Wednesday, March 28, 2012


Recently I was explaining to my friend Almerindo Ojeda at the Guantanamo Testimonials Project about some of the recent changes during visits to the base to see my client. Almerindo asked me to write out a statement for the project about one of those changes. Here it is:

My last two trips to Guantanamo were the weeks of December 5, 2011 and July 10, 2011. I think it is fair to say that the procedures for attorney client visits change frequently however the changes during the last two visits were some of the most dramatic. Before I discuss those changes I want to back track just a bit. When I first started visiting my clients in 2006 I could bring with me attorney client materials-including unclassified court pleadings, letters that I had sent to my clients and of course any notes of things that I wanted to discuss with my clients. A few years later-I want to say in 08 but I am not exactly sure when-we were no longer allowed to bring with us any materials that were not in English unless a government translator reviewed and OK’d the materials. I was in the awkward position of having my attorney client mail that I would bring with me to make sure my client had received, being read by the military. I complained but to no avail-so I stopped bringing the Arabic translations and instead brought only my English versions of the letters. That was the process until this past year. When I went to visit my client in July I went through the usual screening-having my bag looked into and the food that I brought my client reviewed for contraband (straws-plastic ware-etc) and then I walked over to the military lawyer desk and I was asked if I had anything with writing on it. I said “of course.” I was told that they wanted to review it and I said all I had with me an unclassified version of my clients Traverse (the reply to his habeas petition) and I had a letter from the DOJ counsel telling me that this was the version that I was permitted to show my client. The military lawyer reviewed the materials and allowed them in. I was then told that I was not allowed to bring my wallet (which was in my brief case) into the meeting. I said “really?” The answer was “yes.” I was told that I could put my wallet in the transport van and the escort would give it back to me after the meeting. No explanation was given to me as to why I could not bring my wallet and I didn't ask.
For my December meeting I only brought with me a pad of paper with some notes on it to remind myself of things I wanted to discuss. After going through the usual screening I went over to the military lawyer desk and they asked if I had anything with me that had writing on it. I said “no, just some notes that I made.” I was then told that they wanted to look at the notes and I said “no.” That is when I was told that I could not bring anything into the meeting with writing on it unless they approved it. I told them I would not allow them to review my notes at which point I was told that I would have to put my notes back in the bus. Instead, I reviewed my notes as I was standing there and then tore the piece of paper into tiny pieces and threw my notes in the garbage.  I was then asked if there was anything in my wallet with writing on it.  I refrained from saying “duhhhh.”  I politely asked what they meant by that question and I was told if there was anything with writing on it-IDs-money, anything with writing-then my wallet could not go with me into the meeting either. I gave my wallet to the escort and walked into my meeting with my client. I did however have one thing with writing in my briefcase. I always carry a pocket edition of the constitution in my brief case and when my brief case was screened no one mentioned it. It seemed to me to be the one thing I really needed in this day and age (and place) and since no one mentioned it during the screening I decided the constitution was safe,  for now….

Friday, March 16, 2012

From Roger Fitch and our Friends down under at Justinian

The Monte Cristo syndrome

Guantánamo: give evidence against other prisoners and we might let you out, one day ... As long as you're not too angry ... The new prosecution paradigm and the latest stitch-up ... Plus, the legal basis for drone killing of Americans without due process ... Roger Fitch - Our Man in Washington 
"Farcical judicial trials conducted by us will destroy confidence in the judicial process as quickly as those conducted by any other people ... there are certain things you cannot do under the guise of a judicial trial. Courts try cases, but cases also try courts." US Supreme Court Justice Robert Jackson, Chief Prosecutor, Nuremberg Tribunal
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"Robert Jackson ... would turn over in his grave if he knew what was going on at Guantánamo." Henry King, Jr., Associate Prosecutor, Nuremberg
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The first new military commission prosecution was recently announced, against the Pakistani Majid Khan. A plea bargain quickly followed. If all goes well, Mr Khan, held without charge since 2003, will be sentenced in 2016. Is that speedy, or what?
The media were mostly cock-a-hoop over the prospect of new "war crime convictions," even though Khan, like the all the other people charged in commissions since George Bush first set them up in November 2001, will not stand convicted of any crime actually applicable to him under the law of war. 
As Melina Milazzo, counsel for the Law and Security Program, noted:  
"The US military commission system, now in its third incarnation, faces lengthy litigation over the legality of trying individuals for offenses that do not actually constitute war crimes, the potential ex post facto problems with prosecuting conduct not considered criminal until the passage of the Military Commission Act, and the scope and meaning of the rule and procedures applicable during trials."


Monday, March 12, 2012

Friday, March 9, 2012

Gitmo and the Supreme Court

Since the Boumediene decision by the Supreme Court in 2008- a decision which made clear that the men at Guantanamo were entitled to meaninful habeas corpus hearings-the DC Circuit Court has spun the Supreme Court's mandate into meaninglessness....not one Guantanamo prisoner has prevailed in the appellate court-and the supreme court has not taken on another case. Now there are eight cases in the supreme court asking for review. ScotUS blog has a rundown on the cases and the issues here.

Monday, March 5, 2012

A broken writ.....a Kangaroo court.

Watching our justice system disintegrate is particularly painful for those of us who cherish(ed) being lawyers. Chicago attorney Len Goodman describes one such experience here.