War on the Habeas Lawyers

By Scott Horton

In a few weeks I will be taking a very close look at how the Bush Administration has dealt with the band of lawyers who have been serving as defense counsel for the detainees at Guantánamo. These lawyers by and large get no compensation for their work; they are motivated by a desire to see justice done and to force the machinery of our legal system to work in what the Bush Administration is trying feverishly to preserve as a law-free zone. History has known quite a few law-free zones, and the pattern associated with them is not pretty—it usually devolves quickly into sadistic exploitation—all the sort of things that Prof. Zimbardo demonstrated with his famous Stanford Prison Experiment.

The last chapter in this struggle has been the Gonzales Justice Department’s effort to nullify the Supreme Court’s ruling in Rasul, which guaranteed the detainees access to habeas corpus counsel to pursue legal remedies on their behalf. In the mind of Gonzales’s Justice Department, no court ruling in favor of the Gitmo detainees ever stands for anything—moreover, there will be rapid reprisals against the lawyers and detainees whose efforts produced the embarrassing exposure in U.S. courts.

Witness the latest effort to straight-jacket the habeas lawyers by imposing harsh limitations on visits to their clients. The strategy pursued by Gonzales is to block any meaningful interaction between the lawyers and their clients, and this is one small piece of the total.

In the last two weeks there has been a uniform pushback against this by the usual radical left groups such as the American Bar Association (most of whose members are, of course, Republicans) and local bar associations, joined by newspaper editorial boards across the country.

This leads to a predictable reaction. Whereas the restrictions once were necessitated by compelling national security concerns which cannot be discussed, suddenly in the face of strong public opposition we discover that those national security concerns have evaporated. Today’s Miami Herald discusses a statement by Rear Admiral Harris, commander of the Guantánamo prisons, who has suddenly decided that the need to impose a three-visit per prisoner limit is no longer there.

First, we learn that the “worst of the worst” Al Qaeda fighters captured by our soldiers on the battlefield weren’t captured by our soldiers, aren’t Al Qaeda, and aren’t the “worst of the worst.” Then we learn that we can’t be trusted to read their testimony because it contains highly-sensitive and compartmentalized national security information—namely, exactly how they were tortured. Then one of the “worst of the worst,” out there on the battlefield and aiming to shoot Americans, turns out never really to have been any threat at all and is prepared to be sent home to his family with the shortest sentence the law allows—what may effectively be a few weeks. And now those restrictions on lawyers speaking to their clients and learning what has happened to them really aren’t so compelling either, if the bar is getting worked up about it and local newspapers object.

What we’re seeing is an X-ray shot through the Administration’s hyperventilating rhetoric, and it’s about time. But the risk is that the Administration has so thoroughly demolished its own credibility with its absurd rhetoric that when it justifiably sounds the alarm bell, no one will believe it. This points to the compelling need for new faces who can be trusted, especially in the Justice Department, but generally throughout the Government.