Bush Administration Continues Its Attack on Gitmo Lawyers

Cross-Posted to Raising Kaine

Here's an article from the New York Times describing the latest in the government's efforts to curtail and obstruct Guantanamo detainees' attorneys in their pursuit of fair hearings on the evidence for their clients. Court Asked to Limit Lawyers at Guantanamo

The government has proposed some teeny-tiny adjustments to the way Gitmo detainees are represented, to wit:

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 attorneys have been accused of "causing unrest" at Guantanamo. Well we all know how happy the detainees were to be there until all the pesky lawyers showed up. The government's hatchet man, Cmdr. Patrick McCarthy, says defense lawyers have

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.”

Give the government the right to review all communications between lawyers and their clients? How could that possibly be seen as impeding the relationship between attorneys and clients? The government guys will keep their secrets and won't use the information gleaned to seize unfair advantage in their cases. Honest!

And one visit to initiate representation? Sounds reasonable. After all, the detainees have been locked up for years by generally white, non-Muslim Americans who don't speak their languages, and the lawyers are generally white, non-Muslim Americans who don't speak their languages, either, so no reason for the detainees to be suspicious of any lawyer who shows up - sometimes sporting a Jewish name - and says "let me help you. And by the way, if you do allow me to help you this is the only time we're going to talk about your case so I need to know everything. And by the way, everything you tell me through correspondence or meetings will also be told to the government's lawyers. But I'm really on your side. Seriously. Trust me. So come on, start talking."

Of course the attorneys deny that they have done the things of which they're accused. No proof offered, just the usual speculation and hinting at dark things to come. These people are wasted in the law. They should all be in Hollywood writing scary screenplays for a revival of the Goosebumps series.

I have an idea. Let's distribute the detainees around our federal prison system and CLOSE Guantanamo. Let's let their attorneys see them the way they see their non-detainee clients.

This issue is yet another "sky is falling" assertion by elements of the Bush Administration bound and determined to continue stacking the deck against the Guantanamo detainees. Here's another suggestion. Why not drop all the bulltwaddle, gather the evidence and put it out there, and hold some damn hearings with real rules of procedure and rules of evidence? Or is that just too scary a prospect for the likes of Alberto ("I know nothing, I see nothing, I hear nothing") Gonzales and this Administration?

Jim Webb on the Incarceration Crisis

Cross-posted at Raising Kaine

This comes a little late, but a week ago Senator Jim Webb was on the ABC show This Week with George Stephanopolous and said something which took me by delighted surprise.

We've -- this is a chance to put a lot of issues on the table. One of the issues which never comes up in campaigns but it's an issue that's tearing this country apart is this whole notion of our criminal justice system, how many people are in our criminal justice system more -- I think we have two million people incarcerated in this country right now and that's an issue that's going to take two or three years to try to get to the bottom of and that's where I want to put my energy.

Yesterday I had the chance to thank Senator Webb in person for bringing up this virtually invisible issue at Brian Moran's pancake breakfast and told him how grateful I am as a criminal defense attorney to see a United States Senator calling attention to this enormous crisis. He immediately (and impressively) off the top of his head started reciting the facts and figures of incarceration and expressed dismay that an entire segment of our sociey, the young black male, is growing up incarcerated or under court supervision. He said "it's terrible that you can make a mistake when you're 18 years old and have it follow you around for the rest of your life. We have to change that." He added that this issue is as important as the war and economic fairness. For information on some of those facts and figures see this New York Times article Plight Deepens for Black Men, Studies Warn

Senator Webb mentioned an article he wrote for Parade Magazine in 1984 on the Japanese prison system. What We Can Learn From Japanese Prisons. While I would never endorse the Japanese practice of interrogating prisoners and having them sign confessions without a lawyer present, we could learn something from the Japanese sense of fairness and honesty in dealing with prisoners. An American former prisoner told Webb

he prefers Japan's legal system to ours. Why? "Because it's fair," he says. "They never tried to trick me, even in interrogation. They were always trustworthy. I could have got five years and they gave me two. The Americans who were helping them wanted me to get 20. The guards at Fuchu were hard, but they never messed with you unless there was a reason. You didn't have to worry about the other prisoners coming after you, either. And the laws of Japan are for everybody. That's the main thing. The laws in this country depend on how much you can pay. I'd rather live under a hard system that's fair."

Having represented dozens of people suckered by detectives and private security personnel into confessing, usually on the promise of release or of lenient treatment, I say a change would do the entire system good. The bitter fact is that the police lie. They lie all the time. Their lying is trained into them at the academy and accepted by the courts with nary an eyelash batted. They lie about the evidence; they lie about the statements of suspected co-defendants; they lie about the legal effect of a conviction; they lie about their power to affect the outcome of the case once it has gone to the prosecutor. Having been forbidden to use force on criminal suspects they resort instead to interrogation techniques designed to elicit confessions, but not necessarily the truth, and they have little understanding of just how their techniques can in fact result in injustice. It is the poor and uneducated who are most susceptible to these techniques, which can account at least in part for the feeling among many of my young, poor, uneducated, and minority clients that their involvement with the system is an inevitability, perhaps even a rite of passage. Moreover, there is a sense among them that the only difference between their dishonest approach to life and the government's is that the government has power and that is why cops can lie to get what they want while the suspect is punished.

On top of this is the acceptance within our society of brutality and rape of prisoners within our prison system. People talk of such things with a smile and a wink instead of as the appalling thing it is.

Added to this are the extraordinary rates of incarceration, often for decades, for crimes which often involve only dishonesty or non-violent drug offenses. I asked Senator Webb to look into the skewed results produced by mandatory minimum sentencing in which all the power rests with the prosecutor - who chooses what charges to bring against defendants in order to bring about particular dispositions - and reduces the judges to mere clerks imposing sentences based on worksheet calculations.

I asked the Senator to consider the problems of the mentally ill. Few services are available for the mentally ill and they are often incarcerated for crimes committed while in the grip of their delusions or their compulsions. Many of them have fallen through the cracks and are off their medications when they commit their crimes. Don't get me started on how much of this is related to unavailability of mental health treatment services even in so-called "good" health benefit plans. We are warehousing the mentally ill in our jails and prisons.

Last, in a zero-tolerance state like Virginia, where possession of any drug but marijuana is a felony, I have seen long time resident aliens and undocumented aliens either deported for their drug felonies (one ecstasy pill is all it takes for a felony conviction) or denied the ability to apply for citizenship because of their status as felons. Senator Webb replied that he hopes some day soon to hold hearings on this issue and I wished him success.

Looking back, I realize I piled a lot on his plate in a two minute conversation, but at least he's willing to pay attention to this crisis. Once again, thank goodness that Jim Webb won that election instead of George Allen.

Why Habeas Corpus, the Hamad Project, and the Duke Lacrosse Case Are All Related

In response to my post about Mr. Stimson I received an invitation to view this website: Project Hamad

The invitation came right on the heels of my having seen most of the 60 Minutes report on appalling and flagrant prosecutorial misconduct in the Duke lacrosse case.

As the Stimson incident demonstrates there is among our leadership a disregard for the rule of law and the principles of fairness shocking to all Americans who regard them as the bedrock of our society. It is not ethnicity or religion which makes us Americans, but our abiding belief in the principle that all are created equal and the laws should apply equally to all. It is our inherent suspicion of power which gave us our system of checks and balances, and our belief that all accused persons should have the right to confront their accusers and examine the evidence and test the witnesses which makes our system great.

The Duke lacrosse case shows that in the face of abiding prosecutorial ambition, incompetence, and outright dishonesty even the rich and privileged in this country may find themselves branded as criminals and prosecuted, despite proof of innocence. Does anyone seriously think this was an isolated instance? What would cause an experienced prosecutor to so casually hide exculpatory evidence and manipulate the findings in the case? A pervasive culture of corner-cutting and lax ethical standards, that's what. He did it because where the defendant is not a rich white kid with dedicated and determined parents and aggressive and competent legal representation he gets away with it. The Duke case demonstrates why we have to have standards of evidence and discovery in criminal cases. What would have happened to these boys if their lawyers had not been able to scrutinize the evidence, the reports, and hire their own expert?

Then there is Adel Hamad. He is described as a father of four from Sudan who was working at a hosptial run by an NGO called World Assembly of Muslim Youth (WAMY) in Pakistan, distributing food and clothes, etc. WAMY is alleged to possibly support "terrorist ideals". Mr. Hamad was arrested in his bed in the middle of the night and sent to Gitmo, where after several years of incarceration without charge he was given an administrative review hearing, at which he denied that WAMY is a terrorist organization and asked why he, an employee, would be arrested rather than the CEO or administrators. The review panel voted to keep him, but with a lone dissenter:

The U.S. Army Major, who dissented in his case, concurred: "Even if elements of certain NGOs provide support to terrorist ideals and causes that is insufficient to declare an employee of said NGO an enemy combatant; to do so would lead to unconscionable results: one would have to declare all physicians, nurses and aid workers of any suspect NGO as enemy combatants; the ramifications of such logic would lead to unforeseen and unconscionable results."

Article 20 of the 4th Geneva Convention states: Persons regularly and solely engaged in the operation and administration of civilian hospitals, including the personnel engaged in the search for, removal, and transporting of and caring for wounded and sick civilians, the infirm and maternity cases, shall be respected and protected.

The report goes on to state:

The dissenting [said] "The fallacy of logic that seeks to classify Hamad as an enemy combatant because he many have come in contact with al Qaida member in the course of providing aid to refugees, or teaching at a school, would also provide support that a local merchant who 'came in contact' with al Qaida members could be detained as an enemy combatant."

... Interviews with Dr. Sailani, and Dr Roghman (both WAMY hospital physicians) and Dr Najib (the hospital director and general surgeon) reveal that Hamad never spoke about politics, that there was no anti-American activity at the hospital and that Hamad did not have contacts outside the hospital grounds.

So far, no other evidence aside from a possible tenuous guilt by association has been leveled against Mr. Hamad. There is no evidence that he's ever picked up a weapon, been on a battlefield, or even expressed approval of terrorist activity. However, Mr. Hamad does not have the right to bring a petition for a writ of Habeas Corpus because the Administration, with the connivance of Congress members who appear to fear this ancient curb on arbitrary and capricious detention as much as they fear terrorists, gutted this essential writ and made it unavailable to him.

Do we really want guys like Stimson making the decisions about who should be incarcerated indefinitely? Are we that afraid of our own system of justice that we cannot use it to sort out the good from the bad? Can we not even extend some form of protection against fear-based and fear-mongering prosecutorial excess against the defenseless, whether they be good or bad? If Mr. Hamad is a terrorist then show me, and I'd be happy to lock the door on him permanently, but give the man the right to know what evidence exists against him. It's basic fairness.

Cross posted to Raising Kaine

Charles Stimson is Un-American and a Disgrace to the Legal Profession

Excuse the emotion running through the heading of this post. Today I learned that Charles Stimson, deputy assistant secretary of defense for detainee affairs and a lawyer educated at a pretty good law school, George Mason University, apparently believes the pro bono attorneys representing detainees at Gitmo and elsewhere, should be punished for their loyalty to the highest principle of their profession, the defense of the accused.

Mr. Stimson apparently slept through his Ethics, Criminal Procedure, and Constitutional Law classes and probably thought the defendant deserved what he got in "To Kill a Mockingbird".

The story's here:
http://www.nytimes.com/2007/01/13/washington/13gitmo.html?em&ex=1168837200&en=7891524ddd2fcf3b&ei=5087%0A

Mr. Stimson made his remarks in an interview on Thursday with Federal News Radio, a local Washington-based station that is aimed at an audience of government employees.

The same point appeared Friday on the editorial page of The Wall Street Journal, where Robert L. Pollock, a member of the newspaper’s editorial board, cited the list of law firms and quoted an unnamed “senior U.S. official” as saying, “Corporate C.E.O.’s seeing this should ask firms to choose between lucrative retainers and representing terrorists.”

In his radio interview, Mr. Stimson said: “I think the news story that you’re really going to start seeing in the next couple of weeks is this: As a result of a FOIA request through a major news organization, somebody asked, ‘Who are the lawyers around this country representing detainees down there?’ and you know what, it’s shocking.” The F.O.I.A. reference was to a Freedom of Information Act request submitted by Monica Crowley, a conservative syndicated talk show host, asking for the names of all the lawyers and law firms representing Guantánamo detainees in federal court cases.

Mr. Stimson, who is himself a lawyer, then went on to name more than a dozen of the firms ... describing them as “the major law firms in this country.” He said, “I think, quite honestly, when corporate C.E.O.’s see that those firms are representing the very terrorists who hit their bottom line back in 2001, those C.E.O.’s are going to make those law firms choose between representing terrorists or representing reputable firms, and I think that is going to have major play in the next few weeks. And we want to watch that play out.”

Karen J. Mathis, a Denver lawyer who is president of the American Bar Association, said: “Lawyers represent people in criminal cases to fulfill a core American value: the treatment of all people equally before the law. To impugn those who are doing this critical work — and doing it on a volunteer basis — is deeply offensive to members of the legal profession, and we hope to all Americans.”

Gosh, I wonder who the "unnamed Senior U.S. official" was? Reading and re-reading his words, it seems clear to me that he is trying to intimidate and drive away the only attorneys who can handle the demands of representing people being held on an island away from scrutiny and most court jurisdiction and who have the assets and resources to handle the enormous mound of paper obfuscation and litigation launched at them by cretinous, authoritarian public officials whose bottom line isn't the protection of our country and everything it stands for, but avoidance of a spotlight on their appalling treatment of detainees and the questionable circumstances under which so many of them are being held.

Mr. Stimson's attitude presents a first-rate argument for the necessity of open and aggressive representation of detainees. Due to this administration's disrespect for our Constitution, Bill of Rights, and requirement for fairness which first and foremost must exist for justice to be done, the deck is heavily stacked against the detainees whose attorneys must scale towering wall of government secrecy, avoidance, and deception just to get a hearing on the evidence. Time to end the secrecy and to fire people like Mr. Stimson, who holds the enormous power of the state and all its resources yet does not recognize that he is part of a system in which good legal representation of the accused is necessary to assure that the weight of his power does not crush the innocent.

Rights Denied, an American Detainee in Iraq

The Bush Administration's shameful abnegation of our most basic civil rights is illustrated by this story from the NY Times today: Former U.S. Detainee in Iraq Recalls Torment.

We must ask what "freedom loving" purpose is served by denying legal counsel to an unjustly detained U.S. citizen overseas. How is it that our President claims to champion our system of rights and freedom when the most basic protections are not afforded even to our citizens, let alone to other detainees who do not have the minimal protection offered by U.S. citizenship? Without the protections afforded by our Bill of Rights and the requirement that our government follow its provisions who is safe from governmental incompetence or overreaction? Donald Vance, the detainee in question, was a Navy veteran working as a contractor for a security firm in Iraq who tried to do his patriotic duty and alert our government to his firm's illegal dealings and diverting of arms and munitions. The shocking part is that he and Mr. Ertel, the other American detainee, had alerted the military authorities in Baghdad to their company's criminal activities after Mr. Vance collected substantial information about his company's misdeeds and communicated it to the FBI. Also shocking is the apparent incompetence or sheer apathy of the military authorities who held him in stressful and torturous conditions and apparently did not even check his computer as he requested for his communications with the FBI for weeks after his detention. There is a distinct quality to this of the right hand not knowing, or perhaps not caring, what the left hand was doing.

Given the way this situation was handled I have to ask: how were we as American citizens made safer by suspension of habeas corpus, of the application of the most basic civil rights, of the institution of torture light for detainees? I certainly do not feel any safer.

And let's consider yet another question. Without strict regulation of the circumstances of detention and interrogation of detainees, especially U.S. citizens, what protections do whistleblowers have against a corrupt military investigatory authority? I'm not saying the ones in this situation were corrupt, but really, what protection is there? Who's watching the ones doing the detaining?

Speaking of oversight, Alice Marshall of GOTV has posted the following to her site about the Truman Committee from the Next Hurrah blog: The Next Hurrah: (Harry) Truman Committee