[Ppnews] Gains and Losses at Guantánamo

Political Prisoner News ppnews at freedomarchives.org
Wed Jul 25 10:53:24 EDT 2007


July 25, 2007

Court Demands Access to "Classified" Evidence, But Gags Lawyers

Gains and Losses at Guantánamo


Last Friday, the day after a craven/comatose 
Senate rejected even the merest mention of plans 
to transfer Guantánamo detainees to prisons on 
the US mainland, judges in the Court of Appeals 
for the District of Columbia Circuit advanced the 
detainees' faltering legal status by ordering the 
government to hand over classified information 
relating to them, frustrating attempts by the 
Department of Justice to insist that the court 
should only be given the information included in 
their hearings at Guantánamo, and not, as the New 
York Times described it, the "more expansive" 
information the government might have collected on a detainee.

The court's decision relates to the first cases 
filed under a provision in the Detainee Treatment 
Act of 2005 for "limited appeals court review" of 
the tribunals at Guantánamo (the Combatant Status 
Review Tribunals), which were convened to assess 
whether or not the detainees had been correctly 
designated as "enemy combatants," and which have 
been widely condemned as kangaroo courts, because 
the detainees were not allowed legal 
representation, and were not allowed to either 
see or hear the "classified evidence" against them.

Noting, as the Times put it, that "Congress said 
the appeals court's review of the combatant 
status hearings was limited to determining 
whether the Pentagon followed its own procedures, 
and whether an enemy combatant finding was 
supported by a preponderance of the evidence," 
the appeal court judges said that a meaningful 
review of the tribunals would not be possible 
"without seeing all the evidence, any more than 
one can tell whether a fraction is more or less 
than half by looking only at the numerator and 
not the denominator." Writing rather less 
obliquely, the judges explained, "Counsel [the 
government] simply cannot argue, nor can the 
court determine, whether a preponderance of the 
evidence supports the Tribunal's status 
determination without seeing all the evidence. 
Therefore, we must presume counsel for a detainee 
has a 'need to know' all Government Information 
concerning his client, not just the portions of 
the Government Information presented to the Tribunal."

Sabin Willett, a lawyer who represents six 
Chinese Muslim detainees in Guantánamo (and whose 
case was one of those considered by the Court of 
Appeals), called the ruling "a resounding 
rejection of the government's effort to hide the 
truth," but what's perhaps more interesting, in 
the long run, is whether the "more expansive" 
evidence concealed by the government will be 
anything more than a mirage. It has long been 
known that the unclassified "evidence" against 
the majority of the detainees consists of almost 
every shred of hearsay and of false allegations 
obtained through bribery, coercion and torture 
that the government could muster, and in the 
murmurs that have occasionally seeped out after 
lawyers have reviewed the "classified evidence," 
the most shocking revelation about the Pandora's 
Box of "classified evidence" is that it contains 
nothing of substance whatsoever.

Readers should also note, however, that the 
appeal court's decision includes what the Times 
referred to as "significant victories for the 
government"; in particular, a decision "allowing 
the Pentagon to limit the subjects that the 
lawyers can discuss with detainees and 
authorizing special Pentagon teams to read the 
lawyers' mail and remove unauthorized comments." 
This is disturbing news. Ever since lawyers were 
first allowed access to the detainees in the wake 
of the Supreme Court's verdict in Rasul v. Bush 
in June 2004, the administration has done 
everything in its power to disrupt the process, 
from intimidating prisoners to obstructing the lawyers themselves.

One lawyer noted that several prisoners told him 
"they had been interrogated by people who claimed 
to be their lawyers but who turned out not to 
be," the recently released detainee Juma 
al-Dossari reported that several interrogators 
told him that his lawyers were liars, and Fouad 
al-Rabia, a Kuwaiti who is still held in 
Guantánamo, was told that "if he complained to 
his lawyers about conditions at Guantánamo Bay he 
would be kept there for life." As long ago as 
October 2004, US District Judge Colleen 
Kollar-Kotelly, responding to lawyers' 
complaints, ordered the Pentagon to stop 
eavesdropping on lawyer-client conversations, 
which she described as a "bedrock" American 
principle, and in the last year the pressure on lawyers has increased markedly.

In the wake of the suicides of three men in 
Guantánamo in June 2006, the authorities 
illegally confiscated large amounts of 
lawyer-client correspondence, and, outrageously, 
accused Clive Stafford Smith (whose legal 
charity, Reprieve, represents several dozen 
detainees at Guantánamo) of inciting the 
suicides. Then, in April this year, the 
administration floated proposals that have 
resurfaced in amended form in the appeal court's 
decision on Friday: to restrict lawyers to only 
three meetings with their clients, and to be 
allowed to read their correspondence. In a court 
filing, the Department of Justice alleged that 
attorney access via the mail system had "enabled 
detainees' counsel to cause unrest on the base" 
by informing detainees about "military operations 
in Iraq, activities of terrorist leaders, efforts 
in the War on Terror, the Hezbollah attack on 
Israel and abuse at Abu Ghraib prison," a claim 
which led Barry M. Kamins, the President of the 
New York City Bar association, to write to 
Attorney General Alberto Gonzales, declaring, 
"This is an astonishing and disingenuous 
assertion," and to point out that "many detainees 
have been held in solitary confinement for 
prolonged periods and have lost hope of a fair 
hearing to demonstrate their innocence."

Although the plans appeared to have been dropped, 
after an outcry by legal groups and complaints in 
Congress, when Rear Admiral Harry H. Harris, the 
commander of Guantánamo, conceded that they were 
measures drawn up in the wake of the suicides 
that were "no longer warranted," and the 
Department of Justice admitted that it was "no 
longer seeking to incorporate a three-visit 
threshold for the number of counsel visits," the 
cases on Friday brought them lumbering back to 
malignant life. Here, once more, were the 
allegations of lawyers fomenting unrest by 
writing about current affairs, and the 
government's assertions that "such information 
can 'incite detainees to violence' or cause 
'unrest' such as a riot, hunger strike, or 
suicide ­ as, indeed, it has done in the past."

While the lawyers insisted that, as established 
by a legal precedent, the attorney-client 
privilege was intended to "encourage full and 
frank communication between attorneys and their 
clients and therefore promote broader public 
interests in the observance of law and the 
administration of justice," their assertions 
were, rather disturbingly, overruled by the 
judges, who, "[w]ithout expressing any view as to 
whether the attorney-client privilege applies in 
this context," agreed with the government that 
"past breaches" by "some counsel for detainees" 
justified the government's proposal to "narrow 
the topics about which all counsel may correspond 
with a detainee and to hold all counsel 
accountable by screening the legal mail they send to their detainee clients."

The Court of Appeals is to be applauded for its 
demands that the government release all 
information relating to the detainees, but its 
evidence-free backing of the government's claims 
that lawyers have stirred up trouble in 
Guantánamo in the past, and its approval of plans 
to limit the subjects available for discussion 
between lawyers and their clients, and to employ 
human snooper dogs to monitor their mail, should 
be resisted as yet another shabby attempt by a 
paranoid administration to undermine the 
"bedrock" American principle of lawyer-client 
confidentiality, and to prevent detainees from 
exercising what, in some cases, is their only 
lifeline to sanity: a meeting with a human being 
who is not a part of the military machine that 
has kept them imprisoned without charge or trial for five and a half years.

Note: For a startling insight into the emptiness 
of the "classified" evidence against detainees, 
article by Candace Gorman, lawyer for Libyan detainee Abdel Hamid al-Ghizzawi.

Andy Worthington 
is a British historian, and the author of 'The 
Guantánamo Files: The Stories of the 774 
Detainees in America's Illegal Prison' (to be 
published by Pluto Press in October 2007).
He can be reached at: 
<mailto:andy at andyworthington.co.uk>andy at andyworthington.co.uk

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