Revolution #89, May 20, 2007
U.S. Torture Center at Guantánamo: New Assault on the Rights of Detainees
At the end of April, the U.S. Justice Department asked the U.S. Court of appeals for the DC Circuit to impose tighter restrictions on hundreds of lawyers who represent those detained at Guantánamo—further denying these detainees the right to an attorney.
The government wants to limit the number of visits detainees are allowed by their lawyers to three, after an initial face-to-face meeting. It wants to tighten censorship of mail detainees get from attorneys and permit a team of intelligence officers and military lawyers not involved in a detainee's case to read mail from lawyers. And it wants to give the military more control over what lawyers can discuss with detainees, letting government officials deny lawyers access to secret evidence used by military panels to determine that their clients are “enemy combatants.”
Guantánamos's Draconian Reality
More than 750 people have been held at Camp Delta at Guantánamo Bay, Cuba, some for up to five years, and most have had no charges brought against them. The Center for Constitutional Rights, which coordinates the over 500 lawyers representing these detainees, has said, “Numerous reports have found that U.S. government officials at Guantánamo use interrogation tactics that are tantamount to torture. These include methods such as physical beatings; extreme temperature changes; prolonged stress positions; sleep deprivation; withholding medical care; sexual abuse; and religious and cultural abuse.”
Revolution recently talked with Shayana Kadidal, Senior Managing Attorney of the Guantánamo Global Justice Initiative at the Center for Constitutional Rights, about the problems lawyers have had in representing clients at Guantánamo and the significance of this new appeal by the U.S. government. He said:
“The process that we are forced to run through now was created by Congress in 2005. It's simply called the Detainee Treatment Act. The process starts with a little military panel of three military officers—they don't even have to be lawyers – where they decide whether or not you're a so-called 'unlawful enemy combatant.' In this process the military can bring in classified evidence, they can used tortured evidence they've tortured out of other people or out of the detainee. The detainee never gets a lawyer. Beyond that, the detainee doesn't get to bring his own witnesses or his own documents into court. He doesn't have any power to produce evidence. All the facts are produced by the government. The detainee doesn't even get to counter them or catalyze them with skepticism. He can't even see most of them.”
Kadidal also talked about the kind of absurd restrictions placed on lawyers representing Guantánamo detainees:
"Among other things it [the Detainee Treatment Act] said anything a detainee tells you—even the information in your head that you're carrying out of the base after you've met them, is presumptively classified. So when you write out notes from your meeting with the detainee, you have to hand it over to the government and they send it through a security clearance and give it back to you. It's a walled-off Justice Department clearance team—it's basically walled off in terms of they're not supposed to be involved in the litigation. They don't talk to the lawyers who are on the other side from you, but they are reading all the stuff and they have to clear it for you, so that's one thing. You have to get a security clearance to go down there—you have to get it for your translator to go down there."
This means that the government has access to all information exchanged between attorneys and their clients during visits to Guantánamo.
The new restrictions would require detainees to sign a document agreeing to work with a particular attorney. Kadidal explained why this is so devastating to a lawyer's ability to work with and gain the trust of his/her client:
"The first line of the form, I mean you can pull it up online, says 'You have been determined to be an enemy combatant.' So this is the thing that the detainee is supposed to sign. And beyond that, I can tell you that most people down there don't trust anyone as far as they can throw them, and with good reason. Winning trust of detainees is the hardest task that the lawyers have. That's why they have often tried, when they have the money and the time, to go visit an awful lot. And go visit the family members before they visit the detainee so that they'll have some inside information that shows the family trusts them. And that will create a sense with the detainee. These guys have been subjected to visits from interrogators disguised as foreign country officials, disguised as doctors, psychiatrists, human rights lawyers, you name it. And then they've been told things like, all your lawyers are Jews, and stuff like that that the military thinks will convince them that they should sort of mistrust them. Forcing them to sign a piece of paper during the first eight hours and forcing the lawyer to whip out a piece of paper, you know, when all through the interrogations there have always been kind of concessions put in front of these people to sign and they go, 'Look just sign this and you'll go home'—it's obvious to anybody why that's gonna create such huge trust issues."
The U.S. Justice Department claims that attorneys' visits and attorney-client mail have caused "intractable problems and threats to security at Guantánamo," and that the lawyers have "caused unrest on the base," such as hunger strikes and protests. Such claims have been used to justify these new draconian restrictions, in particular the reading of attorney/client mail. Kadidal points out, “What the military is basically saying is things like basic human comfort, things like information about how their wife and kids are doing back home, or something like that—that sort of information, or political developments in the war on terror or the war in Iraq, stuff like that—those aren't relevant to the immediate case that the detainees are bringing so that shouldn't be sent to them."
“The bigger issue there,” Kadidal says, “is really just the government saying that the untrustworthiness of the lawyers in adhering to all these restrictive rules is requiring them to basically open up and read legal mail."
More Restrictions and Outrageous Finger-Pointing
Many of the detainees' lawyers (and others) are outraged at the government's claims that these attorneys are responsible for unrest and security problems at Guantánamo. They point out that it is the abuse and torture of these prisoners and the fact that they have been held for years without even being charged, which has given rise to hunger strikes, protests, and other forms of "disobedience." One lawyer representing a detainee called the Department of Justice's accusation a "McCarthyite-era charge."
The appeal to prevent lawyers from having access to evidence used against detainees by the government also creates a new category of “protected information.” This is aimed at preventing lawyers from having access to information used by the military to define detainees as "enemy combatants." Previously, government officials could not classify information simply because it was embarrassing or exposed misconduct. Under these new restrictions, this could be done by executive order. Kadidal explained: "Presumably, information about all sorts of detainee misconduct and so forth and just things that the government finds embarrassing to get out there publicly—they can put a clamp on, and cut off access of the media to this sort of thing, by designating it in this sort of new category of protected information that they have control over, not the court. "
This is not the first time the U.S. government has moved to further restrict the rights of detainees at Guantanamo and attacked their lawyers. In January, Charles Stimson, Deputy Assistant Secretary of Defense for Detainee Affairs, targeted attorneys at many top law firms who are representing the Guantanamo prisoners pro bono (for free). Stimson called on these law firms' corporate clients to ask the firms "to choose between lucrative retainers and representing terrorists" and strongly insinuated that some of the attorneys might be funded by or connected to so-called "terrorist" organizations. These remarks represented a very heavy threat, raising the possibility of a federal investigation of the attorneys and their law firms under the Patriot Act or other repressive laws passed since 9/11. And Stimson's threats were also meant to have a chilling effect on any lawyer who might think about defending an “unpopular” client.
Kadidal points out: “They're basically just saying, look the detainees don't have the right to know what's going on in the outside world. This is just part of the military's whole plan for the place, which is to create an interrogation center—more than a punishment facility for people they think have done something wrong—but an interrogation facility. And part of their interrogation methodology is to isolate the person so that they can become totally dependent on their interrogator for all sort of human contact and contact with the outside world. So people are increasingly being held in solitary confinement facilities down there and they want to cut off their letters from home and contact with lawyers.”
Bush Eases One Rule But Continues to Push New Restrictions
On May 12 the Bush Administration announced it is no longer seeking to restrict the number of meetings between Guantanamo detainees and lawyers. But all the other appeals are still stand . This comes after widespread protest and outrage from civil liberties and legal groups, including the American Bar Association and right before one of the largest Guantanamo cases where eight detainees are challenging their status as “enemy combatants.” Barry M. Kamins, president of the New York City Bar Association, as reported in the New York Times, said, “The easing of this one rule barely begins to address the egregious violations of the attorney-client relationship.”
Taken as a whole, these new restrictions set out to prevent the public from finding out what has gone on in Guantánamo, and at the same time they seek to prevent detainees from taking to court those who have unlawfully detained and tortured them—all the way up to top levels of government.
What's more they are a part of making Guantánamo an even more isolated torture and interrogation center where human rights do not apply—where detainees are denied basic legal rights, tortured, and subjected to inhuman isolation, and where there is increasing secrecy aimed at covering this all up.
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