[Ppnews] A Bad Week at Guantánamo

Thu Sep 27 13:18:20 EDT 2007

http://www.counterpunch.org/worthington09272007.html

September 27, 2007

Lawyers are Denied Access to Detainees, and the 
Military Commission Show Trials Stumble Back to Life

A Bad Week at Guantánamo

By ANDY WORTHINGTON

One thing you learn when studying Guantánamo is 
that nothing can ever be taken for granted, and 
the events of the last week have demonstrated, 
yet again, that this is the case. As lawyers for 
the Guantánamo detainees prepare, like a legal 
version of Groundhog Day, for a climactic Supreme 
Court showdown with the administration over the 
rights of the detainees to challenge the basis of 
detention (replaying scenes which were first 
enacted over three years ago, in Rasul v. Bush, 
but which were derailed in last fall's Military 
Commissions Act), another version of this 
seemingly endless saga  focusing on similar 
challenges, in the District Court, to another 
dubious piece of post-Rasul legislation, the 
Detainee Treatment Act of 2005  hit a brick wall last Thursday.

In Washington, District Court Judge Ricardo 
Urbina dismissed 16 lawsuits, challenging the 
indefinite imprisonment of at least 40 detainees 
in Guantánamo, which had the knock-on effect of 
denying lawyers access to their clients. Crowing 
smugly, Justice Department lawyer Andrew Warden 
declared after the decision, "In light of this 
development, counsel access (both legal mail and 
in-person visits) is no longer permitted."

That this is possible, 39 months after the 
Supreme Court ruled decisively, in Rasul v. Bush, 
that the detainees had the right to challenge the 
basis of their detention, and that habeas corpus 
was, as Justice John Stephens so memorably 
described it, "a writ antecedent to statute 
throwing its roots deep into the genius of our 
common law," demonstrates, succinctly, how the 
Bush administration has, for the last six years, 
shamed the "genius" of the American legal system 
by reducing it to a game of legislative ping-pong.

Although lawyers for the detainees remain 
confident that the Supreme Court will rule in the 
detainees' favor (probably in spring 2008), this 
is a terrible setback for the detainees in 
question. Imprisoned without charge or trial for 
over five and a half years, they have no other 
contact with the outside world apart from through 
the minimal ministrations of the International 
Committee of the Red Cross, and their lawyers are 
often their only lifeline. This process is made 
that much harder when, year after year, the 
lawyers are driven to admit to their clients 
that, despite widespread opposition to the 
existence of Guantánamo, their attempts to bring 
them justice  a day in court before a judge who 
can impartially weigh the evidence set before him 
by the government  are repeatedly obstructed by the administration.

In all likelihood, Judge Urbina's ruling will not 
shut down the lawyer-client relationship 
entirely. As reported by the Associated Press, 
Andrew Warden "outlined a series of legal steps 
that would be required before the attorneys could 
resume contact with the detainees." After jumping 
through hoops and being generally belittled, more 
restrictive arrangements will be arranged with 
the lawyers, but they may come too late for the 
Libyan detainee Abdul Rauf al-Qassim. Cleared by 
a military administrative board after five years 
at Guantánamo, al-Qassim, a deserter from the 
Libyan army, had spent a decade living in 
Afghanistan and Pakistan without raising arms 
against anyone, and was kidnapped from a house in 
Lahore, Pakistan, in May 2002, after fleeing 
Afghanistan with his pregnant Afghan wife.

Al-Qassim has spent most of this year fighting 
cynical attempts by the administration to return 
him to the country of his birth, where he has 
legitimate fears that he will be tortured. Wells 
Dixon, one of his lawyers at the Center for 
Constitutional Rights, explained that he would 
"most likely not be able to complete [the new] 
measures in time for a scheduled visit" with 
al-Qassim next month, which he described as 
"crucial," because he was "in the midst of trying 
to prevent the government from transferring [him] 
back to Libya. In measured tones, he added, "This 
is just the latest example of the government's 
efforts to frustrate counsel access to 
detainees." In a press release, another CCR 
attorney, Shayana Kadidal, spelt out al-Qassim's 
plight in stronger terms: "We need to remember 
that this is a man the government has cleared for 
release  as close to a statement of innocence as 
the government will ever issue. Abdul Rauf should 
never have been taken to Guantánamo in the first 
place, and the courts should not allow the 
government to 'disappear' him into Libya in order to cover up its own mistake."

In a second, and far more shocking development, 
the Military Commissions at Guantánamo  the 
widely derided show trials, which purport to 
provide justice, while relying on secret evidence 
obtained through torture  stumbled back to life 
on Monday. Condemned as illegal under US law and 
the Geneva Conventions by the Supreme Court in 
June 2006, the Commissions were reinstated in the 
Military Commissions Act last fall, but were 
derailed again three months ago, when the 
military judges appointed to preside over the 
cases of child soldier Omar Khadr and Salim 
Hamdan, one of Osama bin Laden's chauffeurs, shut 
down the trials, arguing, correctly, that the MCA 
had mandated them to try "illegal enemy 
combatants," whereas the system that had made 
them eligible for trial  the Combatant Status 
Review Tribunals, "administrative" hearings which 
also relied on secret evidence obtained through 
unknown means  had only declared them to be "enemy combatants."

After a farcical interlude, in which the 
administration declared petulantly that it would 
appeal the judges' decisions, and was then 
pilloried when it transpired that the appeals 
court in question had not yet been established, 
the Court of Military Commissions Review convened 
a month ago in a borrowed courtroom near the White House.

Announcing their verdict on Monday, the court's 
three military judges  all appointed by the 
Pentagon  agreed with Khadr's military judge, 
Col. Peter Brownback, that Khadr's classification 
as an "enemy combatant" at his Combatant Status 
Review Tribunal in Guantánamo "failed to meet the 
requirements for jurisdiction set forth in the 
Military Commissions Act," but explained that 
Brownback had "erred" in ruling that a CSRT was 
required to determine that Khadr was an "unlawful 
enemy combatant" as a pre-requisite for bringing 
charges against him under the Military 
Commissions Act. They added, moreover, that he 
had "abused his discretion in deciding this 
critical jurisdictional matter without first 
fully considering" the government's evidence.

The decision was immediately condemned by human 
rights activists. Jameel Jaffer, the director of 
the American Civil Liberties Union's national 
security project, declared, "This ruling may be a 
step forward for the military commissions but 
it's a step backwards for the rule of law. While 
there are prisoners at Guantánamo who should be 
tried for war crimes, they should be tried under 
rules that are fair and that will be perceived as 
fair. The current rules fail this test."

More importantly, the verdict was also condemned 
by Khadr's defense lawyers, led by Lt. Cmdr. 
William Kuebler, the principled military 
attorney, who, in the past few months, has 
described the Commissions as rigged, ridiculous, 
unjust, farcical, a sham, and a lawless process. 
As soon as Pentagon spokesman Bryan Whitman 
announced that Khadr's trial had been revived, 
and that it was the Pentagon's intention "to move 
out in an expeditious manner to get the military 
commission cases to trial," Kuebler responded by 
saying that Khadr's legal team would appeal, 
asking a civilian court in Washington to block 
the trial. "This court," Kuebler explained, 
referring to the Court of Military Commissions 
Review, "had the chance to bring some degree of 
legitimacy to an otherwise lawless process," 
adding, pointedly, "It failed to do so." In a 
statement, he and Khadr's other lawyers  Dennis 
Edney and Nathan Whitling  accused the military 
judge of "prohibited off-the-record 
coordination," and explained that the date set by 
the Pentagon for Khadr's trial to begin  October 
11  failed to allow them enough time to 
challenge the case. "It is the latest evidence of 
the government's determination to rush forward 
with the flawed military commission process at 
breakneck speed, disregarding whatever rights of 
the accused that may get in the way," Kuebler declared.

Expect more fireworks to follow from the latest 
in an increasingly long line of 
government-appointed military lawyers to have 
turned on their masters in the most principled 
manner possible. Those in any doubt that Lt. 
Cmdr. Kuebler means what he says should recall 
that in June he explained to a GQ reporter, "I 
think things have been done to people that under 
any definition except this administration's very narrow one would be torture."

Andy Worthington 
(<http://www.andyworthington.co.uk/>www.andyworthington.co.uk) 
is a British historian, and the author of 
'<http://www.amazon.com/exec/obidos/ASIN/0745326641/counterpunchmaga>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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