Is there hope for the rule of law?

As we wrote about recently, the Supreme Court’s decision in Clapper vs Amnesty Int’l  has now made it nearly impossibly to review through civil lawsuits many of the government's most egregious tactics in the war on terror. While the decision in Clapper is new, it reflects a continuing saga of a war not on terror, but on the rule of law. Another part of that saga has involved our government's treatment of, and denial of due process to, those accused of terrorism.

Guantanamo captives in January 2002

The prison at Guantánamo Bay has been plagued both by the continued specter of mistreatment of prisoners and the major deficiencies in the legal process afforded prisoners, namely military commission proceedings. Only months after the prison’s November 13, 2001 creation, the government faced a habeas corpus legal challenge for failure to provide access to attorneys, or even charge detainees, in Rasul vs Bush.

Since then, legal justifications for torture have surfaced, public outrage has waxed and waned, and President Obama has failed to fulfill his campaign promise to close Guantánamo. In fact, he has made it clear that there will be no prosecution for those who justified and committed torture at the camp.

At the same time, prisoners have been subjected to military commissions rather than civilian trials, and many of the procedures related to those commissions have faced challenges.

Most recently, in filings submitted to the Court of Military Commissions Review, Army Brig. Gen. Mark Martins agreed that the US Court of Appeals for the DC Circuit had the right to hear the challenge to the military court's practices. Yet Martins defended a security regime in military commission hearings at Guantánamo challenged by fourteen media organizations and the ACLU, who argue that military restrictions amount to censorship.

This comes after a major struggle among military lawyers last year over an order issued by the commanding officer at Guantánamo, Rear Admiral D. B. Woods, which created a regime for screening of confidential attorney-client communications.

Colonel J.P Colwell, Guantánamo Chief Defense Counsel, issued an ethics instruction to all attorneys in the Office of the Chief Defense Counsel, instructing them not to comply with the order. Attorneys in several cases challenged the order. There was no ruling on those challenges, however, before proceedings in at least one of the cases at issue, that of Abd Al-Rahim Hussein Muhammed Abdu Al-Nashiri. There was also no redress for the difficulties created for his legal defense team by the order.

Concerns over confidentiality have only increased since then. As Kevin Gosztola of Firedoglake puts it, "With each hearing before the Guantánamo military commission, it becomes more evident that privileged legal communications defense attorneys are supposed to be able to have with their clients are being violated."

In February of this year, it was revealed that the military hid microphones in rooms where attorneys meet with their clients. In addition, attorneys for five Guantánamo prisoners have alleged that their clients' confidential legal documents were seized from their rooms by guards. Ironically, they noted the theft happened during a pretrial hearing regarding, of all things, claims of military eavesdropping on confidential communication.

To compound the concerns around this eavesdropping, Guantánamo defense attorneys Scott McKay and David Nevin were two of the plaintiffs in Clapper. In a statement made before the Supreme Court hearing, they noted, "Our work may require us to correspond with potential witnesses about sensitive information, making us even more susceptible to improper government surveillance."

Meanwhile, the Obama administration has made it very clear that Guantánamo is nowhere near being closed, and has offered not even an aspirational date for closure, regardless of the fact that the majority of prisoners left are low risk and low value. While many of the detainees currently there have been cleared for release, congressional restrictions and a lack of political will from the Obama administration have made their release impossible.

Prisoners at the facility are currently staging an ongoing hunger strike, which started after personal belongings, including Korans, were confiscated from some of these low risk prisoners. The government acknowledged that the strike has spread to more prisoners and that some of the strikers are "being fed through tubes inserted into their stomachs."

A letter from attorneys for the prisoners stated, "We understand that Arabic interpreters employed by the prison have been searching the men’s Korans in ways that constitute desecration according to their religious beliefs, and that guards have been disrespectful during prayer times.”

At this point, particularly in light of these violations of due process and human rights, there is no real justification why admittedly low-risk prisoners continue to be held. In fact, there is no real justification for the continued use of military commissions at all.

Case in point, on March 8th, Sulaiman Abu Ghaith was arraigned in federal district court in the Southern District of New York. Abu Gaith, Osama Bin Laden’s son-in-law, was captured in Turkey. His case is exactly the kind that would have gone to Guantánamo in years past.

Yet as Guantánamo defense attorney Lt. Colonel Sterling Thomas states: "federal courts have again become the preferred method of trying those accused of terrorism." For now, however, this seems to be perhaps an aspirational statement; there are still 166 detainees at Guantánamo.

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