Rasul v. Bush: one year later

Kudos to Newsday, which (unlike the NY Times thus far) today notes the approaching one-year anniversary of Rasul v. Bush, the Supreme Court ruling that Guantanamo detainees are entitled to judicial review. It was hailed as a victory by civil libertarians at the time, yet detainees have had no access to the courts since then. Note that Newsday rightly uses the word “courts” to refer to the civilian judiciary and not the Pentagon’s special “tribunals” for the detainees, which are laden with extraordinarily onerous restrictions, and are arguably a legal fiction. Here are some excerpts from Newsday’s coverage:

At Gitmo, still no day in court
How feds avoid hearings for terror suspects — despite Supreme Court ruling

One year ago, the Supreme Court told the Bush administration that in America, even detainees swept up in the war on terror and held at the military’s Guantanamo Bay prison camp were entitled to a day in court to contest their imprisonment.

Faruq Ali Ahmed is still waiting. A young Yemeni picked up in Pakistan in 2001, he has been held since then despite his insistence that he was doing nothing but teaching the Quran to children when war broke out. He is detained in part on the basis of accusations from a camp snitch who a military officer has denounced as a liar.

Like scores of other prisoners confined at the Caribbean outpost, Ahmed has a lawyer and has filed a court challenge to his detention. But a year later, the hopes raised by the Supreme Court’s precedent-setting decision in Rasul v. Bush last June 28 have yet to be fulfilled. No prisoners have yet had court hearings on whether they should be confined. Instead, they have faced a labyrinth of legal delays and a pattern of government resistance, serving as pawns in a remarkable legal drama that their lawyers say has stopped just short of obstruction of a mandate from the nation’s highest court.

“I think it’s pretty clear what the spirit of the Supreme Court ruling was,” says Mark Falkoff, a New York lawyer who represents Ahmed and other Yemenis. “But the government position is still that Guantanamo is a legal black hole and the courts should butt out, and the military has fought every step of the way to vindicate that idea.”


The Bush administration..says it has complied with the Supreme Court decision, providing fair hearings for all prisoners through military tribunals. While the Justice Department would not comment on the lawyers’ criticism, the Pentagon said it has made “extraordinary efforts” to enable the lawyers’ work, but “we also have a responsibility to ensure that national security is maintained.”

In the tribunals, military officers have found the military was correct in holding 520 of 558 prisoners as enemy combatants. The dozens of volunteer lawyers who filed court petitions for prisoners after last year’s ruling say the tribunals — which excluded lawyers — were unfair, and many prisoners are wrongly held.

At the same time, the government has fended off court intervention with a narrow reading of the Supreme Court decision, arguing that it did not approve judges overseeing “war operations”…

On the ground, the military has set up a system that delays legal correspondence for weeks and requires lawyers from around the country to write motions at a single secure facility in Virginia. It has tried to edit out detainees’ claims of mistreatment from the public record. Detainees have alleged that interrogators have tried to turn them against their lawyers.

“I think it has really crossed the line,” said Washington lawyer Tom Wilner, who represents 12 Kuwaiti detainees. “The government has taken the attitude that the law is an impediment you have to avoid.”

The Pentagon adamantly denies it has interfered with lawyer-client relationships. It says the other steps are not designed to hamper prisoners’ legal rights and have been subject to court oversight.

“Simply put, these procedures exist to protect national security,” said a Defense Department spokesperson.

The prison was opened in 2002 as a repository for those captured in the war in Afghanistan and its aftermath. The Bush administration said they were entitled to “humanitarian” treatment but were not protected by the Geneva Conventions or U.S. law. Soon after, lawyers for a few detainees’ families filed court cases seeking writs of habeas corpus — the centuries-old power that allows a judge to review the legality of a detention. The Bush administration said the courts had no jurisdiction, but a 6-3 Supreme Court majority disagreed.

Government resistance began the very next day, when the Justice Department told the trial judge handling the cases that it wasn’t sure lawyers had a legal right of access to their clients at Guantanamo. She eventually ruled that they did, but it was Labor Day — two months after the Supreme Court ruling — when the first lawyer got to Guantanamo. That fight set the tone.

Legal Catch 22

The government’s position: The Supreme Court gave prisoners the procedural ability to file court petitions but not any substantive rights to assert once they got there. It argues the military tribunals resolved all questions on whether prisoners were properly held, and it now wants to dismiss all the court petitions. That key issue is before an appeals court.

Detainee lawyers, on the other hand, say the government has taken an absurd view of the Supreme Court ruling and meanwhile has wrongly kept the fate of hundreds of men in the hands of tribunals answerable to the Pentagon. The tribunal hearings, they say, form a key backdrop to the problems the lawyers have encountered and show why the government is resisting intrusion by neutral judges.

In Ahmed’s case, for example, he was accused of having wielded an AK-47 as a guard at Osama bin Laden’s personal airport. He told the tribunal it was completely false, according to a transcript, but wasn’t told who accused him. Later, in an unusual step, Ahmed’s military personal representative (an officer assigned to prepare each detainee for his hearing) attached a statement indicating a prime accuser was a camp snitch who had lied repeatedly to get preferable treatment…

Ahmed’s case and others, lawyers say, reflect fundamental problems. Prisoners learn only general charges, while the specifics on which panels rely are classified. They can’t cross-examine or insist on witnesses.

“The tribunals,” said Scott Sullivan, the lawyer for another group of Yemenis, “are all about one side of the story.”

While they believe such cases show fair hearings can occur only in courts, prisoner lawyers complain that the government has deployed an array of practical hurdles to make it as hard as possible for them to help their clients.

Lawyers, for example, have to wait weeks and months for security clearances. Any materials they want to bring to a detainee — legal papers, introductions from families — have to be submitted for military screening and sometimes are prohibited or redacted. Family correspondence has been banned as “non-legal” material, and some lawyers believe that’s because access to it is a useful carrot in interrogations.

Dictionary as spy tool?

Some restrictions, lawyers complain, are petty. Translation dictionaries to help clients understand English legal filings have been deemed a security risk because they might help prisoners collect information…

Once at Guantanamo, it takes the lawyers an hour each way to reach interview rooms. They can’t use the Internet connection nearby. Everything clients say is presumed to be classified. Notes must be turned over to guards, and they are sent to a Pentagon facility in Virginia. At least once, interview notes were lost en route.

Until the information is reviewed and cleared by a military team, the lawyers say, they can’t discuss it with anyone without security clearance or use it to write motions in their office. Lawyers from around the country all have to go to Virginia to review notes and write motions. Lawyers say decisions about what to clear can take weeks and don’t always involve real security concerns.

For example, Muneer Ahmed, an American University law professor representing Canadian detainee Omar Khadr, was told by his client of severe mistreatment at Guantanamo. In Virginia, he says, the military refused to declassify all 20 paragraphs in his notes about alleged abuse. He challenged the practice, and finally, in January, the reviewers began to declassify such claims, allowing lawyers to go public. The episode convinced Ahmed the process is “a sham.”

All legal correspondence to and from Guantanamo follows a similar, time-consuming route through Virginia. Complaints — about guards inspecting legal papers or denial of medical treatment — often are stale by the time they arrive, lawyers say.

Brent Mickum, a Washington lawyer, said it took him six weeks late last year to receive letters from a Jordanian client complaining that he was put in isolation because he wanted to pass on the names of five other prisoners who wanted lawyers.

“My client says he’s been thrown into isolation for doing something that shouldn’t be against the rules, and it’s taking me well over a month to find out about it,” Mickum said.

Claims of stonewalling
While client correspondence is delayed, lawyers say, getting information from the military has been even harder. Some say that despite security clearances, they haven’t gotten classified evidence used by tribunals. Others haven’t been able to get client medical records that might document abuse….

Some of the most serious allegations focus on interference with the lawyer-client relationship. Several lawyers say prisoners have told them that guards and interrogators have looked at private legal papers, questioned them about their meetings with lawyers and suggested that inmates with lawyers will wait longer to get out. Wilner, in one court filing, alleges that an interrogator asked a Kuwaiti client, “Did you know your lawyers are Jews?”

The Defense Department adamantly denies that and other claims of intrusion into lawyer-client relationships. Other measures, it says, are overseen by courts and designed to ensure safety from dangerous men, not to hamper lawyers.

“It would be irresponsible for the Department of Defense to fail to take measures to ensure that the detainees are not a threat … or that classified information is not inadvertently released,” said the Defense spokesperson.

See our coverage of Rasul v. Bush in WW4 REPORT #100 (scroll down to second-to-last subhead).

See our last post on Guantanamo and other Pentagon detainment facilities.

  1. This is what fascism look like
    Of course the reliably despicable Heritage Foundation has this to say on the Gitmo controversy in a June 14 commentary:

    While billions are victim to the regular abuse and tyranny of governments such as those of Sudan and China, much of the world’s media and non-profit “human rights” resources focus on the U.S. Naval base at Guantanamo Bay, Cuba. Not a single person has been killed at the facility since it opened, and yet the drumbeat of criticism grows by the day.

    Nobody’s been killed! What a vindication!

  2. Senators speak out–at last
    From Reuters, via TruthOut:

    Guantanamo Inmates Can Be Held ‘in Perpetuity’ – US

    Wednesday 15 June 2005

    Republican senators called on Wednesday for the rights of foreign terrorism suspects at Guantanamo Bay prison to be legally defined even as the Bush administration said the inmates could be jailed there “in perpetuity.”

    The prison, currently holding roughly 520 inmates, opened on the U.S. naval base at Guantanamo Bay, Cuba, in January 2002 in the aftermath of the Sept. 11, 2001 attacks on the United States. Many of the detainees have been held for more than three years, and only four have been charged.

    At a U.S. Senate Judiciary Committee hearing, Republican Chairman Arlen Specter of Pennsylvania said Congress should help to define the legal rights of the inmates at the prison, which the panel’s top Democrat called “an international embarrassment.”

    Delaware Democratic Sen. Joseph Biden asked Deputy Associate Attorney General J. Michael Wiggins whether the Justice Department had “defined when there is the end of conflict.”

    “No, sir,” Wiggins responded.

    “If there is no definition as to when the conflict ends, that means forever, forever, forever these folks get held at Guantanamo Bay,” Biden said.

    “It’s our position that, legally, they can be held in perpetuity,” Wiggins said.

    Earlier, the committee’s top Democrat, Sen. Patrick Leahy (news, bio, voting record) of Vermont, said the United States may face terrorism “as long as you and I live.” He asked Brig. Gen. Thomas Hemingway, who oversees military trials of Guantanamo prisoners, if that means America can hold prisoners that long without charges.

    “I think that we can hold them as long as the conflict endures,” Hemingway responded.

    “Guantanamo Bay is an international embarrassment to our nation, to our ideals, and it remains a festering threat to our security,” Leahy said.

    “Our great country, America, was once viewed as a leader in human rights and the rule of law, and justly so. Guantanamo has undermined our leadership, has damaged our credibility, has drained the world’s goodwill for America at an alarming rate,” Leahy added.

    Critics have decried the indefinite detention of Guantanamo prisoners, whom the United States has denied rights accorded under the Geneva Conventions to prisoners of war. The prison, was called “the gulag of our times” in a recent Amnesty International report.

    Hemingway said the military commissions created by the Pentagon were the appropriate forum for trying Guantanamo prisoners. Human and legal rights groups have said the rules created by the administration are heavily biased toward the prosecution. The trials have been held up amid legal fights.

    Navy Rear Adm. James McGarrah called “rigorous and fair” the Pentagon’s annual review of the status of Guantanamo prisoners — a process that can lead to their release. In those proceedings, detainees are prohibited from having lawyers and cannot see all the government’s evidence relating to them.

    Lawyers representing Guantanamo prisoners criticized their treatment and the government’s system for trying them.

    “The (reviews) are a sham,” said Joseph Margulies, one of the lawyers. “They mock this nation’s commitment to due process, and it is past time for this mockery to end.”

    Republican Sen. Jeff Sessions of Alabama said: “This country is not systematically abusing prisoners. We have no policy to do so. And it’s wrong to suggest that. And it puts our soldiers at risk who are in this battle because we sent them there.”

    Referring to detainees, Sessions added, “Some of them need to be executed.”

    Republican Sen. Lindsey Graham (news, bio, voting record) of South Carolina joined Specter and others who said Congress needed to get involved to better define the process at Guantanamo.

    “I think it would be tremendously helpful if the Congress and the administration came together with some general statutory language to help define what’s going on at Guantanamo Bay, to better define what an enemy combatant is, to make sure that due process is affordable,” Graham said.

    Specter noted that legislation he introduced in 2002 on legal rights of detainees had gone nowhere.

    “It may be that it’s too hot to handle for Congress, may be that it’s too complex to handle for Congress, or it may be that Congress wants to sit back, as we customarily do, awaiting some action with the court no matter how long it takes,” he said.

    The U.S. Supreme Court ruled a year ago that Guantanamo prisoners had the right to seek their release in federal court. But decisions in the lower court have been contradictory, creating what Specter called a “crazy quilt” of rulings.