reluctant to sign any document, for fear of being tricked into signing a confession. This understandable trust issue is likely to be exacerbated by the fact that the second sentence of the authorization form the government insists we use says "Because you are an enemy combatant, the United States may continue to detain you."
Near the end of the argument, the government seemingly backed off this claim, asserting (contrary to its briefs) that any similar authorization form (sans all the offending language) would be acceptable. Although the lawyer may have simply been confused, this appeared to be the second last-minute reversal by the government: Originally it had asked the court to cap total number of lifetime visits by attorneys to any one detainee at four. However, on Friday morning, it backed off that extreme request, following an extraordinary admission the day before by base commander Rear Adm. Harry Harris that he had "no issue with habeas visits," a sentiment affirmed on Monday by Maj. Gen. Jack Rives, head of the Judge Advocate General Corps, to the Wall Street Journal.
These admissions shouldn't be surprising. The complaints about disorder wrought by lawyers at the base are really thinly veiled cover for the government's attempt to restore Guantanamo to its former status as a legal black hole, cut off from the scrutiny of the courts or the outside world. Attorney access is what has ended the most brutal forms of physical abuse at the base. Now that the Supreme Court has deferred review of the cases, the government is again seeking to isolate the prisoners from the outside world by cutting off their access to their lawyers.
On the second set of issues, regarding whether we can seek to discover exculpatory information that might have been sitting in the government's files but never presented to the CSRT panel, the panel seemed very sympathetic to the detainees' position. When the government's attorney stated that all "exculpatory information should [already] be in the record," Judge Rogers asked "how would that ever be determined [without discovery]?" and Chief Judge Douglas Ginsburg added "How can [petitioners] assert that something's missing if [it] isn't present? How can there be any meaningful review of the determination if we don't know what we don't know?," adding, in a nice Ollie North reference, "The potted plants to your right [petitioners' lawyers] are not just limited to picking apart" the record the CSRT gives them.
The Center for Constitutional Rights has long maintained that DTA review of the CSRT process is no substitute for the right to habeas corpus and fair hearings that operate under the rule of law. The CSRTs themselves allow the use of secret evidence, torture evidence, and hearsay, and lawyers are entirely excluded from the process. Review of this flawed process in the Court of Appeals is extremely circumscribed. But the clearest illustration of the flaws of the process is the fact that several detainees were exonerated by their CSRT panels, but, instead of being released, were sent back for second or third CSRTs until the military got the result it wanted. New CSRT records released by DOJ shortly in advance of today's hearing show that even more detainees had multiple CSRTs than were previously known of, including one of Willett's clients, a Uighur named Hamad, who Willett represented since July 2005 without realizing -- until the government disclosed it last month -- that he was one of the multiple-hearing victims.
Today is also the deadline for the government to respond to an original habeas petition filed in the Supreme Court by another Guantánamo detainee case, In re Ali (No. 06-1194). Ali Mohammed, the petitioner, is, like the Parhat petitioners, a Chinese Uighur detainee. Government interrogators concluded he "does not represent a threat to" the U.S. and should be released to a country which would give him asylum. His CSRT proceeding likewise found that he was not properly classified as an enemy combatant, but the military ordered that he go through a second CSRT proceeding, which came to the opposite conclusion. It'll be interesting to see what the Supreme Court makes of it -- and whether the government gives them the chance: Five similarly-situated Uighur detainees were summarily sent to a refugee camp in Albania last May on the eve of a deadline for the government to explain to the Court of Appeals why they were still being held.
--May 16, 2007