Justice & Liberty Given The Cold Shoulder

The right to file a grievance and seek justice from our courts is being severely limited by the Bush administration and the Supreme Court. There are several steps--more like nails in the coffin of civil liberties--that are being taken to block the exercise of civil liberties and human rights that are guaranteed by our Constitution and the Universal Declaration of Human Rights.

The first step is the call and effort by the Bush administration to restrict lawyers representing the prisoners held at Guantanamo Bay from actually meeting with their clients except when approved and supervised by the government. In addition to restricting communication and access to their clients, the government is seeking to restrict access to evidence against their clients.

There is a fundamental problem in this approach in that it is a clear violation of the very foundations of our Constitution, our laws and the principles behind them, and the treaties we have signed supporting human rights and liberty. This approach undermines our standing in the international community, our efforts toward liberating Afghanistan and our supposed rationale for invading and occupying Iraq, and makes us war criminals.

In fact, I make the claim that our sitting by and watching this occur without a collective and total outcry against such violations of principle and justice makes every American a war criminal in the same way that every German that stood by and watched Hitler and his fascists commit similar crimes became responsible for their crimes against humanity. However, there is a difference. The Germans take responsibility for their culpability by standing up against such things today while we are idly standing by and letting this crap happen. But, just like the erosion of rights that occurred under Hitler, this erosion of liberty will sooner or later be broadly applied to us. Already we have seen the erosion of civil liberties under the USA Patriot Act, the warrantless spying programs, the unlawful surrender of private transaction records, etc.

But as soon as there is a precedent for denying access to a lawyer and the rights to see the evidence against an accused, it can--and will--be used to justify doing the same against US citizens. We must remember that our entire legal system is subject to the principle of "stare decisis," meaning that previous decisions (precedent) lay the foundation for current situations.


Court Asked to Limit Lawyers at Guantánamo

The Justice Department has asked a federal appeals court to impose tighter restrictions on the hundreds of lawyers who represent detainees at Guantánamo Bay, Cuba, and the request has become a central issue in a new legal battle over the administration’s detention policies.

Saying that visits by civilian lawyers and attorney-client mail have caused “intractable problems and threats to security at Guantánamo,” a Justice Department filing proposes new limits on the lawyers’ contact with their clients and access to evidence in their cases that would replace more expansive rules that have governed them since they began visiting Guantánamo detainees in large numbers in 2004.

The filing says the lawyers have caused unrest among the detainees and have improperly served as a conduit to the news media, assertions that have drawn angry responses from some of the lawyers.

The only risk to security at Gitmo is coming from the fact that the prisoners being held are realizing that they may indeed have rights and are acting upon those rights. They are demanding that the case against them be proven by applying writs of habeas corpus and demanding a probable cause hearing. Of course, if the US government actually had a case against the vast majority of those being held the proposition of probable cause and habeas corpus would not present a problem. But, given the fact that out of all the hundreds of prisoners that have been released from Gitmo, only a handful--no more than six--have been held accountable by the governments to which they were released. The reason they were not held accountable is simply because there was no evidence that they had done anything wrong.

The dispute is the latest and perhaps the most significant clash over the role of lawyers for the detainees. “There is no right on the part of counsel to access to detained aliens on a secure military base in a foreign country,” the Justice Department filing argued.

This is a bogus argument because all military bases, whether leased or permanently ceded to the US, are considered US soil for the purposes of military and civilian laws. This point has been made and set in precedent by the fact that military personnel serving on bases in foreign nations that are accused of a crime are subject to the Uniform Code of Military Justice (UCMJ). Civilians serving on a military base on foreign soil are subject to US laws while on base and the laws of the host nation while off base.

The argument being presented is self-serving and arbitrary, capriciously applied to promote an "ends justifying the means" approach that undermines, circumvents and erodes not only the rights and liberties of those being imprisoned at Gitmo and other places operated by the Bush administration, but our rights and liberties as well.

Under the proposal, filed this month in the United States Court of Appeals for the District of Columbia Circuit, the government would limit lawyers to three visits with an existing client at Guantánamo; there is now no limit. It would permit only a single visit with a detainee to have him authorize a lawyer to handle his case. And it would permit a team of intelligence officers and military lawyers not involved in a detainee’s case to read mail sent to him by his lawyer.

If we allow this to happen, we are setting ourselves up for the same approach in our criminal processes in our daily lives. We are saying that any accusation--a mere accusation--can be prosecuted without a full and forceful legal challenge to the case. We are saying that finger-pointing can become the sole reason for imprisonment, harsh treatment, indefinite detainment, and runaway prosecution.

The proposal would also reverse existing rules to permit government officials, on their own, to deny the lawyers access to secret evidence used by military panels to determine that their clients were enemy combatants.

Under the Universal Declaration of Human Rights all accused persons have a fundamental and inviolate right to see and challenge the evidence being used against them. Our own Bill of Rights guarantees the right to confront the evidence being used against anyone accused of a crime or unjust act. If we allow this we are allowing a runaway government to permanently erode our own rights.

Many of the lawyers say the restrictions would make it impossible to represent their clients, or even to convince wary detainees — in a single visit — that they were really lawyers, rather than interrogators.

Jonathan Hafetz of the Brennan Center for Justice at New York University, a lawyer who has helped to coordinate strategy for the detainees, said the government was trying to disrupt relationships between the lawyers and their clients and to stop the flow of public information about Guantánamo, which he described as a “legal black hole” before the courts permitted access for the lawyers in 2004.

“These rules,” Mr. Hafetz said, “are an effort to restore Guantánamo to its prior status as a legal black hole.”

Indeed, that is exactly what the goal of this effort by the government: disrupting the relationship and communication between the lawyers and the accused. By doing so, they restore absolute control over the hearts, minds and bodies of those being imprisoned, allowing outright war crimes and crimes against humanity to continue without scrutiny, condemnation or redress. While many may criticize my words and statement that the US is indeed committing war crimes and crimes against humanity, I make the assertion based upon the findings of the Nuremberg trials.

The Nuremberg trials established that merely detaining people without lawful justification--proven in accordance with standards and precedents of international law--was a crime against humanity. Denying a person the right to redress of grievances through due process was, and is, a crime against humanity. Capturing and detaining (imprisoning) people indefinitely, without proper charges and due process, is a crime against humanity. Capturing these people in an area under military jurisdiction and control, and detaining them without provable cause and due process, is a war crime, as was illustrated in cases prosecuted against Gestapo and SS commands, as well as the operators of the concentration camps. We need to remember that the cases against the German commanders running the concentration camps were not based on the maltreatment of their prisoners alone. Indeed, the prosecution of these commanders included charges for just maintaining these camps without cause, justification or due process and redress.

The dispute comes in a case in which detainees are challenging decisions by military panels that they were properly held as enemy combatants. The Justice Department’s proposed rules could apply to similar cases that lawyers say are likely to eventually involve as many as 300 of the roughly 385 detainees now held at Guantánamo.

By stating that these folks are "enemy combatants, the US government is obligated to provide for rights under the Geneva convention. By employing a military tribunal to prosecute these prisoners, the right to be represented by a lawyer is not only an obligation to be assured by the US government, but the right includes allowing an international court to oversee these proceedings. But the Bush gang of fascist thugs want to cut and weave the law in their own fashion, avoiding any requirements that they adhere to established rights, precedents and principles that might actually reveal the bogus nature of their actions.

But the Supreme Court has taken a step to enable the dysfunction of the Bush administration, proving that ultra-conservative bias and fascism exist on the bench of our highest court.

Supreme Court Rejects Guantanamo Military Commissions Case

The US Supreme Court Monday declined to hear a lawsuit brought by two Guantanamo Bay detainees challenging the legality of their military commissions. In Hamdan v. Gates and Khadr v. Bush, 06-1169, Yemeni Salim Ahmed Hamdan and Canadian Omar Khadr sought to challenge the constitutionality of Congress' decision to deny habeas challenges by suspected terrorists under the Military Commissions Act of 2006. In early April, the Court declined to hear another case brought by other Guantanamo detainees on whether those prisoners could challenge their detention in US federal court.

Last year the Supreme Court ruled that President Bush's military commission system violated US and international law in a previous lawsuit filed by Hamdan, Hamdan v. Rumsfeld. Subsequently, the Bush administration proposed the current law restructuring the military commissions, but lawyers for Hamdan and Khadr contend that the new system is substantially similar to the old one.

REFERENCES:

DOJ Seeking Additional Restrictions on Guantanamo Lawyer-Detainee Contact

Guantanamo Detainees Ask Roberts to Suspend Habeas-Stripping Case Rejection

Lawyers Lobby US Legislators to Return Habeas Rights to Guantanamo Detainees

US, Australia 'Prepared to Throw Every Legal Principle Out the Eindow': Ex-PM

Former CIA Director Denies Use of Torture in Interrogations

Canada Government Now Says It Knew of Torture Claims by Afghan Detainees

Ex-Guantanamo Detainee Held in Morocco After Transfer

Lawyers Taking Rumsfeld War Crimes Case to Spain After German Rejection

A Law Day Unto Himself: Beyond Presidential Power, What Is Bush Upholding?


Cutback on Gitmo Visits Concerns Lawyers

NYC Bar Chides Government on Guantanamo

ABA Condemns Proposed DOJ Restrictions on Guantanamo Lawyers

Statement of ABA President Karen J. Mathis Concerning U.S. Department of Justice Petition Regarding Counsel for Guantanamo Detainees

Timeline Of Habeas Corpus Writ

ACLU Denounces Bush Administration's Efforts to Keep Lawyers out of Guantanamo

CENTER FOR CONSTITUTIONAL RIGHTS AND 75 PRO BONO COUNSEL FOR GUANTÁNAMO DETAINEES TO MEET WITH MEMBERS OF CONGRESS TO RESTORE LEGAL RIGHTS

CCR CONDEMNS PROPOSED RESTRICTIONS ON ATTORNEY ACCESS TO CLIENTS AT GUANTÁNAMO BAY

Justice Department Proposes Vast Expansion of Domestic Surveillance

ABA CALLS ON ADMINISTRATION TO COMPLY WITH FOREIGN INTELLIGENCE SURVEILLANCE ACT IN DOMESTIC SURVEILLANCE

Lawyers for Guantanamo Detainees Claim Military Seized Privileged Papers