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Guantanamo Detainees Face Changing Legal Process

June 7, 2007 at 6:30 PM EST
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JUDY WOODRUFF: Next tonight, how many rights should Guantanamo detainees have? NewsHour correspondent Kwame Holman has that story.

KWAME HOLMAN: It’s been more than five years since the first group of prisoners captured on the battlefields of Afghanistan was shipped to the U.S. military base in Guantanamo Bay, Cuba. Hundreds of prisoners later, the Bush administration’s attempts to design a process to deal with them still are mired in legal challenges.

SEN. PATRICK LEAHY (D), Vermont: We are talking about something that goes to the basic core of what we are as Americans.

KWAME HOLMAN: The debate has raged within the White House, the Supreme Court, and in Congress, where the central issue remains: Should the detainees have access to the U.S. judicial system? Republican Senator Lindsey Graham of South Carolina, for one, says no.

SEN. LINDSEY GRAHAM (R), South Carolina: To those of you who want to turn an enemy combatant into a criminal defendant in U.S. court and give that person the same rights as a U.S. citizen to go into federal court, count me out. Never in the history of law of armed conflict has an enemy combatant, irregular combatant, or a POW been given access to civilian court systems to question military authority and control.

KWAME HOLMAN: But just this week, new problems arose for the Bush administration’s policy. Military judges threw out war crimes charges against two Guantanamo detainees because the U.S. military had not classified them as, quote, “unlawful enemy combatants.” Critics call that a technicality, but Congress last year required that designation before a detainee can be tried.

Colonel Dwight Sullivan represents one of the detainees.

COL. DWIGHT SULLIVAN, Chief Defense Counsel, Office of Military Commissions: Once again, there’s a fundamental impediment to the military commission system proceeding. Once again, the military commission system has demonstrated that it’s a failure.

Detainees' legal limitations

Susan Baker Manning
Bingham McCutchen
Your client is chained to an eyebolt in the floor with a leg shackle, and this is the context in which you're supposed to develop a really trusting relationship.

KWAME HOLMAN: Some experts say this week's ruling will require a complete overhaul of the Guantanamo legal process, all the way back to step one, at which detainees are designated as "enemy combatants," allowing the military to hold them indefinitely. That's decided before a military tribunal at Guantanamo, where the accused are not afforded a lawyer and may not see all the evidence brought against them.

SUSAN BAKER MANNING, Bingham McCutchen: The government has gathered all of the evidence relevant to whether our clients are enemy combatants or not, and we think that evidence will clearly show that they're not.

KWAME HOLMAN: Two years ago, Susan Baker Manning and her prestigious Washington law firm received a letter from a group of Guantanamo detainees pleading for legal help. Now, Manning represents seven Chinese Muslims, known as Uyghurs, who were picked up in Pakistan in late 2001 and have been held at Guantanamo for five years.

SUSAN BAKER MANNING: Your client is chained to an eyebolt in the floor with a leg shackle, and this is the context in which you're supposed to develop a really trusting relationship.

KWAME HOLMAN: As outlined in the 2005 Detainee Treatment Act, detainees now can appeal their status with the assistance of counsel, but the detainees have access to only one court, this federal court of appeals in Washington. And now, as Manning proceeds with appeals on behalf of the Chinese Uyghurs, the Bush administration is trying to limit the access detainees' lawyers say they need to represent their clients effectively.

At a D.C. Court of Appeals hearing last month, Justice Department lawyers argued for granting attorneys just one eight-hour visit, during which they need to persuade a detainee to sign an agreement accepting legal representation; allowing military officials to monitor all correspondence between attorneys and detainees; and limiting the evidence the defense can review in filing an appeal.

SUSAN BAKER MANNING: The government treats the attorneys as if they were the enemy. The attorneys are not the enemy here; the attorneys are trying to promote the rule of law.

Not a traditional legal process

Rep. Jerrold Nadler
D-N.Y.
Every normal safeguard that we take for granted in American law has been eliminated here. And these safeguards all have hundreds of years of experience behind them.

KWAME HOLMAN: Former Bush White House Associate Counsel Brad Berenson says the limitations are justified.

BRAD BERENSON, Former Associate White House Counsel: Because this is not a criminal trial, because this is not a process by which the United States is reaching a determination of guilt and imposing punishment on these people, it's not a traditional adversary process.

KWAME HOLMAN: But Democratic Congressman Jerrold Nadler of New York disagrees and has introduced legislation to grant fuller legal rights to the detainees.

REP. JERROLD NADLER (D), New York: Every normal safeguard that we take for granted in American law has been eliminated here. And these safeguards all have hundreds of years of experience behind them, why they are necessary to prevent guilty -- to prevent innocent people from being found guilty wrongly.

REP. JEFF MILLER (R), Florida: Our president is having to contend with, on a daily basis, threats and targets that are outside of the United States looking in.

KWAME HOLMAN: Florida Republican Jeff Miller, a member of the Armed Services Committee, says the civilian lawyers' participation can create national security risks, particularly when it comes to examining evidence.

REP. JEFF MILLER: There are many people that say that they should be able to see everything that the United States may have. Well, unfortunately, in this war on terror, much of that information is classified, and you cannot let the outside world get a hold of some of that classified information, because it won't stay classified very long.

KWAME HOLMAN: But Congressman Nadler says that can make it almost impossible for lawyers to prove a client's innocence.

REP. JERROLD NADLER: The normal rule in American justice is, if the government knows of exculpatory evidence -- that is, evidence that tends to prove the person innocent -- they must tell the defense about this. Well, here the government says it doesn't need to, except when it wants to.

Attorney-client correspondence

Brad Berenson
Former Associate White House Counsel
I don't think demanding more than eight hours to try to convince an unwilling client to hire you, you know, is necessarily a fair thing to expect when the United States military has the camp to run and security to preserve.

KWAME HOLMAN: At last month's hearing, two members of the Court of Appeals' three-judge panel also seemed skeptical. Chief Judge Douglas Ginsburg said, "I don't see how there can be any meaningful review if we don't know what we don't know." And Susan Baker Manning says the government's insistence on reading correspondence between lawyers and detainees violates attorney-client privilege.

SUSAN BAKER MANNING: I certainly think my client is never going to write me, knowing that a government censor is going to read that, and anything that my client says to me is going to be known to the military.

KWAME HOLMAN: But the Justice Department in a brief argued that permitting any correspondence is "an allowance that creates inherent risks to national security and Guantanamo base security that are difficult to ameliorate and impossible to extinguish."

What troubles Manning most, however, is the Bush administration's proposal to limit a lawyer's initial meeting with a detainee and the agreement the detainee must sign during that time. The first line of the agreement reads, "You have been found to be an enemy combatant by combatant status review tribunal."

SUSAN BAKER MANNING: It is a way to strangle the case in the cradle. No detainee is going to sign something that looks like a confession, and that's what the government wants.

KWAME HOLMAN: If detainees don't sign, they forfeit their right to a lawyer. But, again, Brad Berenson points to security risks at the Guantanamo Bay detention center.

BRAD BERENSON: I don't think demanding more than eight hours to try to convince an unwilling client to hire you, you know, is necessarily a fair thing to expect when the United States military has the camp to run and security to preserve.

KWAME HOLMAN: The legal obstacles the Justice Department has proposed come amid reports that more and more detainees already have stopped cooperating with their lawyers.

SUSAN BAKER MANNING: I'd like to think that our clients trust us, but that is a very tenuous proposition. We're in the difficult position of coming down to Guantanamo. We look like their interrogators; we sound like their interrogators. Interrogators have gone into a number of detainees, masquerading as attorneys, so we'd have to convince them that we are not interrogators.

Trying to protect basic rights

Sen. Patrick Leahy
Senate Judiciary Committee
This doesn't give people new rights or new defenses. It just assures that somebody's looking to make sure their basic rights are protected.

KWAME HOLMAN: The Defense Department denies that it has sent interrogators to Guantanamo posing as defense attorneys, but it's a charge the new Democratic majority in Congress might look into as it raises larger challenges to the Bush administration's detention policies.

Today, the Senate Judiciary Committee voted to restore habeas corpus rights to the detainees, which would grant them more access to U.S. courts. Committee Chairman Patrick Leahy.

SEN. PATRICK LEAHY: This doesn't give people new rights or new defenses. It just assures that somebody's looking to make sure their basic rights are protected.

KWAME HOLMAN: Even if Congress passes a new law, Brad Berenson predicts only one logical end to the debate.

BRAD BERENSON: Sooner or later, the issues arising from the military commissions and from the CSRTs will be before the United States Supreme Court, and they will, as usual, have the last word.

KWAME HOLMAN: Meanwhile, the D.C. Court of Appeals is expected to rule on defense attorneys' access to the detainees within the next few months.