WITHOUT DUE PROCESS FOR
Detainees May Lose Access to Lawyers
By ANDREW O. SELSKY
November 9, 2006
SAN JUAN, Puerto Rico (AP) - Guantanamo Bay prisoners could soon lose access to their lawyers -- one of their only contacts with the outside world -- because of a new law that eliminates their right to challenge their detention in civilian courts, the lawyers fear.
Even as lawyers are asking a federal court to rule that provisions of the law are unconstitutional, the government is seeking to restrict their access to the isolated Guantanamo military base. And for at least one detainee, the government is trying to ban civilian lawyers altogether.
For now, Guantanamo officials are holding off on restricting lawyers' access to the U.S. base in southeast Cuba, Navy Commander Robert Durand told the Associated Press. Lawyers say doing so will further shroud the detention center in secrecy and could invite abuses.
"If attorneys were kept from visiting Guantanamo, the only information regarding conditions there would be provided by the government," said Joshua Colangelo-Bryan, a New York lawyer whose Bahraini client tried to commit suicide at Guantanamo last year as Colangelo-Bryan was visiting him.
Word of hunger strikes, detainee despair, solitary confinement and other details has come from attorneys who have developed relationships with prisoners -- many of whom have been held for almost five years.
Aside from lawyers, the 430 detainees now have personal contact with military guards, interrogators and get an occasional visit from the Red Cross, which keeps its findings confidential. Journalists are prohibited from speaking with detainees. Relatives cannot visit, although they can exchange letters censored by the U.S. military.
The lawyers' main accusation is that the new Military Commissions Act denies their clients the most basic tenet of law -- the right to challenge one's imprisonment.
Signed last month by President Bush, the law says no court can hear a petition of habeas corpus -- a right enshrined in the U.S. Constitution -- from any non-U.S. citizen determined to be an enemy combatant or held under suspicion of being one.
Habeas corpus, which has been around since the Magna Carta of 1215, obligates officials to explain in court why those arrested are being held.
"This law doesn't apply only to Guantanamo," said Gaillard Hunt, an attorney for a detained Pakistani businessman. "It applies to every non-U.S. citizen. It empowers the executive branch to get anyone anywhere, and there's no habeas corpus for them."
The Detainee Treatment Act, signed by Bush almost a year ago, stripped enemy combatants of the right to file habeas petitions, but the newer law makes it retroactive. Durand said from Guantanamo that if the new law forces a federal court to throw out pending habeas cases, base commanders would then have the authority to stop or curtail lawyers' visits.
Attorney General Alberto Gonzales maintained last month that habeas corpus was never intended to apply to "alien enemy combatants" and is meant for people in police custody. But the manner in which a detainee is determined to be an enemy combatant riles defense attorneys, who have been working without pay for Guantanamo detainees.
A Combatant Status Review Tribunal, headed by three U.S. military officers, determines whether a detainee is an enemy combatant. The detainee cannot have an attorney for the hearing, and part of the evidence may be classified.
The government uses the term "combatant" loosely. Those accused of belonging to aid groups allegedly linked to terrorist organizations have been branded enemy combatants, even though they were never accused of carrying a gun or bomb.
David Cynamon, whose law firm represents four detainees from Kuwait, said the military hearings are no substitute for a habeas court hearing. "They were averaging three a day. These things were a joke."
A federal court of appeals in Washington can review the finding of a Combatant Status Review Tribunal, but is limited largely to considering whether it is consistent with "standards and procedures" established by the new law.
The government is proposing that defense lawyers can have no more than four meetings with detainees pursuing cases with the Washington appeals court. The government said in court filings it also wants to tighten censorship of mail from attorneys and allow the military to restrict what lawyers discuss with detainees, arguing that they could become violent if they hear about world events.
Defense lawyers see the proposals as an attempted blackout on news from Guantanamo.
"It reflects a cynical attempt by the government to staunch the flow of information out of Guantanamo, a cynical effort by the government to conceal facts about who really is being detained at Guantanamo," said attorney Wells Dixon of the Center for Constitutional Rights, which represents several hundred Guantanamo detainees.
The Bush administration says Majid Khan, who graduated from high school in Maryland and was allegedly involved in a plot to blow up gas stations, should not be allowed to speak to a civilian attorney at all.
Khan was arrested in Pakistan in 2003 and held by the CIA before being recently transferred to Guantanamo. The government said in an Oct. 26 court filing that if those held in secret CIA prisons speak to a civilian lawyer, information about interrogation tactics could come out, allowing terrorists to adapt their training.
"It's outrageous. A man held for 3 1/2 years and likely subjected to torture, for the government to now deny him access to counsel," said Dixon. "They want to prevent him from making his torture and abuse from becoming public."