DOJ cuts off Guantanamo lawyer access after federal court ruling
From Jurist:
A US Department of Justice lawyer has informed lawyers representing some 40 detainees at Guantanamo Bay that they will no longer be able to visit with or send written communications to their clients. DOJ lawyer Andrew I. Warden sent an e-mail to the detainees’ counsel Friday, referencing a court ruling issued by US District Judge Ricardo Urbina last week. Urbina dismissed 16 habeas corpus challenges brought on behalf of at least 40 detainees and in doing so also rendered invalid protocols that had been established governing lawyers’ access to detainees. The DOJ has put in place a series of steps attorneys wishing to resume contact with detainees, but one detainee lawyer, Wells Dixon, called the measures “the latest example of the government’s efforts to frustrate counsel access to detainees.”
Earlier this year, the DOJ sought to restrict lawyer visits, but Guantanamo commander Rear Adm. Harry Harris later backed away from the proposal. AP has more.
Tags: Due Process, Habeas Corpus, Guantanamo
September 23rd, 2007 at 3:33 pm
From the AP article linked:
“We have afforded detainees at Guantanamo with greater access to attorneys than any other combatants in the history of warfare,” Gordon said.
Wouldn’t it be great if the Gitmo POW’s has access to legal counsel like our POW’s did in Japan or Germany?
September 23rd, 2007 at 3:45 pm
I want our government to treat the detainees like we would want American’s treated. Its the golden rule, an I think it applies here. Of course you might support no due process for anyone detained in Gitmo and you already assume they are guilty of SOMETHING….golf clap everyone!
And I fail to see how stooping to the lowest level possible makes us look good manapp. Aren’t we above barbaric measures and denying justice and due process?
Apparently not and you think thats just fabulous. two wrongs never make a right in anyones book but the prowar supporters.
You can call them a pow all you want..it doesn’t make it so. What is our government so worried about that they refuse to allow these detainees counsel? Either they have a case against them or they don’t.
September 23rd, 2007 at 5:19 pm
I guess they probably object to civil courts intruding upon matters of warfare. It isn’t just that neither Nazi Germany nor Japan afforded our prisoners of war lawyers, no one in the history of warfare has ever thought to afford prisoners of war lawyers. I honestly don’t know where this nonsense that wartime captives are to be considered US Citizens for purposes of anything having anything to do with US civil criminal or appeals courts. It’s a total inovation, our troops have never been accorded such a thing and never will by any wartime enemy. Our current enemy affords our captives with one right: the choice to be beheaded with a sharp sword or a dull sword. I don’t want our troops afforded lawyers. I’d be happy if they were treated half as humanely as we’ve treated our enemies whom we capture.
September 23rd, 2007 at 8:15 pm
Why give these guys rights that they deny their own people?
September 23rd, 2007 at 9:20 pm
“Why give these guys rights that they deny their own people?” Well, ostensively, we’re better than they.
September 24th, 2007 at 1:22 pm
I was under the impression that these were not POWs and were not covered by the geneva convention. Isn’t this the administrations line?
Also, as far as I know, they still have no idea which ones were combattants.
September 24th, 2007 at 3:05 pm
Christopher,
Yes and no. The Geneva Conventions spend bit of effort directed at defining who does and who does not fall under the protections of the Conventions. People who fight in uniform, as members of the recognized military services of a nation that is a signatory to the Conventions, under a definite chain of command that can be held accountable for the orders they give, who bear their arms openly and who otherwise obey the strictures of the Conventions are prisoners of war.
The Conventions do allow for, in the case of an invasion, in instances when there is no time to enlist in the regular armed forces of a signatory nation (i. e., the invading forces are within sight and members of the populace take up arms to repel the invaders), non-uniformed fighters to be treated as POW’s. However, in this case, ample warning was given of our invasion of Afghanistan (and Iraq). No combatant could argue that there had been no time for him to enlist to be a uniformed member of the armed forces. This particular section, I don’t think, applies to fighters who fought dressed as civilians, did not bear their arms openly etc. They did this precisely so that they could evade capture, could ambush our forces, could spy upon our forces, and so forth. From their point of view, evading the requirements of the Geneva Conventions in the fighting of war was a feature, not a bug (to borrow from the softwear world). Allowing them the protections of the Conventions defeats one of the main purposes for which the Conventions were put into place: to encourage those who fight in wars to do so according to the internationally accepted rules of warfare. Treat terrorists as if they were honorable warriors and there is no longer any encouragement for warriors to obey those internationally accepted rules of war.
Since the majority of the captives are not regular military, wear no uniform but dressed as civilians, did not bear their arms openly, and generally were unmindful of the requirements of international rules of warfare, they do not qualify as POW’s.
What point are you trying to make by this observation?
I’m not sure what you mean. As I understand it, they’ve all been through at least one combatant review and have been found to have been combatants.
Craig R. Harmon
September 24th, 2007 at 4:01 pm
my point on pows was in reply to manapp99,
“I’m not sure what you mean. As I understand it, they’ve all been through at least one combatant review and have been found to have been combatants.”
I have seen no indication that anything has been proven at gitmo beyond taking someones word about their status.
September 24th, 2007 at 4:09 pm
Craig, if you have a citation for your premise that all of the prisoners at Gitmo have been given some sort of non-partisan review..please put it up..otherwise I don’t buy it.
With all the secrecy down there..how do we know what is true and what isn’t? Thats how Georgie likes it..to treat all American citizens as mushrooms…keeping us in the dark about Gitmo and feeding us bullshit.
September 24th, 2007 at 4:31 pm
Dusty,
My premise is merely that, as I understand it from my reading of news reports and blog discussions, beginning in July of 2004, combatant status review tribunals have been held and that each detainee still in detention has been through at least one. However, that is no more than my understanding. I’ll try to find confirmation of that in some news report but I don’t have one up my sleeve.
They are military tribunals and thus, perhaps, they would not, in any case, qualify as non-partisan, in your estimation however the Supreme Court has ruled that some form of military tribunal might qualify as a competent court of review for the purpose of determining combatant status.
The SCOTUS, however, has not yet ruled on whether the tribunals that have been carried out to date so qualify. As I understand it, there is a case that will be coming up in the next Court term.
Off to find a citation.
September 24th, 2007 at 4:49 pm
Well, here is a response by the DoD to a ruling by a district judge for information regarding combatant status reviews:
I don’t know if that is ALL of the detainees, though. Here’s the report (.pdf file):
http://www.ctc.usma.edu/CTC-CSRT-Report-072407.pdf
Of course, that doesn’t mean that they meet everyone’s standard for proof that any of them were at any time actually combatants. That’s something that I doubt anyone can supply, let alone me, from the resources available.
September 24th, 2007 at 5:10 pm
Dusty,
Regarding the secrecy of which you speak, the report states:
This, I suspect, is the source of your concern and that of many others.
September 24th, 2007 at 6:26 pm
Dusty,
You ask me, “With all the secrecy down there..how do we know what is true and what isn’t?” In answer, I obviously do not know, since I am not down there to see it. I know only what I read or hear from people who should know about what is true. I accept that in these matters, a certain amount of secrecy is necessary and, therefore, I will not have full access to all of the evidence against these detainees. Without that evidence, I am in no position to say whether the detainees are combatants or not. I am not happy about this fact but I accept its necessity.
My question is, in your estimation, what benefit could Bush think he could gain by detaining people who were not fighters or Al Qaeda affiliates? How does holding hundreds of innocent people indefinitely benefit him? The detriments to him, to the country, to our reputation around the world and so forth of these detentions are obvious to me. The benefits of detaining people who are innocent escapes me.
September 24th, 2007 at 6:50 pm
Secrecy means never having to say I’m sorry. That is the benefit. With the administration being wrong about so much else about the war, the last thing they want to admit is that they are detaining people for no reason. Also it plays to their fear campaign strategy . They have to have bad guys to point to.
September 24th, 2007 at 7:25 pm
Christopher,
Point taken. Perhaps you’d respond to the question that I asked Dusty:
My point being, if it’s all downside and no clear upside, why do it? And if there’s no good answer to that, why suppose that they ARE doing it?
September 24th, 2007 at 7:30 pm
That is to say, you’ve pegged a benefit of secrecy (although there are other benefits, too) but that wasn’t really the question. The question was, what’s the benefit of holding people who are innocent, secrecy issues aside. Obviously, if they are knowingly holding innocent people, they’re going to be secret about it to avoid this becoming known but that doesn’t touch upon the issue I raised: why detain people you know are of no threat to you and have no information about people who are a threat to you in the first place? If one posits that this is what’s being done but can’t come up with a good explanation of why the administration would do it, I don’t see any good reason to think that the administration IS doing it.
September 24th, 2007 at 7:51 pm
Or are you not positing that they are detained people that they knew were innocent? For example, I can imagine a scenario such as the following: they decided to ask the assistance of Pakistani officials and anti-Taliban warlords in identifying Al Qaeda members and only too late realized that they were way too trustful of these folks in accepting their identification. The result being, they have no idea who was or who was not AQ. Therefore secrecy is essential. In this scenario, the administration did not detain people they knew to be innocent; they took the word of people whose word was not necessarily trustworthy and whose identifications are suspect and they are lacking in sufficient evidence to conclusively identify who is and who is not AQ or a combatant. As I think through it, that is probably your position (or at least pretty close). Okay, if that’s what you are saying, I can buy that. In that case, though, we really are at a stale-mate, I think. Just as I cannot prove that the folks being held at GITMO really are dangerous folks, as opposed to people just swept up innocently in a drag-net without real evidence. I can’t prove that because, even if there really is sufficent evidence, that evidence may very well be legitimately and necessarily classified. On the other hand, I don’t see a way to prove that they aren’t really dangerous folks but rather that they were innocently swept up.
Now don’t get me wrong. I am sensitive to the notion that it is the government/military’s job to prove them dangerous, not yours or theirs to prove them innocent. I’m just saying that I am not the one to whom the government has to prove that the GITMO detainees are genuinely dangerous folks and, therefore, I don’t expect to see all of the evidence that the government may have against them since, for me to see it, necessarily everyone must also be able to see it, including the enemy.
I think this might bring up another point. I don’t favor secret evidence for criminal trials but, then again, criminal trials rarely involve state secrets, the revealing of which might endanger our national security and when they do, I don’t expect to see those state secrets revealed publically. On the other hand, almost everything in warfare involves the necessity for secrecy, the revealing of which may endanger our national security. At any rate, this is the reason that I am willing to accept a greater need for secrecy in the instance of GITMO detainees than I am in ordinary criminal cases.
September 24th, 2007 at 8:25 pm
Christopher,
You also mention the administration’s fear campaign. That’s the 1984 idea of always having a scapegoat for the people to fear and hate. In other words, you see the GITMO detainees being Bush’s version of Hitler’s Jews/gypsies/gays only without the systemic extermination pogrom.
I think I understand you now.
September 24th, 2007 at 9:21 pm
Craig, you will have to forgive me if I don’t take the time to respond. My son’s closest friend committed suicide last night and my son has never lost anyone close to him in that way before.
He left a wife and 4 little children and many people who loved him in spite of his long fight with mental illness. Medicare had just fucked him on his medications, denying him coverage for meds he had been taking forever and he was trying to handle life on top of that..it was too much for him I guess…
September 24th, 2007 at 9:38 pm
Dusty,
Hey, go. I sympathize. A week and a half ago, I buried one of my best friends from high school and beyond. My sympathies to your son and to all who knew and cared about him.
September 24th, 2007 at 10:13 pm
Um, that is, who cared about his friend.
September 25th, 2007 at 1:58 am
Craig,
The benefit is in not admitting you were wrong. If you detain 100 people as combatants and 99 are not combatants, well, it doesn’t exactly inspire confidence. It is better, purely potlically, in that instance to keep insisting that most are terrorists and releasing them in dribs and drabs all the while proclaiming those you release are guilty so that it doesn’t look like you really screwed up initially. After all, prsion is full of people procaliming their innocence, so why should Gitmo be different?
Obviously, I hope, the situation isn’t that bad, but that’s a benefit. Not from deliberately impridoning innocent people initially, but in keeping innocent people longer than necessary so you don’t look like an incompetant boob.
And this may not be what happens, but, being a cynical bastich, it does make logical sense to me.
September 25th, 2007 at 5:57 am
Hopefully our armed forces did not just sweep up people and send them to prison. But in the confusion of war( the other side did not have uniforms) and because thy were relying on locals for help, who knows what the status of these people were. I , personally have no confidence in this administration to do any thing right.
The history of state secrets in this country is not to protect the country. Rather it is to protect the present administration. Given that this administration has classified more documents then most it can be assumed they have more to hide from the american public.
September 25th, 2007 at 8:20 am
There was an article in todays paper about one of the prisoners who is canadian. Seems a judge had determined that he was not an ememy combatan. The military then turned around and said the court was not the proper venue and they were going to use their military tribunal to try him as a terrorist.
Now i obviously have very little knowledge of the facts of the case. However it seems to me to be further proof that once you are in the system the military ( and this administration) will do whatever they can to keep you in the system.
September 25th, 2007 at 12:07 pm
Chris, Paul, Dusty,
Thank you for clearing that up for me. I think I definitely had the wrong idea there for a while. I’m following you now.
I do think that, given the circumstances, particularly the fact that no one (or close to no one) was fighting in uniform, there were, no doubt in my mind, probably false positives but doesn’t it seem to any of you (as it seems to me) that this is an inevitable function (another feature rather than a bug) of the enemy not fighting in uniform? They’re the ones breaking the conventions and international laws of warfare. It is they that caused the confusion in the first place, making it impossible, in some cases, to know who was just a civi in the wrong place at the wrong time, or a genuine combatant who, the moment his ammo was spent or we got too close, dropped his weapon a few yards away and then acted like a civi when our troops got to him and captured him? It seems to me that people are blaming Bush for a problem caused primarily by the enemy. At least that’s the way it looks from where I’m sitting.
Christopher,
They’ve classified more documents because we’re in the midst of two hot wars. They’ve classified more information because they DO have more to hide but not, as you seem to assume, from the American people but from the enemy. Of course they’re skittish with information. We were successfully attacked from within our own country and, in this global information age, there’s no such thing as local information. All information leaked to the New York Times and published in the morning will be read by eyes in every country in the world that same afternoon. Given the secrets already leaked by our own people within our own spy agencies and the willingness of our own news agencies to be complicit in the leakers’ treachery, can you blame them, really? I can’t.
Maybe it’s just because I’m not on the opposite side of the administration on lots of important issues, because I’m a brain-deficient conservative, or something else addling my brain but I am much more concerned that more Americans are going to die here at home or abroad than that my phone lines are going to be wiretapped. It may seem trite to say but if the government is wiretapping every one of my phone calls, international or domestic, reading every one of my emails, watching me via hidden wires and listening to my every word with sophisticated bugs and reading every word I type at my computer, are aware of every book I check out of the library or buy at Barnes & Noble…so what? Aside from them wasting a lot of time and man power (which is why I don’t believe that they are doing any of those things against anyone without at least some reason for suspicion which may not rise to the level of reasonable grounds that would be acceptable to a judge) why should I care? [Editor: you know you’re going to be quoted Benjamine Franklin’s quip about short term security and liberty. Me: yes, yes, I know but really, that’s just a quip; it doesn’t answer the question.] What I care about is that people who want to hurt Americans are being investigated, caught, tried and punished or, at least, that their plans are being broken up before they kill people and the danger that they, themselves, pose to this nation and its people is neutralized.
That’s the government’s first and most important job…keeping our people safe. It’s why I gladly pay taxes even though I may not agree with the way they spend ever dollar. It’s why I put up with government in spite of a fairly wide streak of libertarianism and small-government conservatism: because I know that government is a necessary evil because individuals, without government, are at the whim of the stronger and of those uninclined to let other people live in peace, of those who enjoy wielding power over others and hurting others. Government is inevitable. The only question is whether it will be good governance or bad (or, rather, on a scale of better or worse) and whether I will have a say in that governance. All other things being equal, I’ll take our form of government over all others. Individual leaders come and go. Some are better, some are worse…and I guess I’ve gotten off track here.
Anyway, I’ll stop babbling now.
Craig R. Harmon
September 25th, 2007 at 1:19 pm
Craig, your buying into their fear-factoring. Its your right to do so..but with our military strained to the breaking point, I think we would be much safer with our troops at home than spread all over the damn globe.
All the secrecy is, in my opinion, just a way to keep us in the dark about what is going on down at Gitmo. Its a way to keep their secrets about how they railroad these individuals. Not every one of them were picked up making bombs or lobbing them at our soldiers. over 500 were held for YEARS and then..just suddenly released back to their own countries..that sir, is total bullshit and it shows the lack of ethics this administration has regarding due process and the rule of law.
saying someone is a terrorist doesn’t make it so. If the information was gathering using terrorist tactics like torture, then it is even less credible.
September 25th, 2007 at 1:45 pm
I say again that the history of secrecy in this country is to hide information from its citizens.With this administration it is particituly high. I mean the vice presidents visitor log is a secret document.
We also differ in what we consider the governments primary job. I believe it is to secure my liberty( in theory this the reason all of our soldiers have died for). If this increases my chances of dying from some nut job who want to blow himself up so be it. However if the government truly wants to promote the safety of the american people they would be, at the very least, virally in favor of gun control if not an out right ban. Also they would be for health insurance coverage for everyone. Both of these kill more people then any terrorist will.
I would also keep in mind the Stasi. They attempted to keep track of all things going on in East Germany. They were swamped with crap and were a lot more inefficient because of it. While our technology is better, there is a lot more information to sort through.
September 25th, 2007 at 2:41 pm
Here is the article Chris is talking about I think:
http://news.lp.findlaw.com/ap/p/56/09-25-2007/66b100149d518c6c.html
-Siding with the Defense Department, a U.S. military appeals court is overruling a judge who threw out terrorism charges against a Guantanamo Bay detainee.
The U.S. Court of Military Commission Review ruled that a military court set up by the Bush administration was the proper venue to decide whether Canadian citizen Omar Khadr is an “unlawful enemy combatant” and to try him on terror charges.
The ruling reverses a military judge’s June 4 holding that the tribunal system created by Congress lacked the authority to try detainees unless they were first determined to be unlawful enemy combatants.
That ruling threatened to force the Pentagon to start over with tribunals for a number of detainees. Pentagon officials argued that the June 4 ruling was just a matter of semantics and was insufficient to dismiss the case.
Monday’s decision, the first ever by the newly formed appeals court of military officers, agreed.
The judges said the trial judge “erred in ruling he lacked authority … to determine whether Mr. Khadr is an `unlawful enemy combatant’ for purposes of establishing the military commission’s initial jurisdiction to try him.”
The court battle over the Khadr case represents the latest problem for the Bush administration’s military commissions system, which exists outside the traditional military and civilian rules of justice. In 2006, the Supreme Court ruled that President George W. Bush’s plan to try Guantanamo Bay detainees in military commissions violates U.S. and international law.
September 25th, 2007 at 2:42 pm
So they all aren’t listed as enemy combatants yet Craig. We hold them for years with no charges or designation..wrong on every level.
September 25th, 2007 at 4:37 pm
No, Dusty. Read that bolded portion again. It says they have not been ruled unlawful enemy combatants. They have all been ruled enemy combatants. For the purposes of this case being discussed in the article, namely for trying the detainee for war crimes, it was held that they must be adjudged to have been unlawful enemy combatants. After all, the rules of warfare are such that lawful combatants cannot be tried or punished for lawful acts of war. About that, I disagree with the administration. It does matter whether the detainees were judged to be just enemy combatants (as they were) or unlawful enemy combatants (as they were not). So, in this case, I think the June 4th military judge got it right and the new ruling is wrong. If they have to conduct new tribunals for all the detainees to determine whether they are lawful or unlawful enemy combatants, then so be it.
But so far as I can tell, they have all at least been ruled enemy combatants, that is, that they were not innocent civilians.
September 25th, 2007 at 4:54 pm
Christopher,
Certainly, securing the blessings of liberty is another purpose of government. As the Preamble of the Constitution put it:
Now I don’t suppose that there was any particular intention to indicate any particular ranking of importance while compiling that list of reasons for ordaining and establishing the Constitution (although it would seem to me that, given the failure of the Articles of Confederation, that were evident to all, the formation of a more perfect union was at the forefront of most of the conventioneers’ minds). Nor did I intend to say that security was the only purpose of government. It just seems to me that if the nation is insecure, questions of liberty are moot. Liberty is, as the Preamble puts it, a blessing. Security is a necessity. Without it, liberty is worthless.
Consider the anarcho-libertarian position that not only is government not essential but that it is not optimum and, perhaps, is a great curse. This I could never understand. As I look at human nature, in the absence of government, with sole claim to the lawful use of force (except for individual self-defense), society is reduced to the law of the jungle, the weak being consumed by the strong and ruthless. In such conditions, you get Iraq: armed bands of thugs and militias massacring one another or inner-city gang marking off territories and vying for control of terf and illegal enterprises. Where, within such environs, is there room for concerns for liberties? People will have such liberties only as the leaders of such gangs and militias will permit within their own internal codes of morality with little or no voice for individuals to either ask for liberty or, short of violent overthrow, seek redress of grievances. First and foremost, in my opinion, a people must be secure. After that, liberties can be discussed, delimited and protected.
At least, that’s the way I see it.
Craig R. Harmon
September 25th, 2007 at 5:30 pm
There is certainly a balance act between security and liberty. The way I see it you give more to security and I give more to liberty. I think this administration has crossed the line,
By the way the republicans have always said that they were against government. In fact they have said that the one good thing about the deficit is that eventually it will cause the government to essentially collapse.
September 25th, 2007 at 5:34 pm
Or look at it this way. The psychologist, Abraham Maslow, is perhaps most well known for his development of the individual hierarchy of needs, the most primitive and basic being Physiological: breathing, water, food, shelter, rest, sex, and so forth, the needs to the left being the first and foremost, without which life cannot long endure. Next came Safety: for self, family, clan, economic security, security of resources. Then Love/Belonging: friendship, family, sexual intimacy. Then Esteem: self-esteem, confidence, achievement, respect of others, respect by others. Finally, there is Self-actualization: morality, creativity, spontaneity, problem solving, lack of prejudice, acceptance of facts. [Source for all the above on the hierarchy of needs is the Wikipedia article of the same name.]
Now, it seems to me that, on a national level, security needs are the more basic, more akin to Maslov’s physiological and security needs and the blessings of liberty more akin to the self-actualization needs. Yes, yes, there are always the “Give me liberty or give me death” heroes but most of us will accept life, even in the absence of liberties. For this reason, most people in prison will rather take their time in prison than commit suicide, those thrown into gulags in Russia would work themselves to death rather than suicide and those who lived under Communist rule would live with little liberty and great oppression, few resources and no recourse for redress of grievance rather than either attempt escape, commit suicide, or attempt an overthrow of their oppressive government. For most people, security is primary, liberty is secondary.
September 25th, 2007 at 5:38 pm
Christopher,
Sorry. My last comment was posted before I saw your last comment. Yes, I think you’ve analyzed our respective positions correctly.
Well, I hope nobody in the administration truly believes that government would or should ever collapse, literally. That’s madness. I think they were more or less speaking figuratively, exaggerating.
September 26th, 2007 at 4:40 am
Craig,
The problem comes when people set liberty and security up as opposites, as both sides have done. It is true that without a police state you cannot have absolute security (and even then it’s dicey), and you point out what liberty without security looks like. The difference betwen us is you lean slightly more towards security at the expense of some liberties, and feel the trade is worthwhile, while most people here do not. It’s not as if there’s a yawning chasm between the points of view. And it doesn’t mean that you don’t care about liberty or, vice versa, that others here do not care about security. We just set the critical point at different points in that continuum. And I’m sure the ciritical point changes depending on how much people trust the administration in question.
September 26th, 2007 at 8:49 am
Paul,
Yes. That is an excellent analysis. Thank you, Paul.