Obama Cramping Habeas’s Style at Gitmo

This New York Times editorial laments the Obama administration’s decision to prohibit lawyers representing Guantanamo detainees from visiting their clients, in a policy that “is imperiously punishing detainees for their temerity in bringing legal challenges to their detention and losing.”

In one case, the administration is saying that the Yemeni national Yasin Qasem Muhammad Ismail no longer has the right to meet with his counsel, David Remes, because his plea to be released was “terminated.” The Justice Department will only let them meet, it said in an e-mail to Mr. Remes, if he signs a new memorandum giving the government what Mr. Remes calls “absolute authority over access to counsel.”

A military officer would decide each time whether lawyer and client could meet. Mr. Remes could not use classified information he developed for the client without permission. He could not share what he learned from his client with other lawyers of detainees, as he could previously. He could not use it to help defend his client against criminal charges if the government brings them. He could not advocate for him with human rights groups.

Mr. Remes refused to sign. He and colleagues filed a motion this month with the federal magistrate handling disputes about lawyer-client visits at Guantánamo Bay. They argue that while their client is detained, “he retains the right to pursue any available legal avenues to obtain his release” and without “a full and fair opportunity to meet with counsel in a confidential privileged setting,” his “right to challenge his detention” means nothing.

Unmentioned in the Times piece is that the Obama administration has adopted the policy of holding detainees indefinitely even if they have been found not guilty or cleared for release by a judge.

Shaker Aamer, for example, has been held without charge at for over 10 years, and despite being cleared for release in 2007 he is still locked up. Aamer’s lawyers have claimed that he was “held in solitary confinement for 360 days at the time of filing, and was tortured by beatings, exposure to temperature extremes, and sleep deprivation, which together caused him to suffer to the point of becoming mentally unbalanced.”

Mohammed Ahmed al-Kandari, a Kuwaiti national, has been in Guantanamo for a decade without charge or trial. He is suspected of having been a member of al-Qaeda. But a legal study of his proceedings quoted the Tribunal’s legal advisor as saying, “Indeed, the evidence considered persuasive by the Tribunal is made up almost entirely of hearsay evidence recorded by unidentified individuals with no first hand knowledge of the events they describe.” He was tortured by US guards, including being kicked, beaten with a metal chain, put in stress positions for up to 36 hours, he “was drugged, his ears were plugged, he was diapered and a sandbag was shoved over his head.” His lawyer predicted a year ago that he may be indefinitely detained, even eventually cleared for release.

Abd al-Rahim al Nashiri, charged with plotting the attack on the USS Cole in 2000 and just now going through legal proceedings, was told by the US that even if he is found not guilty and acquitted of all charges, they don’t have to release him. His defense attorneys asked the government clarify whether it intends to continue holding him in military detention if he is found not guilty. Because al-Nashiri is being held in military detention, the government claims, he can be held for “the duration of hostilities,” regardless of his verdict.

Adam Serwer at Mother Jones wrote recently that even the partial system of habeas corpus granted to detainees,”essentially leaves detainees at Gitmo with habeas rights in name only, since the rules make it virtually impossible for detainees to win in court.” Given the fact that the Republican Party doesn’t object to the Obama administration’s policies in this regard, this issue is decidedly irrelevant. We will not hear about it in the upcoming Obama-Romney debates.

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