Overdue process

[David Farber <dave () farber net>]

Begin forwarded message:

From: Brian Randell <Brian.Randell () newcastle ac uk>
Date: August 29, 2004 5:38:28 AM EDT
To: dave () farber net
Subject: Overdue process

Dave:

For IP if you wish.

Cheers

Brian


Overdue process
By Isabel Hilton
Isabel Hilton is a writer and broadcaster.

Published in the Financial Times: August 27 2004 20:47 | Last updated:  
August 27 2004 20:47
Find this article at:
http://news.ft.com/cms/s/be3c294a-f65c-11d8-a879 
-00000e2511c8,ft_acl=.html?uuid=be3c294a-f65c-11d8-a879 
-00000e2511c8&ft_acl=

The preliminary hearings opened earlier this week in the first US  
military tribunals since the second world war, held in a specially  
constructed courtroom in Guantanamo Bay, Cuba. More than 700 men have  
been imprisoned in Guantanamo since the camp opened for business in  
early 2002. The four defendants in this week’s proceedings are the only  
ones yet to be charged. They have the distinction of facing legal  
proceedings so controversial that many eminent American and  
international jurists consider them a stain on US justice. If the US  
administration’s will prevails, they will benefit from none of the  
safeguards that are considered essential to a fair trial in US courts.  
They will have no right of appeal against any verdict to an independent  
tribunal and, even if they are found not guilty, may still face  
indefinite detention.

The one asset the four defendants do enjoy is the determination of a  
group of defence lawyers who have fought for more than two years to  
force the secret proceedings in Guantanamo into the open. If it were  
not for those lawyers, and the notable victory they won in the US  
Supreme Court in June, the defendants in Guantanamo this week would  
have no recourse to any hearings beyond the restrictive military  
tribunals they now face. The eventual outcome of that legal victory is  
far from clear and the US administration already appears to be doing  
its best to circumvent it. But the fact that it exists at all is  
remarkable, for when this long fight for justice began, the lawyers  
found themselves all but alone.

Last month, some 70 lawyers - an eclectic mix of radical campaigners,  
human rights activists and members of well-heeled, high-profile firms -  
gathered in New York to discuss strategy in the wake of the US Supreme  
Court’s historic finding in the case of Rasul et al v. George W. Bush -  
that prisoners in Guantanamo did have the right, despite the  
president’s will, to challenge their detention in US courts. That  
decision, handed down on June 28 by a majority of six to three, had  
changed what two years ago had been a discouragingly hopeless cause  
into one full of legal possibility. At the core of the meeting was a  
group that had once been seen as a handful of legal pariahs. Now they  
were beginning to look like a coalition that smart lawyers want to  
join.

The man who had called them together, British lawyer Clive Stafford  
Smith, has had a long training in heavy odds and unpopular causes.  
Stafford Smith is a tall, rangy man in his late 40s whose close-cropped  
hair is beginning to grey. He has devoted the past 20 years to fighting  
death penalty cases in the American south. More than 900 men have been  
executed in the US since 1984, the year that he began. Five of them  
were his clients. Without his vigorous advocacy, the nearly 300  
prisoners he has represented in the past two decades would, in all  
likelihood, also be dead. Sixty per cent of them were eventually found  
not guilty.

It is not the sort of work that makes you popular or rich. Stafford  
Smith’s New Orleans organisation, Justice in Exile, pays all its  
lawyers the same salary - $25,000 a year, recently raised from $18,000.  
But repeated death penalty cases have developed in him two qualities  
that are useful when fighting an unpromising cause: a conviction that  
most death penalty cases are fuelled by hatred as much as by evidence,  
and a belief that every defendant, no matter how unpopular or  
unlikeable, deserves a fair hearing. He got involved, he says, because  
Guantanamo made him angry. “Death penalty work is essentially standing  
between those who hate and those who are hated,” he explains. “But at  
least there are people who oppose the death penalty. This, nobody  
opposed.” The Guantanamo prisoners were in a legal black hole.

There have been detentions in Guantanamo before: the US leased the 45  
square miles of land from Cuba in 1903, ostensibly for use as a naval  
coaling station. The lease recognised Cuba’s continuing sovereignty  
over the base, but gave the US “complete jurisdiction and control”.  
Since the Cuban revolution in 1959, Fidel Castro’s government has  
wanted the base back and has refused to accept rental payments, but the  
lease can only be terminated by mutual agreement - and the US will not  
agree. It has never been used as a coaling station, but in the early  
1990s the US government began to divert Haitian refugees to Guantanamo  
Bay. There they were tested for HIV and those found positive were  
detained until, on June 8 1993, a US district court judge, in an  
excoriating judgment, declared the detentions unlawful.

In 2001, the Bush administration found a new use for the base as a  
warehousing facility for prisoners taken in the “global war on terror”.  
When the Taliban fled Kabul in November 2001, the US dropped leaflets  
in Afghanistan offering a bounty for captured Taliban and al-Qaeda  
fighters. Thousands of men were sold to US forces by Northern Alliance  
forces, (as were the three British detainees released earlier this  
year). Others were detained in Pakistan, and more still were seized as  
far afield as Bosnia and Gambia.

In January 2002, the first prisoners were flown to Guantanamo. David  
Hicks, an Australian captured in 2001 in Afghanistan, allegedly  
fighting for the Taliban, was among them. It was the end of a strange  
trajectory for this small-town boy from a modest family, who had  
allegedly joined the Kosovo Liberation Army in 1999 and then, later  
that year in Pakistan, Laskar-e-Taiba, a militant organisation fighting  
in Kashmir. In 2001, the US government claims, he attended an al-Qaeda  
training camp in Afghanistan. Now, like the others, he found himself in  
a prison that the US administration had deemed was beyond the law.

Under the Geneva Conventions, captured prisoners are entitled to a  
hearing to determine their status. If they are civilians, they should  
be brought before a legal authority. If they are prisoners of war, they  
may be detained but are not obliged to answer questions. But these men  
were designated “enemy combatants” and detained for prolonged  
interrogation.

In a memo dated January 25 2002, the counsel to the president, Alberto  
Gonzales, advised Bush that he had the authority to disregard the  
Geneva Conventions and that doing so “substantially reduces the threat  
of domestic criminal prosecution [of administration officials] under  
the War Crimes Act” for such crimes as “inhuman treatment” and  
“outrages upon personal dignity”. By ruling that the Geneva Conventions  
did not apply, Bush opened the door to interrogation methods that would  
be banned by domestic and international law. And if Guantanamo was  
indeed beyond the law, the men could, in theory, be held there forever.

”Guantanamo was an experiment in two things,” says Richard Bourke, a  
young Australian lawyer who works with Stafford Smith. “In  
interrogation techniques, and in how far you could go before people  
began to object. In 2002, nobody was objecting.” For Bourke, the  
campaign on their behalf was also a lesson in how to take action. In  
early 2002, Bourke had just moved to New Orleans to work for Justice in  
Exile. “One morning I was reading the newspapers and moaning about how  
awful Guantanamo was. I read an article that named Stephen Kenny as the  
lawyer for David Hicks. Clive just said, ‘Why don’t we do something?  
Can you get hold of that guy?’” Bourke and Stafford Smith began to work  
the phones.

”We had no idea at the beginning,” says Stafford Smith, “how  
complicated it was.”

They called, among others, the Centre for Constitutional Rights in New  
York (CCR), a legal NGO whose president, Michael Ratner, had litigated  
on behalf of the Haitians detained in Guantanamo in the early 1990s;  
Joe Margulies, a Minneapolis lawyer who also specialised in death  
penalty work; and two British solicitors, Gareth Peirce and Louise  
Christian, who were acting on behalf of British detainees. They had the  
beginnings of a coalition. Michael Ratner had also called Stephen  
Kenny. A genial Australian lawyer in his 50s, Kenny had read about  
David Hicks in the newspapers. “He was the first detainee to be sent to  
Guantanamo and all that I read about him was that he was supposed to  
have said that he wanted to kill Americans,” he says. “The Australian  
government was saying that he was among the 10 most dangerous men in  
the world. I noticed that the family weren’t saying anything. I knew  
that they wouldn’t know what to do.” Kenny contacted them and asked if  
they wanted a lawyer. “They said they didn’t have any money.” He grins.  
“I told them that I had figured that might be the case.”

In Adelaide, Kenny began to read up on international law and the Geneva  
Conventions. “I needed a writ of habeas corpus against Bush [requiring  
a prisoner to be brought to court to determine whether their detention  
is lawful] and for that I needed a US law firm. Every one I called  
turned me down. They thought I was bonkers. Perhaps it was pretty mad  
in January 2002 to be talking of suing the president on behalf of the  
terrorists. Then I got an e-mail from Michael Ratner at the Centre for  
Constitutional Rights, and Clive Stafford Smith and Richard Bourke got  
in touch.”

CCR operates from an office in lower Manhattan, a few blocks from the  
World Trade Center. On September 11 2001, the deputy legal director,  
Barbara Olshansky, arrived at the office just as the first plane hit  
the north tower. “We all went upstairs and we watched the second plane  
go in,” she says. “People were walking past here, getting away from the  
scene. We just took our water coolers down to the street and handed out  
water to people going by until 7pm that night. I lost a cousin and a  
good friend in 9/11. Other people here also lost friends.” In the days  
that followed, the centre began to take calls from people anxious about  
relatives who had been swept up in the mass detentions throughout the  
US that followed 9/11. Up to 3,000 people had disappeared. Their  
families had no idea where they were or why they had been arrested. CCR  
took up the cases.

”We knew it wouldn’t make us popular,” says Olshansky, “but I had no  
idea how angry and malicious people could be. There were awful messages  
left on my phone, terrible e-mails. And we worried about whether we  
were really hurting people by taking cases.” It was over Guantanamo  
Bay, though, that the staff, traumatised as the rest of the city had  
been by September 11, had the tensest discussions. “I asked myself all  
the time, what if I’m wrong?” says Olshansky. “What if these are all  
terrible people? But in the end we said it was too horrible. You can’t  
just watch while civilisation and morality are abandoned. We had to do  
something.”

The first case, a habeas corpus writ, was filed on behalf of David  
Hicks and the British detainees Shafiq Rasul and Asif Iqbal in February  
2002 before Judge Colleen Kollar-Kotelly in the Federal District Court  
in Washington. The detainees were chosen because they were the only men  
on whom the lawyers had details. Another detainee, Mamdouh Habib, an  
Egyptian-born Australian, was added later. “He’d been sent to Egypt to  
be tortured for six months, so we just didn’t know about him,” says  
Kenny. “The US government had notified the British and the Australian  
government of their prisoners,” says Stafford Smith, “so they were the  
names we knew. It was the first time in my life I had filed a case for  
a client I couldn’t even talk to. But they were relatively easy: they  
spoke English and we had contacts in the countries they came from.”

It was the only aspect of the cases that was easy. “We knocked on  
everybody’s door,” says Olshansky, “looking for support, for money,  
anything. We got answers that ranged from polite to impolite refusals.  
It was a radioactive issue.” They were not surprised to be rebuffed by  
major law firms, but even the human rights NGOs turned them down.  
“Everyone was worried about the impact on donors and on funding. Nobody  
would help.”

Then there were procedural problems. “None of us was licensed to  
practise in Washington,” says Stafford Smith, “And we needed a licensed  
lawyer to sign the papers to file in a Washington court. Nobody wanted  
to. Eventually we found a courageous criminal lawyer who agreed to do  
it if we didn’t expect him to do anything else. Then the court insisted  
that the client was supposed to pay the filing fee, unless he filed an  
affidavit saying he had no money. We couldn’t get to the clients to get  
an affidavit.” Stafford Smith paid the fee.

The hearing did not go well. They lost in the Washington trial court  
and again in the appeals court. But by then another significant player  
had come on board. In April 2002, the families of a group of Kuwaiti  
detainees who had disappeared in Pakistan in 2001 were trying to find a  
lawyer. Two prominent American lawyers had turned them down, but  
eventually they reached Tom Wilner, a partner in the major Wall Street  
firm, Shearman Sterling. Wilner took the case. He flew to Kuwait to  
meet the families and while he was there the US government notified the  
Kuwaiti government that eight of the men were in Guantanamo. The Red  
Cross later notified them of another four. The men, Wilner says,  
regularly travelled to Muslim countries to do charity work. In 2001  
they had chosen Pakistan. They had been sold for bounty from a  
tribesman’s house, in the North- West Frontier Province, he tells me,  
and stripped naked, shaved and sent to Guantanamo.

It was Wilner’s turn to receive hate mail. “To be honest,” he says, “I  
hadn’t hesitated about taking the case. I didn’t see it as a big issue.  
I just thought, this is what lawyers do - they stand up for the rule of  
law. And if you sacrifice that, you give up on civilisation. I was  
really surprised by the controversy.” The decision, though, was highly  
controversial in the Bar, which created tensions in Shearman Sterling,  
though the firm stood by him. “The firm is based in New York and people  
were understandably afraid. Lawyers somehow felt that the rules had  
changed,” Wilner says. “When the first prisoners went to Guantanamo,  
the tendency was to trust the government. The government said they were  
all terrorists. I think people were afraid that lawyers would interfere  
with the government’s fight against terrorism.”

On May 1, Wilner filed a petition for basic due process - access to a  
lawyer, family visits and an independent tribunal. “We based it on  
civil law and habeas corpus,” he says, “but we weren’t saying let them  
out. It was much milder than that.” Despite his relative restraint, the  
hate mail was coming in at the rate of 100 messages a day. Wilner was  
also looking around for allies and called Stafford Smith and the Centre  
for Constitutional Rights. “I guess they were pleased to hear from us,”  
he says. “It wasn’t bad to have a prestigious firm on side.” In  
December 2002 the group met in Georgetown for a brainstorming session.  
By this time it was some 20-strong.

The administration had also been developing its strategy. The lawyers  
believe that a primary purpose of Guantanamo was to act as an  
intelligence bank and a source of potential double agents. Prisoners  
are regularly interrogated in a row of Portakabins erected in Camp  
Delta, the more permanent camp built to replace the initial facility,  
Camp X-ray. Prisoners wait for their interrogations in permanently  
floodlit wire mesh cells. But there was another aspect to the prison.  
Under Military Order No. 1, issued on November 13 2001, Bush had given  
himself the right to detain any non-US citizen anywhere in the world  
for as long as he chose. He also set up a system of military tribunals  
to try alleged terrorists. The tribunals would operate under rules  
determined by the president: hearings would be held in secret with no  
safeguards or rules of evidence, before military judges who could  
sentence prisoners to death by majority vote. No appeal to an  
independent tribunal would be allowed.

In a concession to the system’s critics, five military lawyers were  
assigned to the defence. In August 2003, Bush, who said of the  
detainees, “The only thing I know for certain is that these are bad  
people,” nominated six men for trial. David Hicks, the Australian, and  
two British men, Moazzam Begg and Feroz Abbasi were among them. “There  
was a huge row when they designated the British detainees,” says  
Stafford Smith. “If we said the tribunals were Stalinist show trials  
nobody would pay any attention, but now we had senior British judges  
saying that kind of thing.” Lord Steyn, one of Britain’s most senior  
judges, called Guantanamo a “monstrous failure of justice”.

In early November last year, the military authorities in Guantanamo  
rehearsed the future proceedings in a mock trial, with members of the  
military police playing defendants. Back in December 2002, though, the  
five military lawyers, four men and a woman, had a potential function  
but, as yet, no clients. They had, however, learned something of the  
system under which they would be called upon to mount a defence of  
their future clients and nothing they had encountered had led them to  
believe that a fair trial would be possible. But, as serving officers,  
they were subject to military rules and discipline and when they agreed  
to attend the Georgetown brainstorming meeting, both sides were aware  
that, at the very least, a culture clash was likely.

Philip Sundel is a naval officer who had volunteered for the job and  
joined the office of the military commissions, the body set up by the  
Bush administration to handle the planned tribunals, when it was  
created in March 2003. “Clive [Stafford Smith] contacted the office and  
offered assistance and the message was passed on to us,” he says. “We  
were slightly concerned that people who were not necessarily going to  
have clients might have their own agendas that might not be helpful to  
our clients.”

”I remember them coming in,” says Olshansky. “All short haircuts,  
uniforms and medals. We were seen as a fringe-left group. But then we  
found out that they did believe in the legal principles and they were  
also horrified by what was happening.”

The military lawyers, too, saw the advantages of co-operation. “It was  
evident that Clive could help us get the things we needed. He had  
experience in capital cases and knew how to get resources that I didn’t  
know how to find,” says Sundel. There was, though, a long road ahead.  
“We still had no private support - no law firms backing us,” says  
Olshansky. “It was very helpful to be able to invoke the military.  
Against us were some really big name lawyers who were taking the  
position that torture could be justified and that the Geneva  
Conventions were somehow old fashioned.”

For the wider public, the rights of the Guantanamo detainees remained a  
deeply unpopular cause. Administration officials continued to argue  
both that the men held there were among the most dangerous in the world  
and that they were a rich source of intelligence for the war on terror  
- a contention, defence lawyers argue, since challenged by several US  
intelligence officers. It was not until the first detainees were  
released in January this year - and were found to include two young  
boys and one very old man - that cracks began to appear in the  
administration’s argument.

By April this year, 146 detainees had been returned to their native  
countries, including Sweden, Spain, France, Pakistan and the UK. (The  
largest groups of detainees come from Saudi Arabia, Yemen, Afghanistan  
and Pakistan.) More than 80 per cent of them, once back home, were  
released without charge. They include an Afghan taxi driver and his  
passenger, several Afghan truck drivers, two teenaged Afghan boys,  
civilians of various nationalities who say they were engaged in aid  
work, and an Afghan shepherd.

Several former detainees, including two of the British men, told  
disturbing stories of physical and psychological abuse. One in five of  
the remaining detainees, according to the US Department of Defence, is  
being medicated for chronic depression, and attempted suicide was  
admitted to be common. (The Department of Defence recently reclassified  
attempted suicide as “manipulative self-harming behaviour”.) The  
released men’s testimony to the harshness of the regime, however, had  
little impact on an American public still inclined, at that point, to  
trust their president. The lawyers pieced together a picture of  
coercive interrogation in which co-operation and confession was  
rewarded with basic comforts and non co-operation was severely  
punished. One frequently used punishment was a visit from the “Extreme  
Reaction Force” (ERF) - a practice that became known among the lawyers  
as “Erfing”. Released detainees have described the Extreme Reaction  
Force as a seven-man squad, one of whom carries a plexiglass shield,  
who are called in when a prisoner refuses to obey an order. This  
happens, according to Department of Defence officials, on an average of  
three times a week.

Evidence of the brutality of “Erfing” came from Sean Baker, a member of  
a military police unit who was assigned to duty in Guantanamo. In  
January 2003, he volunteered to play the part of an unco-operative  
prisoner for an ERF training exercise. He wore an orange jumpsuit and  
the squad was unaware that he was not a detainee. The beating only  
stopped, he says, when his jumpsuit was torn open and his military  
uniform beneath revealed, by which time he had suffered brain damage  
and is now subject to seizures. Baker has sought legal advice.

For the lawyers, defeat in the appeals court in Washington was  
discouraging. “We were just losing everything,” says Stafford Smith.  
Their next step would be to petition the Supreme Court but there was no  
guarantee that the case would be taken. If the court declined, the  
Guantanamo coalition would be at a legal dead-end and the prisoners  
would face indefinite detention, with or without military tribunals.

The tribunals were increasingly alarming to the military lawyers. “They  
lack all the essential ingredients that you need for a fair trial,”  
according to Lt Cdr Charlie Swift, the military lawyer assigned to the  
defence of a 34-year-old Yemeni, Salim Ahmed Hamdan. In a conversation  
earlier this year, Swift listed the tribunal’s deficiencies with a  
fluency born of repetition: it is not independent or impartial and  
there is no impartial review. The two sides are not equal since  
prosecution assets outweigh defence assets by three or four to one.  
“There are 20 prosecutors and only five defenders,” he said. “They can  
put any number of people on to my case.” The “appointing authority”, he  
complained, functions as both the judge and the prosecutor and “decides  
who is going to be charged, what the charges are, who is on the jury,  
what resources and discovery the defence gets, and then he rules on the  
legality of his own decisions”.

Besides, according to Swift, the government may exclude a detainee from  
the hearings, which makes it impossible for him to challenge the  
evidence. As a lawyer, Swift finds himself in an impossible dilemma:  
should he challenge the system, in which case his client may get no  
trial, or accept an unfair system that could condemn his client to a  
long prison sentence?

When Swift finally met Hamdan in Guantanamo earlier this year, he was  
surprised by what he found. “I was expecting a battle-hardened  
terrorist,” he said. “When I met him, I thought, ‘Is this the worst  
they have here?’” His client, he discovered, was a courteous family man  
who, despite his experiences, appeared to feel no animus towards his  
American military lawyer. Hamdan, says Swift, like many Yemenis, went  
abroad looking for work. He found it driving agricultural workers on  
Osama bin Laden’s estate near Kandahar in Afghanistan in 1995, and  
eventually graduated to driving Osama’s family.

When the war began in 2001, he tried to go home with his pregnant wife  
and child but was captured as he was returning his vehicle in  
Afghanistan and was turned over to US forces. Now he is in solitary  
confinement, awaiting trial. For the first 70 days there, his only  
reading material was the Koran. After Swift protested, he was given  
another book - on congenital deformities in the Middle East. Swift had  
always felt it his duty as a lawyer to give Hamdan a zealous defence:  
after meeting his client, he told me, this became a personal  
commitment. “I am convinced,” he said, “that he deserves no less.”

On April 7 2004, Swift filed a habeas corpus suit in Seattle in which  
he challenged the constitutionality of the system of military  
detentions. But after he had filed, the Supreme Court agreed to review  
the earlier judgments in Washington. Swift’s case was put back, to  
await the Supreme Court’s verdict. With the promise of attention in the  
Supreme Court, the coalition returned to the challenge of mobilising  
support. This time, things went better. “A lot of it was the passage of  
time,” says Margulies. “We had to lose in the lower courts. It was  
above their pay grade to cast doubt on the entire strategy of the war  
on terror. We needed a big court, the passage of time, a confluence of  
events and the accumulation of evidence that the executive was  
over-reaching itself. I am proud of the fact that we recognised from  
the beginning that the executive was claiming unbounded authority and  
that you can’t have unbounded executive power. The important thing was  
that between the DC circuit court case and the Supreme Court hearing we  
were joined by mainstream centrist interests.”

By the time the case came to the Supreme Court, it was accompanied by a  
stack of amicus briefs - arguments filed in support of either side of a  
case by individuals or groups who can claim an interest. (They included  
a brief submitted by 85 British MPs and 50 peers.) Among the most  
powerful of the briefs was from Fred Korematsu, a Japanese American  
whom Margulies had contacted. In 1942, Korematsu had petitioned the  
Supreme Court - and lost - against the mass detentions of Japanese  
Americans during the second world war. Korematsu had gone to jail, but  
more than 50 years later was awarded the Presidential Medal of Freedom  
for his courage and persistence in fighting the detentions. Former  
American prisoners of war also filed an amicus brief, arguing that if  
the US ignored the Geneva Conventions, US prisoners of war would be  
left without protection, an argument supported in another amicus brief  
by a group of retired military officers.

The oral arguments were heard on April 20. Ted Olsen, the US solicitor  
general who lost his wife in 9/11, argued for the government. A week  
later, on April 28, CBS broadcast the notorious photographs of the Abu  
Ghraib prison. “I woke up and saw the Abu Ghraib photographs and I knew  
it was the best hope for the people in Guantanamo,” says Stafford  
Smith. “There was a real shift in public opinion. After all, we weren’t  
saying these people were innocent, but we were saying you shouldn’t  
sodomise them. It’s a bit grim to be pleased by Abu Ghraib but I am  
sure it helped.”

The current Supreme Court is known as one of the most conservative for  
many years. Yet when the judgment came, on June 28, it was seen as both  
a dramatic rebuke to the administration and a reassertion of the  
court’s independence. A state of war, the court said, “is not a blank  
cheque for the president”. The administration’s strategy was in  
disarray. The Pentagon moved swiftly into damage control mode. The day  
after the Supreme Court decision, it announced the appointment of the  
officers who would sit in judgment on the prisoners: four unidentified  
military officers will be presided over by a retired army colonel and  
military judge advocate, Peter Brownback III. The first cases were  
heard on Tuesday. (For the defence counsel, this was altogether too  
soon.)

The Pentagon also announced that there would be a separate review of  
all the detentions at administrative hearings, for which each prisoner  
would be assigned a personal representative - a military officer who is  
not a lawyer - and an interpreter to plead before a three-member  
“Combatant Status Review Tribunal”. It was positive in public relations  
terms, but the defence lawyers doubted whether, after more than two  
years of detention, the prisoners would be in a condition to argue  
their case before a military board that they had every reason to  
mistrust and in which all forms of evidence, including from anonymous  
witnesses and coerced testimony, would be admissable. “These people  
might well be incompetent to proceed,” said one lawyer, “but some of  
them will be desperate to get any hearing at all and may well go ahead  
with it.” Those hearings began on July 30. The same day, a San  
Francisco federal judge ordered the government to explain its detention  
of a Libyan prisoner in Guantanamo. So far every one of the first 14  
cases reviewed has been affirmed as an enemy combatant.

On July 7, nine more detainees had been designated eligible for  
military trials, bringing the total to 15. Only the four who faced  
preliminary hearings this week have been charged or assigned military  
defenders. Of the five military defence lawyers, two are assigned to  
one prisoner. None remains available, as of now, for other prisoners  
and one of the existing five, Phil Sundel, is due to leave the navy,  
having been passed over twice for promotion, and will no longer work on  
the case once he has left.

For the defence coalition, the Supreme Court victory was a stunning  
vindication but it still left the lawyers facing a long legal battle  
and their clients were still in detention. “The Supreme Court opened  
the door,” one lawyer observed, “but there’s no map of how to proceed.”  
On July 2 they filed lawsuits again in Washington, arguing that the  
detentions were unconstitutional. To date, 13 petitions have been filed  
in the federal district court on behalf of 71 detainees. But on July  
30, the Justice Department argued that the prisoners had no  
constitutional rights and there was no obligation to allow them access  
to their lawyers. The defence lawyers now fear that the administration  
will try to use the decisions of the combatant status review tribunals  
to resist the habeas corpus petitions in the federal court. “It’s as  
though the Supreme Court decision never happened,” says Wilner.

The lawyers’ attempts to see their clients have taken on a Kafkaesque  
tinge. The only civilian lawyer who has been permitted to visit  
Guantanamo is Stephen Kenny, who was allowed to go after the Australian  
government vouched for him. The government agreed to allow access to  
others, provided that they were US citizens and had been given security  
clearance, a process that the Department of Defence promised would take  
only two weeks. For some of the lawyers, it has already lasted 10  
months. The authorities continue to insist that legal conversations  
with the client must be monitored. The prisoners, they say, might be in  
possession of US “top secret” information that the lawyers have not  
been cleared to hear. “Leaving aside the mystery of how foreign  
nationals who had been in US custody for two years might have acquired  
top secret US information,” said Wilner, “why don’t they just clear us  
for top secret information?”

The conditions that the Department of Defence imposed were regarded as  
so draconian by the US National Association of Criminal Defence Lawyers  
that it ruled it would be unethical for a lawyer to agree to defend a  
prisoner in the Guantanamo tribunals. They include a requirement to  
inform on the clients to the military authorities and not to discuss  
with anyone, including the client, evidence the military deems  
classified. The legal effort is further hampered by difficulties in  
obtaining competent interpreters, who also need security clearance. The  
military lawyers, too, struggle with a shortage of facilities and  
funds. At least one military lawyer still has no interpreter. And in  
this world of shifting rules, the military lawyers remain uncertain  
about how much they may criticise the process publicly.

”There is a category of ‘protected information’,” says one military  
lawyer, “which has been invented for this. It has no legal basis and  
comprises classified information plus anything else that someone thinks  
it would be contrary to the national interest to have released. There  
is no explanation of how it can be challenged or what the legal basis  
of it is.” In a training exercise on protected information, one officer  
said that he knew of no evidence that implicated his client. He was  
told that the absence of evidence was itself protected information.

Charges have been published against only the four defendants who  
appeared this week. David Hicks is charged with conspiracy, attempted  
murder by an “unprivileged belligerent” and aiding the enemy. Ali Hamza  
Ahmed Sulayman al-Bahlul of Yemen, Ibrahim Ahmed Mahmoud al-Qosi of  
Sudan - who is alleged to have joined al-Qaeda in the Sudan in 1989,  
and to have worked for it in Pakistan, Chechnya and Afghanistan - and  
Salim Ahmed Hamdan, Swift’s client, are also charged with conspiracy.  
The preliminary hearings in the first cases began this week and the  
defence lawyers believe that the government is anxious to press forward  
with the trials as early as September, but they still do not have  
detailed rules of procedure. They do not know whether witnesses will  
need security clearance to go to Guantanamo Bay or how to use evidence  
from witnesses who cannot go there. “My private worry,” says one  
military defender, “is that my presence will merely serve as a fig leaf  
for a procedure that is fundamentally unfair.”

The lawyers of the loose coalition that coalesced around Guantanamo  
have forced an opening in the US legal system. Now they face the  
different complications of how to proceed and whether to try to  
co-ordinate a future strategy or to pursue the interests of their  
clients separately. There are, though, the complications of success.  
Since the Supreme Court decision, Justice in Exile, which already had  
taken on 53 Guantanamo cases, has been flooded with requests for  
representation from detainees’ families in Bahrain, the Yemen, Saudi  
Arabia, Libya, Qatar, Syria and Jordan. Stafford Smith took them all.

Margulies reflects on the long fight to get to this point.

”I am proud of my role,” he says, “though articles about frayed carpets  
in impoverished legal offices make me sick.” “We feel vindicated,” says  
Wilner. “The firm took some heat but attitudes have changed with the  
passage of time and people realise the government is not infallible.  
Now I get congratulations instead of hate mail.” Celebration, though,  
is premature for Wilner. “It’s important to remember that it’s only a  
legal victory. It’s clear that most of the people in Guantanamo  
shouldn’t be there. But they’re still there. It’s been two and half  
years and we don’t know how much longer it will take. It’s really  
bothering me.”

--
School of Computing Science, University of Newcastle, Newcastle upon  
Tyne,
NE1 7RU, UK
EMAIL = Brian.Randell () ncl ac uk   PHONE = +44 191 222 7923
FAX = +44 191 222 8232  URL = http://www.cs.ncl.ac.uk/~brian.randell/

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