Ban All the Lawyers
Prisoners at Guantanamo don’t really need them, or so says the Justice Department.
THE BUSH administration is ruthlessly exploiting the perverted system of justice approved by Congress last year for foreign prisoners at Guantanamo Bay, Cuba. By stripping the detainees of the ancient right of habeas corpus, Congress drastically limited their ability to challenge their detentions in U.S. courts. Now the administration is citing that limitation as an excuse to curtail the prisoners’ access to the civilian lawyers who have been representing them.
As first reported Thursday by the New York Times, the Justice Department has asked the federal appeals court charged with handling all appeals of the detentions to limit lawyers to three visits with their clients; allow their correspondence with prisoners to be opened and read; and give government officials the power to deny the lawyers access to evidence. If accepted by the Court of Appeals for the D.C. Circuit following a hearing next month, the rules would make it all but impossible for the hundreds of lawyers working on Guantanamo cases, many of them without compensation, to continue defending prisoners.
The government’s argument is that there is not much need for such representation. Under the scheme approved by Congress, review panels set up by the Pentagon are empowered to judge whether Guantanamo detainees are “enemy combatants” subject to detention and to review their status periodically. The prisoners are not allowed lawyers at those hearings, and their only appeal can be to the D.C. Circuit — which, in turn, is limited to reviewing whether the Pentagon correctly followed its own procedures. That leaves a defense lawyer little to do, claims the Justice Department.
The administration’s real concern, of course, is not about wasting the attorney’s time. The military authorities at Guantanamo have developed a deep antagonism, tinged with paranoia, toward the lawyers — an attitude exemplified by the comments of former detention chief Cully Stimson, who suggested that the law firms sponsoring the pro bono work should be punished by their corporate clients. The Pentagon insinuates that the lawyers are inspiring protests by the prisoners or passing their messages to the outside world.
In fact, civilian lawyers have provided an invaluable service at Guantanamo. Their lawsuits have forced the few reforms that have taken place at the prison. They have rightly reported publicly on hunger strikes, suicide attempts and abusive treatment. Their investigations have made clear that many of those held at Guantanamo are not dangerous terrorists but Afghans forced into cannonfodder service by the Taliban, or Arabs who were swept up and sold by Pakistani bounty hunters to the CIA.
The administration’s latest maneuver demonstrates anew why the legal system that Congress approved is shamefully inadequate. Its logic is that Guantanamo prisoners do not need the right of habeas corpus because they are able to make their cases before review panels and appeal to a federal court. Yet now the administration itself is arguing that that system of review and appeal is so attenuated that prisoners hardly need lawyers. Democrats in Congress promised to correct this travesty by restoring habeas corpus to Guantanamo; so far they have done nothing. That leaves it to the appeals court to reject the administration’s proposed restrictions and prevent the injustice at Guantanamo from growing still worse.