|Oregon State Bar Bulletin APRIL 2007|
the "no man's land" that is Guantanamo
By Melody Finnemore
As a law student, Sam Kauffman never imagined he would see the U.S. government imprison human beings indefinitely while denying them access to a court of law to challenge their imprisonment.
Now, 14 years later, as one of several Portland attorneys representing detainees at the U.S. military base in Guantanamo Bay, Cuba, Kauffman knows firsthand what it’s like to try to provide legal representation for someone who has been stripped of that basic constitutional right.
"We get used to our court system and take it for granted that there are rules we abide by," says Kauffman, who is of counsel with Garvey Schubert Barer. "The federal judges who are handling these cases seem powerless to do anything, and that’s unusual. Usually they say, ‘This is what’s going to happen’ and it happens."
Along with Kauffman, the Portland attorneys representing Guantanamo detainees include: Kauffman’s colleague, Bob Weaver; Jan Kitchel with Schwabe, Williamson & Wyatt; Tom Johnson with Perkins Coie; and a team from the Oregon Federal Defender office, including its head, Steven Wax, and attorney and investigator William Teesdale.
The private practice attorneys in that group volunteered to represent the detainees after receiving word of their plight through the Center for Constitutional Rights, a New York-based legal advocacy group, and the American College of Trial Lawyers. Each has undertaken the effort at considerable personal and professional expense.
Weaver estimates he and Kauffman have spent about 1,000 hours — worth an estimated $350,000 in legal fees — and $100,000 in travel and other costs, since they began representing a pair of detainees in fall 2004. However, neither they nor the partners at Garvey Schubert Barer thought twice about it, Weaver says.
"They were instantly universally in support of it," he says. "The legal fiction this administration has created to hold those men without due process should offend every lawyer in America, and it does offend every lawyer in this office."
Johnson traveled to Guantanamo four times to meet with his client, Ihlkham Battayav, and to Kazakhstan to investigate facts that supported Battayav’s innocence. Johnson says he volunteered about 450 hours on the case last year, and spent at least $10,000 each time he traveled to Guantanamo.
Johnson’s managing partners also lent their full support, even when Cully Stimson, now a former Deputy Assistant Secretary of Defense for Detainee Affairs, attacked firms like Perkins Coie for representing the detainees. In an interview with a Washington, D.C., radio station earlier this year, Stimson said: "When corporate CEOs see that those firms are representing the very terrorists who hit their bottom line back in 2001, those CEOs are going to make those law firms choose between representing terrorists and representing reputable firms."
Perkins Coie, whose client list includes The Boeing Co., experienced no corporate backlash, Johnson says.
"Our position in these cases … is that we want these guys to get a fair hearing. It’s been six years and most of these guys have never had anything like that," he says. "It’s great that it’s gone from 900 detainees to 400, but these 400 guys still have families and, like Ihlkham, they just want to go home."
The Wrong Place at the Wrong Time
Shortly after the U.S. began bombing Afghanistan in response to the Sept. 11, 2001, terrorist attacks, a massive roundup of suspected al-Qaeda and Taliban members began. The number peaked at about 900 initially imprisoned at Guantanamo. Today, fewer than 400 remain in custody.
During the last five years, Congress passed two laws designed to strip detainees’ right to file habeas corpus petitions contesting their imprisonment. The U.S. Supreme Court ruled both times that such measures were unconstitutional. Then on Feb. 20, 2007, a three-judge panel of the U.S. Court of Appeals for the District of Columbia upheld the Military Commissions Act’s denial of habeas corpus rights for the detainees, a ruling that sends the issue back to the U.S. Supreme Court.
For the Portland attorneys, frustration mounts as their clients languish in prison with no apparent legal recourse. Though physical conditions have improved somewhat, the psychological impact of endless detention is taking its toll. Many detainees were captured not because of any compelling evidence against them, but because of the $5,000 reward the U.S. military offered for each suspected Taliban and al-Qaeda member, the attorneys say
Johnson’s client, Ihlkham Battayav, was a businessman who frequently traveled from his home in Kazakhstan to Tajikistan. He was kidnapped in Tajikistan on Jan. 1, 2001, and sent to Afghanistan to fight for the Taliban. Battayav refused to fight but was held as a cook in a Taliban safehouse. He escaped with several others when the U.S. military began bombing Afghanistan, but he was captured by a warlord from Uzbekistan who turned him in for the $5,000 reward. The U.S. government labeled him an enemy combatant because of his "association" with the Taliban, Johnson says.
Teesdale’s client, Adel Hamad, was captured in 2003. He triggered suspicion because he worked for a pair of charities as a teacher and as a hospital administrator in Afghanistan. The U.S. military alleges that through these charities, Hamad associated with al-Qaeda members.
"I believe Mr. Adel Hamad is a completely innocent man, and that creates a sense of frustration and injustice that he can’t be released immediately," Teesdale says.
Outside the Comfort Zone
Few of the private practice attorneys representing Guantanamo detainees had any previous relevant experience they could call upon when it came to habeas corpus matters or international criminal cases. Kitchel, a personal injury lawyer who has specialized in civil litigation for nearly 29 years, calls his efforts to represent Younous Chekkouri a journey into "uncharted waters."
"I’ve never handled a habeas corpus case and I’ve never handled a criminal case before, so this is all new to me," he says. "With most of my cases I knew how to do them and I don’t really have to look up the laws anymore. On this case, it’s all new."Only Wax’s office, which was assigned to represent seven detainees, had handled something similar when it represented several "indefinite detainees" who were ordered to be deported by the Immigration and Naturalization Service during the late 1990s.A lack of previous experience hardly mattered, however, because the situation at Guantanamo is unparalleled in American history. There are no previous cases to refer to and no legal protocols in place to serve as a framework. Each of the attorneys can cite innumerable differences in the way they normally handle a case and the unusual measures they’ve had to take to represent detainees at Guantanamo."The client is not charged with any crime, so there’s no process in place. Part of what we’re trying to do is create a process," Kauffman says.
The first step was to obtain security clearance from the U.S. government, a process that took months. They also had to acquire interpreters to help, which added to the delay. "Initially there were very few interpreters that the military and the justice department — and you’ve got to go through both — would provide clearance for, so they were very much in demand," Weaver says.
During the wait, the attorneys prepared for their cases in the few ways possible. Those in Wax’s office received a crash course in Middle Eastern religion and culture as well as torture and the rules of war. They attempted to discover more about the seven men they were going to represent, but made little headway.
"We tried to learn anything we could based on what was said in the pro se petitions, but it was extremely difficult because there wasn’t much information in them," Teesdale says. "How can you prepare for a meeting with someone when you don’t even know what the allegations are against them?"
In one case, Wax adds, the U.S. government wouldn’t even say where one detainee was from. "When we got into the cases we had no idea whether we were representing the worst of the worst captured on the battlefield or innocent men or something in between," he says.
Wax’s team was denied access to the seven detainees’ tribunal records, which are held in a secure location in Washington, D.C. They achieved a small victory when the Associated Press won a Freedom of Information Act judgment against the Department of Defense that resulted in the release of electronic records about the detainees. Teesdale stayed up all night reading through them, then e-mailed the information that was relevant to their cases to Wax as he and a couple of other team members caught a connecting flight from Fort Lauderdale to Guantanamo for their first visit.
Weaver and Kauffman encountered a similar dearth of information regarding their clients, who have been held since 2002. Though they normally would have had discovery boxes full of information, they received few details on their clients and why they were being held. Much of the information was classified and held in a secure location in Washington, D.C. "You can look at it but you can’t take any of it with you or take any notes. The files are very thin anyway," Weaver says.
Along with the limited background information and research available, it was next to impossible to even outline a legal strategy for his client because there is no guaranteed process, Weaver says.
"What I have seen is that, notwithstanding the system of laws we have, a powerful sovereign can easily delay the administration of justice for a number of years. I liken it to the Civil Rights struggle," Weaver says. "I believe we will eventually prevail, but I can’t tell you how or when."
The real challenges lay ahead as the attorneys prepared to finally meet their clients.
The connecting flights from Fort Lauderdale to Guantanamo Bay take place aboard a pair of aging prop planes. Upon landing, visitors see a locale as picturesque and serene as any Caribbean tourist destination. This side of Guantanamo Bay even features a Pizza Hut and a Starbucks.
"I sum up my reaction to my first visit as surreal," Wax says. "You’re in this tropical paradise where you’re looking at the Caribbean, and there are inmates who are a couple hundred yards away from it and can’t see it."
The attorneys are housed in a more desolate area and must have a military escort at all times. A boat transports them to the prison, where the conditions for their clients vary in degrees of harshness. Early on, detainees were held in an area called Camp X-Ray that basically consisted of outdoor cages unprotected from the summer’s burning sun and winter’s cold temperatures.
"My client will talk to me about anything," Johnson says. "He’ll talk to me about his kids, the kind of work he does and all sorts of other things, but he won’t talk to me about his physical treatment during the first five months he was held."
Detainees are moved from one holding area to another — each with different levels of security and amenities — seemingly without reason, he adds. Though many men have been designated non-enemy combatants, they often are held in isolation. Halliburton continues to build more detainment facilities there, Johnson says.
Weaver, a federal prosecutor for 15 years and a defense lawyer for another 15 years, has seen his share of prisons. However, Guantanamo — from its enormous military presence to the deprivation its inmates undergo — is unlike any he’s ever encountered.
"This is uniquely designed to frighten and intimidate the prisoners," he says. "One of the things that’s prevalent there is a suspicion of the motives of the lawyers who are there to help these people."
Access to clients is limited. There is no phone contact, and written contact is nearly impossible. "We can’t see them except at great expense and time, so we see them only occasionally," Kauffman says.
Kauffman and Weaver made their first trip to Guantanamo in July 2005. Since then, Weaver has been twice and Kauffman has been four times.
"Another obstacle we have is the lack of trust from the clients because they’ve been through so much and have been treated so poorly by Americans that we have to convince the clients we are there to help and they can trust us to represent their interests," Kauffman says.
Weaver says it’s challenging to explain the power of the U.S. court system to men who have lived under a dictatorship all their lives. It’s even more difficult to make that point when the U.S. court system appears virtually paralyzed in its handling of the habeas corpus cases. For example, Weaver tried to describe to his client why the Hamdan case [Hamdan v. Rumsfeld] was a victory for the detainees. "We could explain these esoteric principles on why this is a good thing, but it makes no difference to them because nothing is happening," Weaver says.
Fighting for Hope
Wax, who has visited Guantanamo three times, likens the U.S. government’s detainment policies to The Trial by Franz Kafka. He feels a mixture of emotions when asked about how the experience has impacted him.
"On the one hand, I’m proud of my country because
it permits me as a federal employee to fight this fight," he says. "On
the other hand, I’m deeply disturbed by my country because of what
it’s doing to the human beings it has locked up now for more than five
years and the continual distortion of the truth it puts out.
I’m disturbed by the legal positions put out by my government that run contrary to 800 years of Anglo-American legal and political thought."
Johnson says the issue is as basic as questions of evidence and the burden of proof. "In the U.S., in order to convict someone you have to present guilt beyond a reasonable doubt. But at Guantanamo there is detainment until the cessation of hostilities, which amounts to a life sentence for a lot of these people because as Tom Ridge (former secretary of homeland security) recently pointed out, this war could go on for generations," he says. "One of the awakenings for me is how futile it is in many respects to bring these kinds of cases to federal court under the present paradigm, because we’re really not getting anywhere in terms of habeas corpus."
Kitchel, who has been to Guantanamo twice in the last two years, says his client is among the many growing more fragile psychologically as their futures remain uncertain. "For a long time my guy was locked up with several other guys, so he had people he could talk to and they were outside for several hours a day. Now, for some reason, he’s in a high security area and he’s in solitary confinement for 22 hours a day. I foresee that the next time I see him, he will be insane," Kitchel says.
"I truly believe under the next administration, Guantanamo will be shut down," he adds. "Those who they can’t prove a case against will be let go, and those few who do have some kind of knowledge or evidence will be tried in a criminal court. I don’t think it will come fast enough to preserve their sanity, though."
Teesdale agrees one of the most frustrating aspects of his work at Guantanamo is not being able to tell his client what lies ahead. "You’re meeting with people who have been held for four years or more. It’s very difficult to meet with people in those circumstances and not be able to tell them, ‘You are going to have a hearing and have access to the process we would normally have,’" he says.
Weaver is astounded by the despair he sees at Guantanamo. "The level of hopelessness is mind-boggling and is worse than anything you see on death row in a prison in the U.S.," he says. "Given the history of the Guantanamo detentions and the obstacles placed in the way of those seeking legal redress, it is impossible to be optimistic. Still, we try to give our clients hope because that is what they minimally need to survive."
Kauffman says he has gained a new appreciation for America’s constitutional protections, but finds it hard not to feel a personal responsibility on some level. "What you could never believe could happen as a law student, they have done. They have locked these men up without due process and thrown away the key," he says. "When I go down and visit these men, I feel like I have to apologize to them because it’s my country that’s done this to them, and it’s shameful. I’m profoundly frustrated that there’s not more I can do. And, it’s frustrating for me that it’s taken so long for there to be public outrage about this."
Back to the Supreme Court
The recent appeals court decision brought a range of reactions from the Portland attorneys, from discouragement at the latest victory for the Bush administration to relief that the issue can now move to the Supreme Court.
"I am very disappointed," Kitchel says. "It will go up to the Supreme Court fairly quickly, but with the current makeup of the court a positive outcome for us is iffy. They ruled in our favor twice before, but that was without Chief Justice Roberts and without a positive Congressional statement to suspend the writ. Of course, I believe such a suspension is unconstitutional.
"I think any positive relief will have to come from a change in the administration, or from recent efforts in Congress to repeal the MCA [Military Commissions Act]. Senator [Chris] Dodd [D-Conn.] has sponsored a bill to do so, and with the change in Congressional demographics, it may pass," Kitchel adds.
Kauffman says he, too, was disappointed, not only that the ruling ignored the Supreme Court’s previous decisions, but that it took so long for the appeals court to render its decision. "Our clients are innocent and because of the D.C. Circuit Court they are now facing indefinite detention without being charged with any crime," he says.
Weaver says he was glad to see the ruling finally come down so the cases could progress to the Supreme Court. "The Supreme Court has reversed the appeals court a couple of times before on these cases, and we’re hopeful they will do it again," he says.
Wax also looks forward to future progress on the matter. "The fight is not over," he says. "I am hopeful that Congress will repeal the habeas jurisdiction-stripping legislation or the Supreme Court will reverse the circuit decision and restate the importance of habeas corpus as a restraint on executive power."
In the end, it may be public outrage that finally helps bring some resolution to the issue. As the U.S. government continues to stonewall the legal system’s support of habeas corpus rights for Guantanamo detainees, many attorneys are bringing new tools into the battle.
Johnson, whose client finally was released late last year, circulated a letter requesting Congress restore habeas rights to the prisoners. The letter was signed by more than 500 Oregon attorneys. Increased pressure from the public and the media will help get results, he says, noting that 60 detainees were released in the three months following the 2006 election. That was the biggest number since 2001, he points out.
Teesdale’s strategy involves simply showing his client’s humanity. The U.S. government has attempted to dehumanize the detainees by dressing them in jumpsuits, referring to them by numbers rather than their names and classifying them as the "worst of the worst captured on the battlefield," he says.
"That kind of rhetoric and the effort to dehumanize them
ignore the real truth that these are human beings who deserve to have a hearing
in a court of law," says Teesdale. "My client is an innocent man,
and I’ve risked my personal safety to go to Afghanistan and Pakistan
to gather evidence that proves he’s innocent. It’s horrifying
to me that the courts won’t even
Teesdale has turned to the Internet, where his evidence has gained plenty of notice. He created an eight-minute documentary about Hamad and posted it on YouTube. The video features footage of witnesses who corroborate Hamad’s assertions of his innocence. (See it at http://tinyurl.com/37cpcd.)
"The courts are closed to us right now and I hope they will open back up, but the way I see ahead right now is to increase public awareness about the issue. The YouTube piece is the best way to do that as I see it," he says.
In addition, several concerned citizens established a Project Hamad website, www.projecthamad.org, which draws hits from around the world. "I think that’s very exciting because it shows that we as individuals can make a difference even if the system isn’t working the way it should. It gives me hope that we can do something," Teesdale says.
ABOUT THE AUTHOR
Melody Finnemore is a Portland-area freelance writer and a frequent contributor to the Bulletin.
© 2007 Melody Finnemore