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<a href="http://www.counterpunch.org/worthington09272007.html" eudora="autourl">
http://www.counterpunch.org/worthington09272007.html<br><br>
</a></font><font face="Times New Roman, Times" size=4><b>September 27,
2007<br><br>
</font><h1><font face="Times New Roman, Times" size=5><b>Lawyers are
Denied Access to Detainees, and the Military Commission Show Trials
Stumble Back to Life<br><br>
<br>
</i></font><font face="Times New Roman, Times" size=5 color="#990000">A
Bad Week 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">O</font>
<font face="Verdana" size=2>ne 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 <i>Groundhog
Day</i>, 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
<i>Rasul v. Bush</i>, 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-<i>Rasul</i> legislation, the Detainee Treatment Act of
2005 hit a brick wall last Thursday.<br><br>
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."<br><br>
That this is possible, 39 months after the Supreme Court ruled
decisively, in <i>Rasul v. Bush</i>, 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. <br><br>
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.<br><br>
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. <br><br>
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."<br><br>
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."<br><br>
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. <br><br>
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.<br><br>
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."<br><br>
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. <br><br>
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 <i>GQ</i> reporter, "I think things have been done to
people that under any definition except this administration's very narrow
one would be torture."<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
'<a href="http://www.amazon.com/exec/obidos/ASIN/0745326641/counterpunchmaga">
The Guantánamo Files: The Stories of the 774 Detainees in America's
Illegal Prison'</a> (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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