Government Attempts End-Run on Detainee Rights

In response to the U.S. Supreme Court’s ruling that suspects imprisoned during the so-called “war on terrorism” could use the American legal system to challenge their detention, lawyers for prisoners held at the Guantanamo Bay detention center are moving forward with challenges in U.S. courts while the Department of Defense continues its efforts to further restrict detainees’ rights.

The Center for Constitutional Rights has begun putting in place a framework that will apply the Supreme Court’s mandate for speedy justice for the detainees. On July 2, it filed five petitions in Washington, D.C., federal court on behalf of nine of the Guantanamo detainees it represents.

“We are bringing the petitions to court to test the legality of the detentions,” said Michael Ratner, President of the Center for Constitutional Rights (CCR). “We want access to our clients now.” The CCR is a non-profit legal and educational organization dedicated to protecting and advancing the rights guaranteed by the U.S. Constitution and the Universal Declaration Human Rights.

In addition to petitioning for immediate access to the detainees, the CCR is asking the court to stop the U.S. government from using coercive interrogation techniques on the Center’s clients and to award damages to those intimidated by Guantanamo personnel.

The petitions further contend that the Bush administration has “exceeded the constitutional authority of the Executive and has violated and continues to violate the War Powers Clause by ordering the prolonged and indefinite detention of the Detained parties without congressional authorization.”

The Center currently represents 53 individuals who have been held at Guantanamo Bay for more than two years. The five petitions filed this month on behalf of nine detainees are grouped generally by the detainees’ nationality. They include petitions for a Turkish citizen with German residency and two French citizens seized in Pakistan; two refugees, a Palestinian and an Iraqi, with residences in England who were seized in Gambia; a Canadian citizen who was fifteen years old when he was seized in Afghanistan; and two British citizens whose country of detention is unclear.

CCR expects to submit more court petitions in the coming days, with the goal of eventually filing on behalf of all 53 clients.

According to a CCR press release, the group faxed a letter on July 1 to Secretary of Defense Donald Rumsfeld demanding access to their clients. In the letter, the Center said it was ready to “organize a delegation of attorneys” to provide legal counsel for the detainees. As of July 10, the CCR had not received a response.

“Without access to a lawyer,” Jeff Fogel, the Center’s legal director, explained in the faxed letter, “the Supreme Court decision would be meaningless. The right to habeas corpus has also included the right to legal assistance.” Habeas corpus refers to the right of the imprisoned to challenge the legality of their detention.

Ratner revealed that a number of large law firms have now joined the Center’s legal battle with the Bush administration, including Haile and Dorr in Boston, Keller and Hechman in Washington, D.C., and the Clifford firm based in the UK. “We are a small organization and it would be difficult to handle all the cases by ourselves,” Ratner said. “The fact that these big and prominent law firms are coming aboard shows that the tide has turned in favor of the Guantanamo detainees.”

Meanwhile, however, the U.S. Department of Defense announced its intent to set up what it calls “Combatant Status Review Tribunals” to review the continued detention of individuals at Guantanamo Bay. Under the Defense Department plan, the detainees would not be allowed legal assistance. Instead, they would be provided with what the Bush administration refers to as a “personal representative,” whose job it would be to explain the legal process to the detainees and to help them gather evidence.

The CCR objects to the plan for a number of reasons: The review tribunals do not appear to bar the use of coerced confessions, and it does not appear that communication between the detainee and his “personal representative” will be protected by any kind of confidentiality protocol.

“With all that we’ve learned in the past few months about the mistreatment and torture of prisoners in U.S. custody, it’s now more important than ever to ensure that coerced statements are not relied upon to curtail an individual’s freedom,” said Barbara Olshansky, deputy legal director for the CCR.

The Center contends that coercive techniques, solitary confinement and three months of intense interrogations forced two of their clients, Shafiq Rasul and Asif Aqbal, to falsely confess that they had met Osama bin Laden.

“The interrogators at Guantanamo Bay showed Rasul and Iqbal a video, ostensibly of them with Osama,” Ratner recalled. “Our clients denied again and again that they were in the video, but the interrogators kept persisting. Finally, after three months, our clients told them what they wanted to hear. Later, however, the British [Secret Intelligence Service] proved that the Rasul and Aqbal were in the United Kingdom at the time the video was made.”

The Center says that despite the U.S. Supreme Court ruling, justice has been delayed for the Guantanamo detainees and their lawyers. “We don’t know when we will get access to our clients,” Ratner conceded. “It could take a couple of weeks, maybe several weeks, or we might have to litigate through the rest of the summer.”

Still, he remains optimistic. “We have a lot of weight on our side – a major Supreme Court ruling, big law firms that have joined us. … The government is really scrambling now. We feel it’s just a matter of time.