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Court Demands Access to "Classified" Evidence, But Gags Lawyers

Gains and Losses at Guantánamo

by ANDY WORTHINGTON

Last Friday, the day after a craven/comatose Senate rejected even the merest mention of plans to transfer Guantánamo detainees to prisons on the US mainland, judges in the Court of Appeals for the District of Columbia Circuit advanced the detainees’ faltering legal status by ordering the government to hand over classified information relating to them, frustrating attempts by the Department of Justice to insist that the court should only be given the information included in their hearings at Guantánamo, and not, as the New York Times described it, the "more expansive" information the government might have collected on a detainee.

The court’s decision relates to the first cases filed under a provision in the Detainee Treatment Act of 2005 for "limited appeals court review" of the tribunals at Guantánamo (the Combatant Status Review Tribunals), which were convened to assess whether or not the detainees had been correctly designated as "enemy combatants," and which have been widely condemned as kangaroo courts, because the detainees were not allowed legal representation, and were not allowed to either see or hear the "classified evidence" against them.

Noting, as the Times put it, that "Congress said the appeals court’s review of the combatant status hearings was limited to determining whether the Pentagon followed its own procedures, and whether an enemy combatant finding was supported by a preponderance of the evidence," the appeal court judges said that a meaningful review of the tribunals would not be possible "without seeing all the evidence, any more than one can tell whether a fraction is more or less than half by looking only at the numerator and not the denominator." Writing rather less obliquely, the judges explained, "Counsel [the government] simply cannot argue, nor can the court determine, whether a preponderance of the evidence supports the Tribunal’s status determination without seeing all the evidence. Therefore, we must presume counsel for a detainee has a ‘need to know’ all Government Information concerning his client, not just the portions of the Government Information presented to the Tribunal."

Sabin Willett, a lawyer who represents six Chinese Muslim detainees in Guantánamo (and whose case was one of those considered by the Court of Appeals), called the ruling "a resounding rejection of the government’s effort to hide the truth," but what’s perhaps more interesting, in the long run, is whether the "more expansive" evidence concealed by the government will be anything more than a mirage. It has long been known that the unclassified "evidence" against the majority of the detainees consists of almost every shred of hearsay and of false allegations obtained through bribery, coercion and torture that the government could muster, and in the murmurs that have occasionally seeped out after lawyers have reviewed the "classified evidence," the most shocking revelation about the Pandora’s Box of "classified evidence" is that it contains nothing of substance whatsoever.

Readers should also note, however, that the appeal court’s decision includes what the Times referred to as "significant victories for the government"; in particular, a decision "allowing the Pentagon to limit the subjects that the lawyers can discuss with detainees and authorizing special Pentagon teams to read the lawyers’ mail and remove unauthorized comments." This is disturbing news. Ever since lawyers were first allowed access to the detainees in the wake of the Supreme Court’s verdict in Rasul v. Bush in June 2004, the administration has done everything in its power to disrupt the process, from intimidating prisoners to obstructing the lawyers themselves.

One lawyer noted that several prisoners told him "they had been interrogated by people who claimed to be their lawyers but who turned out not to be," the recently released detainee Juma al-Dossari reported that several interrogators told him that his lawyers were liars, and Fouad al-Rabia, a Kuwaiti who is still held in Guantánamo, was told that "if he complained to his lawyers about conditions at Guantánamo Bay he would be kept there for life." As long ago as October 2004, US District Judge Colleen Kollar-Kotelly, responding to lawyers’ complaints, ordered the Pentagon to stop eavesdropping on lawyer-client conversations, which she described as a "bedrock" American principle, and in the last year the pressure on lawyers has increased markedly.

In the wake of the suicides of three men in Guantánamo in June 2006, the authorities illegally confiscated large amounts of lawyer-client correspondence, and, outrageously, accused Clive Stafford Smith (whose legal charity, Reprieve, represents several dozen detainees at Guantánamo) of inciting the suicides. Then, in April this year, the administration floated proposals that have resurfaced in amended form in the appeal court’s decision on Friday: to restrict lawyers to only three meetings with their clients, and to be allowed to read their correspondence. In a court filing, the Department of Justice alleged that attorney access via the mail system had "enabled detainees’ counsel to cause unrest on the base" by informing detainees about "military operations in Iraq, activities of terrorist leaders, efforts in the War on Terror, the Hezbollah attack on Israel and abuse at Abu Ghraib prison," a claim which led Barry M. Kamins, the President of the New York City Bar association, to write to Attorney General Alberto Gonzales, declaring, "This is an astonishing and disingenuous assertion," and to point out that "many detainees have been held in solitary confinement for prolonged periods and have lost hope of a fair hearing to demonstrate their innocence."

Although the plans appeared to have been dropped, after an outcry by legal groups and complaints in Congress, when Rear Admiral Harry H. Harris, the commander of Guantánamo, conceded that they were measures drawn up in the wake of the suicides that were "no longer warranted," and the Department of Justice admitted that it was "no longer seeking to incorporate a three-visit threshold for the number of counsel visits," the cases on Friday brought them lumbering back to malignant life. Here, once more, were the allegations of lawyers fomenting unrest by writing about current affairs, and the government’s assertions that "such information can ‘incite detainees to violence’ or cause ‘unrest’ such as a riot, hunger strike, or suicide ­ as, indeed, it has done in the past."

While the lawyers insisted that, as established by a legal precedent, the attorney-client privilege was intended to "encourage full and frank communication between attorneys and their clients and therefore promote broader public interests in the observance of law and the administration of justice," their assertions were, rather disturbingly, overruled by the judges, who, "[w]ithout expressing any view as to whether the attorney-client privilege applies in this context," agreed with the government that "past breaches" by "some counsel for detainees" justified the government’s proposal to "narrow the topics about which all counsel may correspond with a detainee and to hold all counsel accountable by screening the legal mail they send to their detainee clients."

The Court of Appeals is to be applauded for its demands that the government release all information relating to the detainees, but its evidence-free backing of the government’s claims that lawyers have stirred up trouble in Guantánamo in the past, and its approval of plans to limit the subjects available for discussion between lawyers and their clients, and to employ human snooper dogs to monitor their mail, should be resisted as yet another shabby attempt by a paranoid administration to undermine the "bedrock" American principle of lawyer-client confidentiality, and to prevent detainees from exercising what, in some cases, is their only lifeline to sanity: a meeting with a human being who is not a part of the military machine that has kept them imprisoned without charge or trial for five and a half years.

Note: For a startling insight into the emptiness of the "classified" evidence against detainees, read this article by Candace Gorman, lawyer for Libyan detainee Abdel Hamid al-Ghizzawi.

ANDY WORTHINGTON (www.andyworthington.co.uk) is a British historian, and the author of ‘The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison’ (to be published by Pluto Press in October 2007).
He can be reached at: andy@andyworthington.co.uk