Cassel on the War Against Defense Attorneys

by Kevin Jon Heller

Elaine Cassel has an excellent editorial in FindLaw today about the Bush administration’s war on attorneys who have the temerity to defend alleged terrorists. In addition to Lynne Stewart and Lt. Commander Swift, she also discusses the government’s investigation of Clive Stafford Smith, who defended the three GITMO prisoners who committed suicide last June — an act described by the GITMO commander, as Cassel notes, as “asymmetric warfare”:

Lawyers for Guantanamo detainees also are restricted in what they can say about the prison and their clients’ cases.

The government may even be considering a case against a Guantanamo detainee’s attorney. This June, three Guantanamo prisoners committed suicide. After the suicides, the prison commander charged that rather than being acts of desperation, they were a form of organized “asymmetric warfare.” Now attorney Clive Stafford Smith, who represents a fourth Guantanamo prisoner, may be the target of the investigation.

Smith’s client, Mohammed el Gharani, has faced weekly government interrogations. And Smith told the Associated Press in an email that “[Gharani’s] interrogators have repeatedly questioned him about my purported role in the suicides.” Stafford also stated in the email that “The interrogator said I told my clients to kill themselves, and word was passed to the three men who did commit suicide.”

Smith says flatly that he has no connection at all to the suicides, and he say the Defense Department, in charge of Guantanamo, may be trying to shift blame to him.

It’s not only Smith’s ability to represent Gharani that has been destroyed: In the course of the investigation, the Navy has seized more than a thousand pages of documents from detainees, including attorney-client materials and exculpatory evidence to be used in military tribunals, such as affidavits obtained at great effort from family members.

The whole editorial is well worth a read. It’s available here.

One Response

  1. Professor Heller,

    Do you think it is fair to equate Stewart with Swift? As I understand it, Stewart has admitted that she went to far in her representation, and basically threw herself at the mercy of the court and got, given the circumstances and her potential sentence, a fairly light sentence.

    As to Swift, no one has questioned this man’s service or integrity. I have to say, putting the two of them in the same sentence is frankly offensive and makes you argument far less credible.

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