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<font size=3><a href="http://www.counterpunch.org/" eudora="autourl">
http://www.counterpunch.org/<br><br>
</a></font><font face="Times New Roman, Times" size=4><b>July 25,
2007<br><br>
</font><h1><font face="Times New Roman, Times" size=5><b>Court Demands
Access to "Classified" Evidence, But Gags Lawyers<br><br>
<br>
</i></font><font face="Times New Roman, Times" size=5 color="#990000">
Gains and Losses at
Guantánamo</b></font></h1><font face="Times New Roman, Times" size=5>By
ANDY WORTHINGTON<br><br>
</font><font face="Verdana" size=6 color="#990000">L</font>
<font face="Verdana" size=2>ast 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.<br><br>
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.<br><br>
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."<br><br>
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.<br><br>
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.<br><br>
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.<br><br>
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."<br><br>
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."<br><br>
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."<br><br>
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.<br><br>
Note: For a startling insight into the emptiness of the
"classified" evidence against detainees, read
<a href="http://www.huffingtonpost.com/h-candace-gorman-/secrets-of-the-war-crimin_b_34505.html">
this article by Candace Gorman</a>, lawyer for Libyan detainee Abdel
Hamid al-Ghizzawi.<br><br>
<b>Andy Worthington</b>
(<a href="http://www.andyworthington.co.uk/">www.andyworthington.co.uk</a>
) 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).<br>
He can be reached at:
<a href="mailto:andy@andyworthington.co.uk">andy@andyworthington.co.uk</a>
<br><br>
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