No Comment — May 26, 2010, 10:23 am

Silencing the Lawyers

A total of 779 prisoners have been held in Guantánamo in connection with the war on terror. Five hundred seventy-nine were released, most by the Bush Administration, a quiet recognition of errors made in the decisions to detain them. A large number of those still detained are contesting their imprisonment through habeas corpus—under which the government must make a minimal showing that it has a reasonable basis for holding the prisoner. In roughly three-quarters of these cases so far (36 out of 50 decided), which are being heard before largely Republican-appointed, conservative federal judges in Washington, the court has found that the United States has no reason to hold the prisoner. That’s not surprising. In fact, we now know that 80 percent or more of the Guantánamo prisoners were captured not by American forces on or near a battlefield but rather by Afghan warlords and Pakistani security forces eager to collect reward money the United States was offering. So Ahmed the taxi driver and Mohammed the shepherd were whisked off to Gitmo.

What happened to the 600–800 Al Qaeda and Taliban leaders for whom the prison was originally conceived? We now have a pretty good idea. In the late fall of 2001, military operations in Afghanistan were successful, and Taliban and Al Qaeda leadership figures had fled to two last redoubts—the city of Kunduz in the northeast, and the Tora Bora region along the Pakistani frontier. But for reasons known only to him, Vice President Dick Cheney ordered a halt to the bombardment of Kunduz and opened an air corridor to allow the Pakistani military to airlift the Al Qaeda and Taliban leaders out of Kunduz. The maneuver was ridiculed by one U.S. military official present at the time as “Operation Evil Airlift.” The United States quickly moved to fill Gitmo with nobodies. With that fact now becoming painfully apparent, you’d think that Congress would be calling for an investigation into how original plans for Gitmo were botched—specifically how the Al Qaeda and Taliban figures for whom it was built evaded capture in the face of one of the most powerful military forces ever fielded in Afghanistan. That could well be one of the most significant “lessons learned” of the war.

Instead, influential Republicans in Congress are crying out for an investigation of the lawyers. Florida Republican Jeff Miller has secured a provision in the current defense appropriations act (PDF) requiring that the Defense Department’s inspector general “conduct an investigation of the conduct and practices of lawyers” who represent clients at Guantánamo if there is some reason to believe that they “interfered with the operations” at Gitmo or “violated any applicable policy of the Department.” Of course, as Steven Vladeck has explained, in the thinking of the Bush era, prisoners were to be held at Gitmo without access to attorneys or the ability to make legal arguments, so everything that the defense counsel did amounted to “interference with the operations”–starting with securing a series of Supreme Court decisions holding that those operations were illegal.

Miller explained the need for this provision in a blog post for the Heritage Foundation. As he makes clear, his purpose is entirely retaliatory:

Last year the American Civil Liberties Union (ACLU) and the National Association of Criminal Defense Lawyers (NACDL) established the John Adams Project to “support military counsel at Guantanamo Bay.” The mission behind this treacherous enterprise was to identify intelligence officers involved in interrogating Guantanamo Bay detainees and then provide that information to military defense attorneys representing the detainees so that they could attempt to call intelligence personnel to testify. Unfortunately, it appears that their efforts may have been successful, when last year photographs of intelligence personnel were found in the cells of detainees. News reports indicate that American citizens hired private investigators to surreptitiously photograph intelligence personnel and provide them to enemies of this nation. If true, the disgraceful actions by the individuals involved in the John Adams Project have created a severe security risk for our intelligence community and, ultimately, the American people. Any attempt to identify and expose to potential harm our Nation’s fine intelligence and military officers who serve as our first line of defense is deceitful, shameful, and illegal.

Let’s decode Miller’s histrionics here. It’s about torture. One of the key issues in many of the habeas cases, as well as in the forthcoming military commissions proceedings, is whether statements elicited from prisoners should be excluded because they were secured through the use of coercion—in the most serious cases, through the use of torture. In fact, the prior convening authority, Dick Cheney protégée Susan J. Crawford, concluded that at least one such statement was secured by torture, judges in several of the habeas cases have concluded that impermissible coercion was used, and in one of the military commission proceedings—involving child soldier Omar Khadr—one of his own interrogators testified, against his own interests and considerable government pressure, that he believes that Khadr was tortured. In order to make their case, the defense counsel need to establish if there were written or audiovisual records made of the interrogation sessions. They also have to identify all the potential witnesses and attempt to find out what the witnesses said or didn’t say. They are having a difficult time in this process because the government is not cooperating with them. Moreover, clear evidence–like the videotapes of interrogation sessions–keeps mysteriously disappearing.

Of course, the government can control whether the supposed statements are an issue. It can decide not to rely on them. It also has the power to insist that certain kinds of evidence are classified and can only he heard by the court under restricted circumstances. But the government does not have the right to use the statements against the prisoners and then block any inquiry into how they were secured and who was involved in the process, because that would turn the proceedings into a travesty. Secret evidence of that very sort was regularly used in the Tudor- and Stuart-era Court of Star Chamber, and the Founding Fathers appropriately forbade it—largely because the evidence was usually dishonest and unreliable. The prohibition on secret evidence was made absolute in the seventeenth century. It is “a fundamental common law principle,” as the Court of Appeal ruled just a few weeks ago in rejecting an effort to deny defendants access to evidence of torture in the hands of government interrogators.

The defense counsel working at Guantánamo have been subjected to a barrage of officially sponsored indignities. They have been tarred with ethnic slurs and accusations of homosexuality, accused of undermining national security, subjected to continual petty harassment. They have also had their livelihoods threatened through appeals to their paying clients. These events have been reported as separate incidents in the press, but this conduct results from a carefully orchestrated Bush Administration policy that goes under the rubric of “lawfare.” With the Bush Administration out of power, these efforts have been taken up by former Vice President Dick Cheney, his daughter, and a collection of Republican hacks. There’s nothing remotely “disgraceful” about the efforts of defense counsel to identify witnesses and collect evidence, and to prove torture if indeed torture was used. That’s the essence of justice. Congressman Miller is afraid that the truth of what happened to these prisoners will be fully exposed and that they may be proven innocent. He therefore instinctively wants to silence the lawyers who are putting the lie to his claims. But overcoming the legacy of Guantánamo has to start with learning the truth about what happened there. That may indeed be a painful experience for Miller and his colleagues, but their efforts to interfere with justice will only make the process longer and more painful.

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