Defending due process for Guantánamo detainees
Defense attorneys for Guantánamo detainees stand up for due process despite hate mail, threats, and Dick Cheney's daughter.
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Guantánamo cases are litigated in judicial limbo.Much of the evidence against the accused is classified, and lawyers aren't allowed to discuss what they've seen. Mr. Margulies describes "a yawning chasm between what some commentators and former government officials say and what I know to be so. And I cannot bridge that chasm because I'm bound by agreements not to disclose information."
In fact, detainee lawyers must turn over their notes to the government when they leave Guantánamo. Notes are stored at an undisclosed secure location; when lawyers need to write briefs on the cases, they must travel to Virginia and type on government computers.
It's impossible to talk about the legal guilt or innocence of most detainees. Two pleaded guilty before military commissions; one was tried and found guilty; a third faces criminal charges for involvement in two 1998 US embassy bombings.
A Department of Defense report alleged in April 2009 that 74 released detainees have "reengaged" in terrorism, or are suspected of it, including Said Ali al-Shihri, now a leader of Al Qaeda in Yemen. The report omits much identifying information, making verification hard. The Department of Defense did not respond to requests for comment.
Still, the question of guilt troubles some lawyers. Dossari was rumored to be an Al Qaeda recruiter in Buffalo, N.Y., a jihadi in Chechnya, a member of a Muslim fighting force in Bosnia. No formal charges were ever filed. Colangelo-Bryan says that the dearth of charges – and evidence – is a relief to him. The government dropped its only accusation against Dossari – that he'd been present at Tora Bora, an Al Qaeda enclave in Afghanistan – before it went before a judge.
Azmy says he's less attached to the case of Zubaydah, in part because there's better evidence against him. However, Azmy says most public information about Zubaydah "is shockingly, wildly, dizzyingly wrong and overstated, and the government's basically admitted that."
Azmy suggests that the Zubaydah story may play differently around the country: "I live in New York, so people are focused on the fact that he was waterboarded" and less on the question of guilt. "If I lived in Lubbock, [Texas,] I suspect people would assume that there had to be a reason for him to be waterboarded."
The bigger issue, Margulies says, is not to think categorically. "We don't make judgments about 'all those people.' A hundred years ago, it was all those Catholics, and another time it was all those black people, and ... all those Japanese people," he says. "If you want to hold somebody, in court you demonstrate that this person, not 'all those people,' has done something that justifies continued detention.... That's what we call judicial review."