26 Apr Balkin on Defending GITMO Detainees
For more on the Bush administration’s never-ending struggle to deprive alleged terrorists of meaningful legal representation, see this excellent post by Jack Balkin at Balkinization. Here is a snippet from the disturbing New York Times article that Balkin discusses:
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.
[snip]
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.”
The whole article is well worth a read — and make sure not to miss this government argument:
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.”
Translation: If the Guantanamo detainees had a meaningful opportunity to challenge their detention, they might need effective representation. But Congress has taken that opportunity away from them, so they no longer need it. Troubling? Not a bit: in its boundless generosity, the Bush administration will still permit the detainees to be “assisted” by “informed counsel” (assuming, of course, that the government officials in the case deign to turn over the secret evidence against the detainee to them). The detainees should be thanking the administration, not criticizing it. After all, lest they — and we — forget, “[t]here is no right on the part of counsel to access to detained aliens on a secure military base in a foreign country” anyway.
Orwell would be so proud.
One can only hope that Stevens and Kennedy J.J. will see such an approach as the creation of unjustifiable injury on the Guantanamo detainees and carry through on their threat in the denial of cert in Boumedienne. Honestly – this is just beyond the bounds of comprehension.
If you saw Tenet on 60 minutes one can see that these detainees are existential threats to the self-image of all the persons saying “We do not condone or do torture.” What the representatives of the state say and what these detainees say was done to them is too much of a contradiction. To eliminate the contradiction, the representatives of the state does everything to eliminate the existential threat to their self-worth – to silence the threatening other vision. Of course, this can be psychologically reconciled through seeing these individuals as existential threats to the state – enemies of the state – against whom all can be done as the ends justify the means. Reminds me of the discussion of thanatophores in a book entitled the Psychopathology of Institutional Links.
Very twisted stuff that goes even beyond Orwell.
Best,
Ben
I’ve argued this on SCOTUS blog, but I still think RICO covers this Gitmo nonsense. It worked just fine in 1993, but then again, we were not at ‘war’ … yet, does this mean all drug dealers can go to Gitmo as part of the war on drugs? What if the US declared war on poverty? Nonetheless, the US has not enjoyed the experience of the civilian courts when it had to deal with Moussaoui, so it works (as long as the Bush administration can pull it off) if the government can run the show according to its own rules. In this case, the governments arguments for secrecy work both to keep things out just as much as they keep things in.