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Current News |
Court Asked to Limit Lawyers at
Guantánamo
By WILLIAM GLABERSON
Published: April 26, 2007
http://www.nytimes.com/2007/04/26/washington/26gitmo.html
The Justice Department has asked a federal appeals
court to impose tighter restrictions on the hundreds
of lawyers who represent detainees at Guantánamo
Bay, Cuba, and the request has become a central
issue in a new legal battle over the
administration’s detention policies.
Saying that visits by civilian lawyers and
attorney-client mail have caused “intractable
problems and threats to security at Guantánamo,” a
Justice Department filing proposes new limits on the
lawyers’ contact with their clients and access to
evidence in their cases that would replace more
expansive rules that have governed them since they
began visiting Guantánamo detainees in large numbers
in 2004.
The filing says the lawyers have caused unrest among
the detainees and have improperly served as a
conduit to the news media, assertions that have
drawn angry responses from some of the lawyers.
The dispute is the latest and perhaps the most
significant clash over the role of lawyers for the
detainees. “There is no right on the part of counsel
to access to detained aliens on a secure military
base in a foreign country,” the Justice Department
filing argued.
Under the proposal, filed this month in the United
States Court of Appeals for the District of Columbia
Circuit, the government would limit lawyers to three
visits with an existing client at Guantánamo; there
is now no limit. It would permit only a single visit
with a detainee to have him authorize a lawyer to
handle his case. And it would permit a team of
intelligence officers and military lawyers not
involved in a detainee’s case to read mail sent to
him by his lawyer.
The proposal would also reverse existing rules to
permit government officials, on their own, to deny
the lawyers access to secret evidence used by
military panels to determine that their clients were
enemy combatants.
Many of the lawyers say the restrictions would make
it impossible to represent their clients, or even to
convince wary detainees — in a single visit — that
they were really lawyers, rather than interrogators.
Jonathan Hafetz of the Brennan Center for Justice at
New York University, a lawyer who has helped to
coordinate strategy for the detainees, said the
government was trying to disrupt relationships
between the lawyers and their clients and to stop
the flow of public information about Guantánamo,
which he described as a “legal black hole” before
the courts permitted access for the lawyers in 2004.
“These rules,” Mr. Hafetz said, “are an effort to
restore Guantánamo to its prior status as a legal
black hole.”
The dispute comes in a case in which detainees are
challenging decisions by military panels that they
were properly held as enemy combatants. The Justice
Department’s proposed rules could apply to similar
cases that lawyers say are likely to eventually
involve as many as 300 of the roughly 385 detainees
now held at Guantánamo.
Some of the detainees’ lawyers say the Justice
Department proposal is only the latest indication of
a long effort to blunt their effectiveness, which
they say was evident in statements of a senior
Pentagon official early this year. The official,
Charles D. Stimson, deputy assistant secretary for
detainee affairs, resigned after he was criticized
for suggesting that corporations should consider
severing business ties with law firms that
represented Guantánamo detainees.
Under the current rules, legal mail is inspected for
contraband but is not read. The lawyers, who have
security clearances, are presumed to be entitled to
review classified evidence used against their
clients.
There is no limit on the number of times lawyers can
visit their clients. Some say that they have been to
Guantánamo 10 or more times and that they have
needed the time to work with clients who are often
suspicious and withdrawn.
Justice Department officials would not comment on
the proposal, which is scheduled to be the subject
of a court hearing on May 15.
The filing used combative language, saying lawyers
had been able to “cause unrest on the base” and
mentioned hunger strikes, protests and disobedience.
An affidavit by a Navy lawyer at Guantánamo, Cmdr.
Patrick M. McCarthy, that accompanied the filing,
said lawyers had gathered information from the
detainees for news organizations. Commander McCarthy
also said the lawyers had provided detainees with
accounts of events outside Guantánamo, like a speech
at an Amnesty International conference and details
of terrorist attacks.
“Such information,” his affidavit said, “threatens
the security of the camp, as it could incite
violence among the detainees.”
Several detainees’ lawyers involved in some of the
incidents denied that they had caused security
problems. Neil H. Koslowe, a lawyer at Shearman &
Sterling in Washington, called the assertion a
“McCarthy-era charge” that was not supported by the
evidence.
The dispute over the lawyers’ role is one of the
first issues the appeals court in Washington will
have to decide as it opens a new chapter of the
legal battle over Guantánamo. In 2005, Congress
designated that court as the forum for detainees to
challenge directly decisions made by the Pentagon’s
combatant status review tribunals designating them
as enemy combatants.
But many detainees’ lawyers have resisted filing
petitions to review those decisions because Congress
narrowly defined the arguments the appeals court
could consider. The law said the court could review
whether a panel’s decision “was consistent with the
standards and procedures” set forth by the Pentagon.
Instead, many detainees’ lawyers pursued habeas
corpus petitions, using the centuries-old legal
proceeding to ask a judge for release from
imprisonment. But after a complex trip through the
courts, Congress last year passed a provision
intended to strip courts of the authority to hear
habeas corpus cases involving Guantánamo detainees.
A divided panel of the federal appeals court in
Washington upheld that provision in February. And
early this month, the United States Supreme Court
declined to review that decision. Two justices, John
Paul Stevens and Anthony M. Kennedy, said that
before the Supreme Court could again consider
whether Congress was permitted to strip the courts
of the ability to consider the habeas corpus cases,
the detainees had to try to complete the appeals
court review of their enemy combatant decisions.
As a result, much of the focus in the legal battle
is now shifting to the appeals court. Scores of
petitions seeking review of the combatant-status
rulings are expected to be filed in the coming
weeks, according to the Center for Constitutional
Rights, an advocacy group that has been coordinating
the detainees’ lawyers. The May 15 arguments will
focus on rules that could apply to all of those
cases.
Lawyers say they are pressing ahead with the more
limited review process in the appeals court as part
of an effort to set the stage for a return to the
Supreme Court. Some lawyers said that while they may
lose, that would allow them to argue to the Supreme
Court that the reviews were so limited that the
detainees needed the more sweeping consideration
permitted in habeas corpus cases.
But government lawyers, too, are developing new
strategies in the wake of the Supreme Court action
this month. They say that Congress and the courts
have determined that expansive habeas corpus
petitions are not available to the detainees.
As a result, they say, rules like those that allowed
unlimited visits with detainees are no longer
necessary as the detainees pursue the more limited
appeals court review.
But, while arguing that detainees have no right to
lawyers, the Justice Department filing said the
government was giving the Guantánamo detainees
enough access to lawyers so that “the court’s review
will be assisted by having informed counsel.” |
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