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Blowback on Gitmo Lawyers

Gabe Rottman,
Legislative Counsel,
ACLU Washington Legislative Office
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April 27, 2007

Criticism of the DOJ petition to further restrict attorneys access to detainees held at Guantanamo Bay has been hot and heavy today. The New York Times editorial page offers this seething rebuke:

Perhaps the most outrageous of the Justice Department’s proposals would allow government officials — on their own authority — to deny lawyers access to the evidence used to decide whether an inmate is an illegal enemy combatant. Not even the appalling Military Commissions Act of 2006, rammed through in the last days of the Republican-controlled Congress, goes that far.The filing, with the federal appeals court in Washington, D.C., says lawyers have caused unrest among the prisoners and improperly relayed messages to the news media. The administration offered no evidence for these charges, probably because there is none. This is an assault on the integrity of the lawyers, reminiscent of a former Pentagon official’s suggestion that they are unpatriotic and that American corporations should boycott their firms.

The Rocky Mountain News in Denver takes a similar line:

The Justice Department also complained to the court that the lawyers serve as a conduit between the detainees and the press, generating bad publicity. In other words, when the public gets an independent version of what goes on, it gets outraged.The department seems to believe that when Congress approved the tribunals last year, it stripped the detainees of so many protections that they really don’t need lawyers. That’s flatly not the case.

The Associated Press also covered the Senate Armed Services hearing yesterday. Democrats, including Judiciary Chair and panel witness Patrick Leahy, senior senator from Vermont (and a Georgetown law grad, baby), pushed for a quick restoration of habeas rights for detainees. Republicans pushed back, but with a little bit of the…what’s the word…obfuscation.

Also speaking in opposition to quick changes, Sen. John Cornyn, R-Texas, said he was “not aware of any recorded English common law case that grants habeas corpus relief to an alien detained as an enemy combatant.”Yet, Cornyn said, “we have gone a step further and provided an opportunity for both administrative and judicial review in a court” to people “who do not observe the law of war.”

Ah, yes, but here’s the rub: the administration claims that the system in place is adequate to determine who is or is not an enemy combatant, subject to a determination of guilt by military commission, when in fact it can’t tell a kidnapped shepherd who happened to cross paths at the wrong time with a zealous Northern Alliance unit from a seasoned graduate of al-Qaeda U’s campus in the suburbs of Kabul.If the system making that determination is broken, and a habeas petition is precluded, these detainees have no ability, whatsoever, to challenge their detention in front of a neutral arbiter—the absolute nucleus and sine qua non of a limited, accountable government. This is the case even though they are being held under the absolute control and authority of the American government on what is, at least in the literal reality of “boots on the ground,” American soil.That’s a major difference between this and past wars, and the fatal flaw in the administration’s legal argument. Anybody wanna contest that? As the president says, bring it on.

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