WASHINGTON - One is a World War II Navy veteran, a judge appointed by Richard Nixon who served 20 years on the bench. Another is an observant Jew working for two Muslim brothers held by the U.S. military 1,000 miles apart.
They include family practitioners, white-collar litigators, anti-death penalty activists and constitutional law professors. They are Republican and Democrat.
Three years into the Bush administration’s policy of holding suspected terrorists without charge, a far-flung cast of lawyers have come forward to plead the cases of Muslim captives kept at Guantanamo Bay, Cuba. They work for free.
So many that the Manhattan-based Center for Constitutional Rights lists more than 200 lawyers working on 140 Guantanamo prisoners’ habeas corpus petitions, challenging the government to explain why it is holding them. In the lawyers’ view, it’s a struggle over post-Sept. 11 civil liberties.
This is absolutely the most important litigation in my mind since Brown v. Board of Education,'' said lawyer Marc Falkoff, whose New York firm is defending 13 Yemenis who have been held at the prison for three years. This is the president saying, ‘if I say so, it is so. If I say you are an enemy of the United States, and you are too dangerous to be tried by the judicial system, I can keep you locked up forever.’’’
The Pentagon says the 540 or so captives at Camp Delta are terrorists whose interrogations have yielded valuable intelligence against al-Qaida and the Taliban in Afghanistan. It says the military can weed out anyone who shouldn’t be there by using classified intelligence, and has consistently spurned civilian judicial oversight.
The showdown continues Thursday in a federal court, where the Bush administration defends its Military Commissions - or war crimes court - as a response to international terror.
Meantime, the number of lawyers willing to represent the detainees without charge - and cover costs from their own pockets - is unbelievable,'' says Tina Foster, who is coordinating the cases at the New York law center. Clients range from citizens of oil-rich Saudi Arabia to dirt-poor Chad in sub-Saharan Africa. Lawyers and their firms are paying their court costs, travel fees and translators. Some examples: -A senior partner at the Clifford Chance law firm took on the case of an alleged terrorist because both spoke French. To reach his client on the remote Navy base in Cuba, he had to fly to Fort Lauderdale, then take a small, cramped charter flight. -Solo practitioner Marjorie Smith, 59, of Piermont, N.Y., sued on behalf of a French captive who was sent home recently, after months of behind-the-scenes U.S.-French diplomacy. She never met him but is considering taking another client. You’re up against people in the Department of Justice who may not have unlimited resources but they have a lot,’’ she said.
-British-born U.S. lawyer Clive Stafford Smith, an early activist, has traveled the Arab world as a Soros Foundation fellow to get powers of attorney from families of Guantanamo detainees. A former Louisiana-based death penalty opponent, Smith is also getting prisoners to identify fellow prisoners on their cellblocks who want lawyers.
There are people there not being represented who are sitting there rotting,'' Smith said as he headed for his third trip to the prison camp. Some Guantanamo detainees' lawyers argue their clients are victims of mistaken identity. Others are military veterans who say, whatever crime the captives may have committed, the United States can both provide due process and protect national security. As a lawyer, I’m simply outraged at the fact that these guys have been sitting down there for three years with no impartial determination being made on whether these are good guys or bad guys,’’ said Robert Rachlin, 68, a former Vermont state attorney who is chairman of the state university’s Center for Holocaust Studies board.
Awaiting security clearance, he has yet to meet his client, Algerian Jamel Ameziane, and does not know the circumstances of his capture or what the United States claims he did. But the senior partner in a 60-lawyer Burlington firm said he volunteered to take the case because they both speak French.
Other lawyers who have taken on Guantanamo cases have practices in Northampton, Mass., Minneapolis, Portland, Ore., Chicago, Seattle, Atlanta and Philadelphia - and at some widely known multinational firms.
We realize we are dealing with very unpopular clients,'' Rachlin said. But, this may sound a little bit sanctimonious, I did take an oath several times in my life to defend and support the Constitution of the United States. All I’m doing is keeping my word.’’
Rachlin is part of a recent surge in volunteers who responded to a call by the American College of Trial Lawyers.
The Bush administration had banned detainees from getting civilian lawyers from the moment it set up the camp, prompting Michael Ratner’s Center for Constitutional Rights to sue.
In June the U.S. Supreme Court ruled in response to a lawsuit by Ratner and others that the Navy base at Guantanamo Bay fell under U.S. jurisdiction, paving the way for the first lawyer visits in August. Then a federal court ruled against the Pentagon six months ago, upholding attorney-client privilege and blocking military intelligence eavesdropping on their meetings.
Instead, the court set up a strict security regime regulating what lawyers can reveal publicly and what they must present under seal.
Lawyers from Falkoff’s New York firm have visited the base three times, and Falkoff estimates that he has spent about 92 hours with his 13 Yemeni clients - men in their 20s and 30s mostly seized by Pakistani authorities and turned over to U.S. troops in Afghanistan.
He says they were bystanders, scooped up not on the battlefield of Afghanistan but mostly in neighboring Pakistan - in the wrong place, at the wrong time.
I would invite any one of them to sleep over at my apartment,'' said Falkoff, 38. None of these guys are terrorists, none of these guys is a danger to the United States.’’
In a curious twist, Falkoff’s firm, Covington and Burling, gave pro bono representation to the widows and orphans of law enforcement officers and firefighters killed in the Sept. 11 attacks, in negotiations with a federal victims compensation fund. Covington lawyers also argued - and lost - Fred Korematsu’s World War II-era Supreme Court challenge of the U.S. internment of Japanese and Japanese Americans in the United States, a policy for which American presidents later apologized.
Oregon lawyer Jan Kitchel, a Republican, said he recently signed on to represent Ahmed al Wazan, though the lawyer has yet to get a security clearance to let his client know.
Usually in normal society if you're locked up you get access to a phone,'' he said. (EDITORS: STORY CAN END HERE) In contrast Newark, N.J., lawyer Mark Berman, 37, a director at Gibbons Del Deo, has been mired in the enemy combatant issue for several years. His firm's namesake partner, Judge John J. Gibbons, argued before the Supreme Court the case that ultimately allowed lawyers to represent Guantanamo detainees nearly three years after the first one arrived. A World War II Navy veteran who served at Guantanamo about 50 years ago, Gibbons was named to the federal bench by Nixon and retired in 1990. Berman may also be the only Hebrew-speaking, observant Jew serving as a habeas lawyer. His clients are two Qatari brothers whom the Bush administration has labeled enemy combatants - Jarallah al Marri held at Guantanamo, and his older brother Ali, 38, a U.S immigrant held since June 2003 at a South Carolina Navy brig. Their parents must be very proud,’’ he cracks in Borscht Belt humor, but gets serious when he says the elder Marri’s case was an outrage to American standards of justice.'' Marri, one of two enemy combatants now on U.S. soil, was originally arrested in 2001 on credit card fraud in Peoria, Ill. Two years later the Bush administration averted a trial by declaring him an enemy combatant, a suspected al-Qaida member. The firm took Jarallah's case at his older brother's request. It’s become quite clear to me, having worked on Ali Amari’s case for two years now,’’ Berman said, ``that the only thing the government responds to is lawyers advocating very vigorously.’’