Revisiting Guantánamo

The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."

Article I, Section 9, Constitution of the United States of America


A little less than a year ago, highwayscribery reported on the comings and goings of one Heather Rogers, an attorney representing detainees at the United States base in Guantánamo, Cuba.

That piece was entitled: “Gitmo Girl (or Lady Lawyer in Yemen.)”

It recounted Ms. Rogers’ adventures through Yemen (on the Arabian peninsula) and provided an in-close look at true circumstances and stories of these purported terrorists detained by the world’s one-time preeminent advocate of democracy and human rights.

It was the story of innocent schlumps getting caught in a superpower dragnet through the rugged mountains dividing Afghanistan and Pakistan, during the U.S. war dislodging the Taliban from power in the former.

Moved to a sort of extra-territorial refuge not subject (says the Bush administration) to our nation’s laws, nor those of the international community, these guys were sitting around in cages, incommunicado from family members or legal advocates, mostly unaware of the charges against them.

Ms. Rogers is an employee of Federal Defenders of San Diego Inc. – a unique, nonprofit community defender organization, funded by the U.S. Government to defend the people the U.S. Government brings charges against – who somehow ended up hopping around the world on behalf of certain Guantánamo detainees.

Anyway, last Thursday (Feb. 15), she was joined by colleague Stephen Demik for an update on what Amnesty International has referred to as an “American gulag.”

Their remarks were prefaced by a review of the legal framework compliments of Marjorie Cohn, a professor at the Thomas Jefferson Law School, where the two-hour symposium was conducted.

Cohn noted that in the wake of the 9/11 attacks and the subsequent WAR ON TERROR, Guantánamo was identified by the administration as a “legal black hole” where some 750 detainees could be held indefinitely, without being charged, while subjected to torture and inhumane treatment.

Cohn said that when some prisoners began hunger strikes out of desperation, they were force-fed thick plastic tubes funneling nutrition to their empty stomachs. Not surprisingly, three detainees have died in custody.

Three deaths nobody must answer for.

A long time later, (for a detainee) in 2004, the U.S. Supreme Court stepped in, via the case Rasul v. Bush and said detainees had the right to invoke habeas corpus and find out exactly what the legal foundation for their detention was or be released without further adieu.

“The ink was barely dry,” Cohn told the gathering of 40 sapling legal minds, “when the Bush administration cooked up their Combatant Status Review Tribunals (CSRT), or military tribunals, to ‘comply’ with Rasul.”

The military tribunals, designed to “replace” habeas corpus, precluded witnesses, evidence, or the presence of a true attorney. Amnesty International said that a prisoner’s right to the presumption of innocence was flouted by the CSRTs, and that international covenants on civil and detainee rights were also violated.

Congress then passed the Detainee Treatment Act, which stripped the Guantánamo guests’ right to habeas corpus the Supreme Court just said they possessed.

“The Supreme Court stepped in again,” noted Cohn, in the case of Hamdan v. Rumsfeld and ruled, with John Paul Stevens writing for the majority, “that Congress did not intend to deny court jurisdiction when passing the Detainee Treatment Act.

“Unrepentant,” Cohn recounted, “the administration sent in Dec. 2006, seven detainees to Guantánamo for trial by CSRT.” The (p)resident then “rammed” the Military Commissions Act through Congress that put the finishing touches on his efforts at denying myriad Constitutional protections to these folks.

Among other charming features, that law defines an "enemy combatant" as any person who engages in hostilities against the United States (Okay), or "supports" hostilities against the United States (hmmm), or anyone who "challenges or speaks out against government policy" (!)

As former White House mouthpiece Ari Fleischer said immediately after 9/11, "People need to be careful of what they say, careful of what they do."

On Monday, a Court of Appeals ruling upheld central provisions of the law effectively stripping detainees of the right to relief through civilian courts.

Which brings us to the presentations of Ms. Rogers and Mr. Demik, who must both operate within the framework so ably depicted by Professor Cohn on Thursday and confirmed by the federal appeals court days later.

Rogers opened her remarks by noting that the administration’s policy toward detainees on Guantánamo is, “a travesty that we should all be angry about. It is only a matter of time before they try to bring it back to the mainland.”

The young legal advocate has been working on the Guantánamo detainee cases since Nov. 2005 and noted that, “these litigations really defy belief.”

Nonetheless, she opined, the administration’s understanding of the base on Guantánamo to be a legal “black hole,” wound up, “much to its dismay, as more of a ‘gray area’.”

The beginning of the detainees travails began with the filing of habeas corpus “postcards” in their native language seeking the free assistance of U.S. legal firms. Federal Defenders of San Diego Inc., was appointed four cases, three from Yemen, and one from Afghanistan.

Upon dumping the detainees of its Afghanistan war in Cuba, the administration told the world they represented the “hardened terrorists,” “the worst of the worst,” and the “most dangerous, best-trained, vicious killers on the face of the earth.”

But one of Ms. Rogers’ clients was obligated, by violence, to work for a powerful Afghani thief’s honey bee project and was rounded up when U.S. military forces raided the same thief’s compound. Sent to Guantánamo, the man joined many others at “Camp X-Ray,” where he was placed in a cage exposed to the sun, like “animals in a zoo,” she said, before being released and sent home.

Rogers’ slide show contained a Central Intelligence Agency poster promising millions of dollars for those fingering Taliban collaborators, “Enough money to take care of your family, village, and tribe for all of your lives.”

“They put a bounty on heads,” said Rogers. “How could people resist the temptation to turn over foreigners, people they didn’t like, or the disenfranchised in exchange for these millions?”

Apparently they couldn’t. All told, 775 detainees were interned, 340 of whom have since been released, 110 that are ready for release, and 70 deemed “ready for trial” by Pentagon standards.

Of those released, two were clients of Rogers. Two more remain in custody.

With so many restrictions on legal rights, and the naturally disbelieving dispositions of their own clients, Rogers said a unique regimen of very public advocacy was required of she and her colleagues.

Prior to meeting her clients, she traveled first to Yemen. “The detainees interrogators had passed themselves off as lawyers and so we met their families who we hoped would inform them of our names, appearances, and intentions.”

In other words, the prisoners were trusting no one.

Investigation of the government’s claims against family and friends’ accounts was also part of the pre-meeting strategy.

While in Yemen, Rogers and other Center for Constitutional Rights attorneys began laying the groundwork for their clients’ eventual return. “Unfortunately, detainees have been released through a policy of ‘rendition’ to their home governments and subjected to more interrogation and torture. We wanted to let the Yemeni government know we were watching them.”

The group also sought to express their solidarity for human rights workers and families of the Yemeni prisoners. “It is thought of as dissent to help and support these people [the detainees] and we wanted to show them that the administration does not speak for all Americans.” she explained.

Finally, the legal defenders turned to the age-old tactic of increasing awareness of their cases through the dissemination of press reports; holding press conferences with Yemeni journalists and contacting others around the world for exposure.

Rogers recommended “American Gulag, Prisoners’ Tales from the War on Terror,” by Eliza Griswold for “Harpers” magazine as an excellent, long-hand account of stories beyond her own.

One Yemeni detainee, Abdulsalam (not a Rogers' client), was a prominent businessman on a work trip in Cairo, Egypt. “He was arrested and put on a CIA plane, waste-cuffed and gagged. He was then interned in a black [secret] prison in Afghanistan for two years; hung from the wall by chains, naked. His family had no idea where he had gone and he finally ended up at Guantánamo...He is still waiting there for justice.”

Stephen Demik focused more on conditions under which legal advocates are forced to work as well as those to which detainees are subjected.

The camp, “Gitmo,” is spread across two sides of Guantánamo Bay, prisoners kept on one side, lawyers alone on the other. “The paperwork and bureaucracy work are dumbfounding,” said Demik. “The security clearance takes four months and at one point I was accused of revealing trade secrets to Communist Russia.”

Which gives you an idea of the mind set Bush has brought to THE WAR ON TERROR.

“Any information you get [from interviewing clients], belongs to U.S. government and cannot be disclosed to anyone,” said Demik, further explaining that all notes compiled by defense attorneys are sent to a “secure facility,” in Crystal City, Virginia. “If you want to look at your notes, you have to fly there. Same for filing petitions or correspondence with your clients.”

He described the base layout as “surreal” with its Wal-Mart, KFC and McDonalds for U.S. military personnel, on the one hand, and authoritarian prison complex on the other. Halliburton, naturally, is working on a $30 million “upgrade” of the facility.

Now, the scribe wonders how the heck they did they get chosen for the job?

Prisoners, Demik said, are forbidden to talk in groups of more than three, are blindfolded during any transportation, subject to pepper spraying, sleep deprivation, beatings, mock executions, the infamous “waterboarding,” and anything else normally associated with a beacon of democracy and human rights.

Fried chicken anyone?