Wednesday, August 11, 2004

Guantanamo In Washington

Dear Colleagues:

I think it probably fair to say that most Americans do not care about the claimed constitutional rights of terrorists who have or will attempt to kill Americans or destroy our country. This writer includes himself among the noncaring, despite a dozen years in the '60s and '70s as a liberal professor (and practitioner) of constitutional law and a general civil liberties background then and afterwards. Why, then, are lots of the uncaring, myself included, nonetheless concerned that the prisoners at Guantanamo receive many of the same rights as normally accrue to Americans caught in our criminal system? We care because of idealistic concerns about what our own nation is and does, and because of selfish, self-interested concerns, supported by history, about what any nation, including this one, could become.

There are lots of recent facts that have triggered these concerns about what America is, does and could become. For example: Hundreds of people have been imprisoned and kept incommunicado at Guantanamo for 2« years. Prisoners there, at Abu Ghraib, and at secret detention centers have been tortured and/or exposed to neo torture, and some were killed. It is some people's view that knowledge of, responsibility for, and criminal liability for the torture and the neo torture go right up to the highest levels of the Pentagon and the White House -- though the press, and the Democrats, now seem to be adopting a hands-off policy about this. It is now widely thought, based partly on Pentagon and CIA admissions, that large numbers of the people we have imprisoned are wholly innocent or not dangerous -- one estimate, apparently from a CIA man, no less, who spent a year undercover at Gitmo, is that only 10% of the detainees at Gitmo are really dangerous, and the rest have nothing to do with anything (which is hard to believe, yet could be true). The Executive has urged that the President, as commander-in-chief, can ignore the law (and can torture people) if he claims this is necessary. The Executive claims that the war on terror is of indefinite duration, which means that prisoners could conceivably be kept at Guantanamo for the rest of their lives, as bizarre as this sounds, and that claims of unusual Executive power could keep surfacing for the rest of our own citizens' natural lives. Such claims could turn the United States into a militarized state, although there are thinkers who reasonably believe it already is, and for about forty or forty-five years has been, a heavily militarized state.

These are the recent facts which cause people to be concerned about what the U.S. is or could become, and to feel, therefore, that the prisoners at Guantanamo should receive the kinds of rights Americans receive in the criminal justice system lest we take further steps down the road to militaristic authoritarianism. When one reads the recent opinions in the detainee cases by the Supreme Court, here and there, through the clouds of legal technicalities and obfuscations that nobody but a committed lawyer could read (or write), one sees flashes that some of these recent facts were motivating factors causing the Court to take a baby step towards reining in the Executive -- the very same Executive, no less, for whom the very same, highly conservative Court stole the election of 2000.

There are also longer run factors, again not relating to the detainees themselves, motivating at least some of those who are concerned that the detainees at Guantanamo and elsewhere receive a reasonable complement of rights. One thinks of the American history of continuous wars from the 1600s onward, of the killings of Indians for almost 300 years, of the American psychological propensity to believe (as did Stalin) that deadly force is the answer to all problems, of the Palmer raids, of the internment of Japanese Americans (and, we have lately heard, of Italians too), of the McCarthy era, of Johnson's, Nixon's and Bush II's attacks on civil rights. While only some of these historical botcheries are directly relevant to the question of what rights should today's detainees have, it is probable that all of them are psychologically relevant because they are all warnings of what the country could become.

* * * *

What, then, is in fact occurring with regard to the Guantanamo prisoners? This, of course, is a broad subject that has been little covered by the press, because proceedings are only at their inception at the trial court level, and the press doesn't carry much news about trial court cases anyway, unless the cases involve some kind of scandalous or scurrilous matter.

So . . . . here is what is occurring currently at the trial court level on one important issue in one of the cases, and some opinions about it as nearly as one writer can discuss and can form opinions from reading some of the documents filed in court.

It appears that 14 cases have been filed by 60 aliens who are before a total of eight judges, with some of the aliens being represented by the Washington branch of one of America's oldest and most prestigious "white shoe" Wall Street law firms. The case of these particular aliens seems to be where some of the important action is now, and is before Judge Colleen Kollar-Kotelly in Washington. To have Kollar-Kotelly as their judge may not be such a great thing for those aliens. For Kollar-Kotelly had previously dismissed the same aliens' case on the government-pushed but fundamentally preposterous ground, approved by her basically conservative to reactionary court of appeals in D.C., but then overruled by the Supreme Court, that the aliens could not seek judicial help (via habeas corpus) because Guantanamo, where they are held, is not sovereign territory of the United States. This claim was, of course, a farce for several reasons, including that for 100 years the United States has had, and for the foreseeable future it will continue to have, what even the conservative Supreme Court said was "plenary and exclusive jurisdiction" over Gitmo. What we say goes at Guantanamo. The Cubans have nothing whatever to say about it. One could put it this way: Fidel Castro would not dare set foot on Guantanamo.

That Kollar-Kotelly previously rubber stamped a preposterous argument put forth by the government in the detainees' case is not a good sign now for the aliens. Nor I may say, is the Gitmo matter the only one where she has rubber stamped whatever the government wants. For Kollar-Kotelly is also the judge who, at the urging of the government and Microsoft, rubber stamped a settlement that was a governmental cave-in and a governmental dereliction of duty. The settlement was so bad that Congress -- unknown to almost all the country and the media -- recently passed a law intended to stop such judicial rubber stamping in antitrust cases, and, as a reason for the new law, repeatedly cited the judicial rubber stamping in two cases: the Microsoft case of Judge Kollar-Kotelly and, with strange serendipity, the judicial rubber stamping of a cave-in governmental settlement, with the American Bar Association, that had been opposed by the school of which this writer is Dean.

The point of all this is that Judge Kollar-Kotelly has shown herself ready to wield a rubber stamp when requested to do so by the government in important matters. Frankly, if there is to be a fair hearing with a true possibility that the detainees will receive the rights we ought to give them in our own interest, not necessarily their interest, Kollar-Kotelly probably should get off the case.

But she won't. So what is actually going on now in the case? As this is written, the parties are arguing over the detainees' right to access to counsel in their habeas corpus proceedings. The government claims that, based on past cases, the detainees have no constitutional right to counsel because, number one, they are aliens and, number two, they are not on sovereign U.S. territory (notwithstanding that the Supreme Court said correctly that Gitmo is subject to plenary, exclusive U.S. control). The government says that it can make this constitutional argument, despite the Supreme Court's decisions, because the high Court rulings regarding the detainees' right to habeas corpus were made under a statute, not under the Constitution. Nonetheless, it says, it will allow them access to counsel, but only under certain conditions (discussed below).

It is hard to understand how the government's argument that the detainees have no right to counsel is anything but bad faith. It is little wonder that the brief for the detainees opens by saying, "To read the government's papers, one would never know that this case had just been to the Supreme Court of the United States, where the government made -- and lost -- virtually the same arguments it now recycles here." (The detainees' brief also points out that in another of the cases -- the Hamdi case -- the high Court said "He unquestionably has the right to access to counsel in connection with the proceedings on remand." Hamdi, however, is a citizen, not an alien, because he was born in the U.S. (though he moved to our good friend Saudi Arabia as a child).)

In addition to almost unquestionably being bad faith, the government's argument misses a fundamental point, one with which this piece began. The government's argument is predicated on the alien detainees' individual rights or, more accurately, their asserted lack of individual constitutional rights. But to lots of us, who don't care overmuch about the constitutional rights of terrorists, the question is not simply, and in the cases of those who in fact prove to be terrorists, is not at all the alleged constitutional rights of aliens. It is, rather, what kind of country are we and what kind of country will we become. Holding people incommunicado for 2« years, torturing some of them, and claiming that the Executive, as commander-in-chief, is not subject to law is not the kind of country we want to see, especially when lots of the detainees may well be innocent. That, rather than lawyers' legalistic abstract arguments about aliens' individual rights, is the basic reason that we think these aliens should have access to counsel to challenge the government.

When you get right down to it, even the government recognizes that it can't succeed with its bad faith argument that the alien detainees have no right of access to counsel. So it is agreeing to let them see counsel under certain conditions designed to insure that the detainees and their lawyers do not reveal classified information that could aid terrorists in harming the country. In general, the conditions constitute various forms of monitoring the written and oral communications of, and the information exchanged by, the detainees and their lawyers. More specifically, the more important of the conditions are that the detainees' lawyers must obtain security clearances, that information exchanged by detainees and their lawyers will be reviewed to insure against the compromise of classified information, and that, in some cases, involving particular detainees, the communications between a detainee and his counsel will be monitored. To insure against impinging more than necessary on attorney-client communications, says the government, the classification reviews and the monitoring will be done by DOD personnel who are "walled off from participation in any court or military proceedings concerning the detainee." Also, information obtained via monitoring cannot be disclosed to anyone unless it "reflects a likely threat to national security or of immediate violence." (The monitors can also stop a face to face conversation between a detainee and counsel where it is being used to further terrorist or criminal operations or to otherwise threaten national security.)

Despite the government's ample bad faith in these cases, it really does give some pretty decent sounding reasons for these restrictions. Some detainees at Gitmo, it says (and who would disbelieve this?), are quite dangerous people. There is even one who has an extensive record of violent assaults on U.S. personnel at Guantanamo. Detainees know dangerous information, including American methods, American plans and styles of military operation, how American intelligence operates, and vulnerabilities of American systems, and some detainees have even tried to use the mail system at Guantanamo to send such information. Moreover, there are detainees who are trained in the use of clandestine and sophisticated codes and signals. Even if their lawyers have security clearances and are trustworthy, detainees might be able to send information through them via such signals and codes without the lawyers even knowing: The lawyers will be unwitting dupes in this regard. In reverse, lawyers might, even unwittingly, give sensitive information to detainees, who could somehow then pass it on to terrorists.

As said, lots of these reasons given by the government sound pretty decent, especially if one is concerned to insure the safety of our country and people. But the answers given to the government in the detainees' brief has several powerful and one or two seemingly dispositive answers.

Let's start with a dispositive one. The detainees' counsel, who apparently are easily eligible for the security clearances they need, will agree not to disclose, orally or in writing (such as in briefs), any information they obtain from their clients without prior government approval. (If there is a dispute about what can be disclosed, the court will settle it). That the government will first inspect and "clear" the information will obviate any concern that, absent monitoring or review of conversations and documents at Guantanamo itself, detainees may give their lawyers information, possibly coded information, which is helpful to terrorists, and which the lawyers would wittingly or unwittingly pass on to the latter. (The reverse situation -- i.e., that the lawyers who qualify for the needed security clearances would know and would give detainees dangerous information which the detainees would be able to pass on to terrorists does not strike me as very convincing. It is a mere makeweight.) I cannot currently understand any reason why the government would turn down this resolution of the problem unless, as some are charging, it is simply engaged in bad faith and stalling.

Another reason, which probably is also dispositive, is this. There are four detainees (at least one of whom was captured in Afghanistan) who are suspected terrorists, and have been charged with crimes like "murder by an unprivileged belligerent, and aiding the enemy." These detainees, who plainly are thought dangerous, have had access to lawyers without reviews of documents and information, without monitoring, etc. How is it, then, that other detainees, most of whom the government has not said are dangerous after more than two years of interrogating them, and lots of whom likely are wholly innocent, cannot receive access to lawyers without reviews, monitoring, etc.? The dangerous ones have been given unfettered access to counsel, but other, often non-dangerous, ones can only be given fettered access? What is wrong with this picture?

Then there also are supporting claims that many detainees are innocent persons who were detained simply because our government gave large bounties to Afghan tribesmen for every Arab they brought in (this sounds like what our government would do), that there has been 2« years of torture or neo-torture (which we know our government has sometimes done), mobsters -- whose lawyers sometimes do pass on dangerous, even deadly information that the mobsters provide -- are allowed to meet with counsel on an unrestricted basis, and that constant meetings with detainees are needed to obtain the confidence of people who know nothing of our systems, who have been kept imprisoned and incommunicado for over 2 years, and who may be afraid that almost anything they say will be used against them if learned by the government. All of these points sound reasonable, although it would be hard to think them dispositive if there really were an unsolvable threat that conversations with counsel would result in important information that can result in killing or hurting Americans being passed on to terrorists.

There is only one somewhat questionable argument being made by the detainees' counsel. The argument relies in part on a partially bombastic "Declaration," made "under penalty of perjury," by a guy who is a big shot in the American Bar Association.

The argument is that the restrictions imposed by the government will in effect destroy the right to counsel by destroying the confidentiality claimed to be a sine qua non of that right. In other words, if a client cannot talk to his lawyer without confidence that nothing that passes between them can ever be revealed to anyone else unless the client consents, clients will not talk frankly to their lawyers, the attorney-client privilege will be worthless, and "the lawyer-client relationship meaningless". This argument is the conventional wisdom, and the standard bombast, of the legal profession. It is elaborated to a fare-thee-well in the semi bombastic "Declaration" of the ABA bigshot. To get the full flavor of the bombast, one should start with the fact that the "Declaration" begins with a page and one half description of the fellow's qualifications - - including having been the top gun at a firm whose major name partner belittled "Russian Jew boys" in the legal profession eighty odd years ago (although the big shot is himself Jewish) - - and the fact that the page and one half of qualifications is beefed up by 19 pages of resume listing positions in professional organizations, published articles, books, professional appearances (on panels, etc.), prior employment, teaching experiences, honors and awards, directorships, appearances, community activities, education, and cases in which this fellow has testified in the last four years. Nineteen pages of this stuff. Modest this fellow is not, and I suppose bombast is what one should accordingly expect. The Declaration thus says, in the face of the everyday realities of the legal profession, that it is clients, not lawyers who make critical decisions, that lawyers must have loyalty unfettered by conflicts of interest, that "we are certain" that without confidentiality clients won't disclose important matters to lawyers, that the executive is showing "unprecedented and unreasonable distrust of lawyers," distrust which "shocks one," and that "It is a vast overweighting of the threat of terrorism that caused the executive branch to violate the [detainees'] rights," a "trampling" of rights which the court should not allow to be "compounded by destroying the lawyer-client relationship" "It is also true," says the Declaration, that "society has an interest in learning the content of these clients['] lawyer-clients communications and decisions. But society has a far more profound interest in guaranteeing the right of these prisoners to meaningful access to courts". The Declaration closes with a footnote saying it is submitted "in lieu of an amicus curiae brief which I was prepared to offer on behalf" of a group of ABA bigshots and "leading ethics professors,"but there wasn't enough time to have everyone sign off on it though they generally endorse his views and will seek to appear formally if time permits.

One wonders: what world is this bombast thrower living in? Lawyers make crucial decisions for clients every day and have ongoing conflicts with clients every day. How is it that "we are certain" that the attorney-client relationship will be meaningless without utter confidentiality, when people tell highly confidential things to non-lawyer professionals who have no similar privilege, and when many people who consult lawyers don't know about and don't care about the attorney-client privilege? Not to mention the evil that has been protected by the privilege (as in the tobacco cases and many others). The idea that one is "shock[ed]" by distrust of lawyers boggles the mind, since such distrust is widespread. And what would one think of the privilege of confidentiality if it somehow led to another Twin Towers? The truth is, I believe, that the attorney-client privilege, rather than being a bedrock of our system, is far more a device by which lawyers get business which sometimes would otherwise go to other professional or business people, and that much of the Declaration is bombast a outrance.

Yet the Declaration does make one point of great importance in the particular circumstances of the case, a point rightly adopted in detainees' brief. If information passing between lawyers and detainees is reviewed or monitored, the detainees - - particularly after having been held incommunicado in a foreign land by foreign language speakers for 2 « years, and perhaps having been tortured or subjected to neo torture as well - - might not want to provide the names and locations of family members and friends who could provide helpful testimony, for fear that what happened to them could happen to the others. They might be reluctant to share details of past mistreatment, for fear it could begin again. They might not want to share "troublesome" facts, for fear that reviewers or monitors would report such facts. These seem like reasonable concerns. And, without having to say that attorney-client confidentiality is the greatest thing since sliced bread, these concerns can be accommodated by ruling against the restrictions on access to counsel that the government proposes, while protecting the nation by adopting the offer of detainees' lawyers to disclose to third parties no information received from their clients unless the government first agrees or, if it doesn't agree, a court overrides it.

It now remains to be seen what the government says and what Judge Kollar - Kotelly rules.
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