Local federal public defenders say clients denied basic legal rights
What you notice immediately about the prison at Guantánamo Bay, Steven Wax says, are the contradictions.
The almost surreal contradictions.
The most famous prison in the world - housing what the Bush administration calls the 'worst of the worst' of terrorists aiming to kill Americans - is built on a sunny, tropical island. Cuba.
The U.S. military prison complex itself - an exceedingly bleak place, according to Wax and some of his colleagues from the Portland's federal public defender's office who've traveled there - is within sight of gorgeous beaches, deep blue waters and coral reefs.
And then, of course, there's the ultimate contradiction.
That the U.S. government has, at least until now, grudgingly allowed people like Wax and others in his office to represent some of the 450 or so detainees at Guantánamo. But that there is little the attorneys can do to really defend their clients - most of whom have not been formally charged with anything and have no access to an outside court to assert their innocence.
'Unlike the ordinary prison visit, there's an overwhelming sense of hopelessness,' says Ruben Iniguez, an assistant federal public defender in the Portland office, talking about his two visits to Guantánamo to meet with the two inmates he represents. 'You are trying to give them hope. But it's much more difficult to give them tangible hope.
'As an attorney, a lot of times you feel empowered,' Iniguez says. At Guantánamo, he says, 'you feel unusually powerless.'
Iniguez spoke those words last Wednesday. He and others in his office felt even more powerless by late Thursday. That's when the U.S. Senate approved a bill that provided new military trial rules for the detainees at Guantánamo. The new rules deny the detainees any rights to challenge their detention in court.
The approved legislation, which the Bush administration was pushing, only continues a debate that has played out since shortly after the Guantánamo prison opened at a U.S. military base in January 2002.
'I don't believe judges should be making military decisions in a time of war,' Sen. Lindsey Graham, R-S.C., said during the congressional debate, arguing against allowing detainees a right to challenge their detention outside of limited military reviews.
But on the other side of the debate are human rights advocates, and some even within the U.S. government, who say the United States needs to offer some way - outside of the military hearings - for the 450 inmates at Guantánamo to be able to assert their innocence of any wrongdoing or terrorist activity. So far, 10 Guantánamo inmates have been formally charged with crimes.
While the debate has continued, Wax and a dozen or so lawyers and investigators in the District of Oregon's Federal Public Defender office - quietly and out of the spotlight - have taken on during the last 11 months an unusually large number of Guantánamo inmates as clients.
The Portland office, which Wax heads, has seven detainees as clients, more than any other federal public defender office in the country.
Wax and his colleague have visited inmates at Guantánamo a half-dozen times. They've traveled to London and to Afghanistan and Pakistan, to locate and videotape witnesses who they say back up their clients' claims of innocence.
In Afghanistan and Pakistan, they've traveled over roads that had been bombed by terrorists or antigovernment forces the day before or the day after they traveled them, Iniguez says.
And only in recent weeks, after their most recent early- and mid-August trip to Afghanistan and Pakistan, have the Portland lawyers begun talking publicly about their work, and about Guantánamo.
And about their belief that, in the name of its war on terrorism, the U.S. government has swept up innocent people, imprisoned them and allowed them no opportunity to prove they've done nothing wrong.
'There are bad guys in Guantánamo,' Wax says. But, he says, 'it's exceedingly difficult to get the truth heard: that some significant percentage of people in Guantánamo - and we can't tell you whether it's 50 percent or 90 percent, because we don't know - are innocent.
'What is repeatedly said is, 'They're the worst of the worst … everyone was picked up on the battlefield,' ' Wax says, repeating the assertions of President Bush and other U.S. officials about the inmates at Guantánamo. 'And that is plainly and simply not true.'
• • •
The Portland lawyers got assigned their first clients in the fall of last year.
That came after a U.S. Supreme Court decision that said the Guantánamo detainees had a right to challenge their detention in U.S. courts, and after the federal court for the District of Columbia assigned some of the detainees' cases to a range of federal public defenders across the country.
Eventually, the Portland office was assigned the seven detainees as clients. They were assigned that many in part because the office had expertise in cases of indefinite detention of illegal aliens and in part because, Wax says, 'people in the office were willing to put in the extra hours needed to take on these cases.'
The office continues to do its regular work providing lawyers for defendants accused of federal crimes, along with its Guantánamo work.
Today, while Wax and his colleagues continue working on behalf of all seven of their detainees, they will talk in detail about only three of the cases. That's because, Wax says, those are the cases for which they've found witnesses to support their clients' assertions of innocence.
The deepest level of detail - from Wax's team and from military records - are available on two cases. Those are the cases of an Afghan man named Nazur 'Chaman' Gul, and a Sudanese man and hospital administrator named Adel Hassan Hamad.
Both have been in Guantánamo for about three and a half years. Neither are there, according to the U.S. military's own unclassified documents, for taking up arms or planning terrorism against the United States.
Gul has been detained, according to the military documents, because military leaders believe he is associated with a possible terrorist group. Hamad has been detained, according to the military records, because the charity that Hamad works for to administer an Afghan hospital allegedly has supported terrorist groups.
Born in Afghanistan, Gul fled with his family to Pakistan during the Soviet invasion of Afghanistan in the 1980s, says Iniguez, who is representing him along with Amy Baggio, another lawyer in the Portland public defender's office. The family fled, Iniguez says, after the Guls' village was bombed and Nazur Gul, then 3 years old, lost an eye in the attack.
During the 25 years he lived with his family in Pakistan, his lawyers say, Gul worked in his family's bakery. After the United States ousted the Taliban government from Afghanistan in 2002, Gul returned - in 2003 - and found work near Gardez, Afghanistan, with the U.S.-supported Hamid Karzai government, his lawyers say.
In the spring of 2003, Gul was staying overnight at an acquaintance's home in Gardez - he had traveled to town to seek treatment for an infected molar, his lawyers say - when military personnel entered the home. Gul was taken away, along with the other man in the home, and eventually turned over to U.S. authorities and taken to Guantánamo.
As with most Guantánamo detainees, the U.S. government has not officially charged Gul. But a summary of a military hearing relating to him shows that the U.S. believes Gul was captured at the home of someone involved with a 'known terrorist organization that has long established ties to al Qaida.' The document also indicates the United States believes Gul was a member of a 'known … front' group for that organization.
Gul's lawyers say they believe he was arrested and transferred to Guantánamo for two reasons. One was that military personnel found in the home where Gul was staying an identification card the military believed was associated with a group with terrorist connections.
The other man in the house told U.S. officials the card belonged to him, Iniguez says, and that the card was for a different political party not affiliated with terrorism.
The U.S. government acknowledged in a later hearing that it had lost the card, Iniguez says.
Gul also was not helped by his nickname. A man named Chaman Gul was a mujahedeen commander in Afghanistan in the 1990s. When the military personnel learned Gul's name, they assumed he was the other man, Iniguez says.
Iniguez says that when he and his office investigators traveled to Afghanistan and Pakistan, witnesses there confirmed 'every bit of information' that Gul had provided his lawyers.
Iniguez says he understands some might believe the U.S. government has better and more credible reasons to hold Gul than reasons his lawyers are presenting. And in many detainee hearings, in front of a three-person military tribunal, classified information also is presented.
But at some point, Iniguez says, the government should be required to present those reasons to an independent court.
'All Mr. Gul is asking for is fairness, and to be given an opportunity to know what it is he's supposed to have done,' Iniguez says. 'That if, in fact, the government has evidence that he did something bad … all he's asking for is that they tell him what it is. And that they let him know why he's been held for three and a half years.'
• • •
Adel Hassan Hamad's detention also appears to be based on his association with a group - the charity he works for.
And in Hamad's case, at least one person other than his defense lawyers has argued for his release; a U.S. Army major who was part of the military tribunal reviewing Hamad's detention said it was 'unconscionable' that the military was detaining people like Hamad, only because they may work for a suspect charity.
Hamad worked as a hospital administrator in Chamkani, Afghanistan. But his home with his family - his wife and four daughters - was just across the border, in Peshawar, Pakistan.
Hamad was arrested at about 1:30 a.m. July 18, 2002, at his home, according to William Teesdale, an investigator and lawyer in the public defender's office who has investigated Hamad's case.
Teesdale says that Pakistani law enforcement officials, along with at least one U.S. government official, arrested an Algerian refugee in the first floor of the house and then arrested Hamad upstairs.
Hamad was detained for several months in Pakistan, then eventually transferred to Guantánamo.
Over about 17 years, according to U.S. military documents concerning Hamad, Hamad worked for two nongovernmental organizations, as a teacher, orphanage administrator and hospital administrator.
The U.S. military believes, according to the documents, that both organizations 'may be affiliated with Usama Bin Laden and Al Qaida operations.' And, the documents say, during his work with one of the organizations, 'the Detainee came in contact with persons who hold positions of responsibility in al-Qaida.'
According to documents summarizing one of Hamad's military hearings, Hamad denied supporting al-Qaida in any way and said he considered 'what Usama Bin Laden and his organization have done is contradictory to the teachings of … Islam.'
He told the military tribunal that if the charities he worked for had any elements that supported terrorism, he was not aware of it.
'I have never carried a weapon for one day against you,' Hamad told military officials during his second and last hearing. 'I never fought against you. I never had any hostility against you in my heart.'
'He was never on a battlefield, never near a battlefield, never provided any support to any terrorist at any time, at any point in his life,' says Wax, who is representing Hamad.
In voting against his continued detention, the U.S. Army major wrote that not all employees of a group that has elements that support terrorism can possibly be declared combatants.
'To reach such a conclusion would provide for unconscionable results,' the major wrote. 'Consequently, all physicians, nurses, and aid workers employed by alleged terrorist connected NGO's (nongovernmental organizations) would also be declared enemy combatants.'
The major also noted that such a definition of enemy combatant contradicted the military's own definition, which defined a combatant as 'an individual who was part of or supporting' the Taliban, al-Qaida or groups engaged in hostilities against the United States.
The military tribunal voted 2-1 to continue to detain Hamad, with the majority ruling that he was 'associated with al-Qaida.'
Four years after Hamad's arrest, Wax says, Hamad continues to wait, and continues to hope. Wax says he has been struck by Hamad's 'grace and dignity,' and optimism, during the times they've met at Guantánamo.
'He believes still today in America, in American justice,' Wax says. 'And it is almost incomprehensible to me for a person to (believe) that after being treated the way he's been treated for almost four years now.'
But when it came time for Wax to leave and he shook hands with Hamad to say goodbye, Wax says, Hamad would not let go of his hand.
'The hope that we represented was something he couldn't let go of, physically,' Wax says. 'That sticks with me inside. And it makes me sad.'
• • •
Early last week, before the Senate vote, Wax had said his best hope for his clients would be that Congress would uphold the long-accepted legal concept of habeas corpus - that a government must legally defend why it is imprisoning someone.
Wax said he hoped that 'enough people in Congress will recall that habeas corpus has been in the Anglo-American jurisprudence world for about 800 years, and is the oldest and best tool to keep executive power in check - whether the executive is a king or a president.'
It's a concept that most citizens of the United States understand, says Bruce Daily, an investigator in the Portland federal public defender's office. Which may be partly why, Daily says, the general reaction he gets from people who learn he's working on behalf of Guantánamo detainees is positive.
'I think there's just an innate recognition that, guilty or innocent, people deserve some kind of due process,' Daily says. 'It's just so ingrained in the American personality that even people who think that these people may be terrorists say, 'But yeah, let's put them on trial.' '
That won't happen soon now, of course.
'As the Supreme Court has said, habeas corpus is the most important historic check on excessive executive power,' Wax says. 'It is deeply disturbing that the administration and Congress have ignored the lessons of history and attempted to preclude any independent or judicial review of their actions.'
The constitutionality of the legislation that Congress passed and that President Bush will sign will be challenged, Wax says. But it could take a year or more for the Supreme Court to decide. And if the Supreme Court decides the current legislation is constititutional, the inmates at Guantánamo - including the seven represented by Wax's office - will remain in legal limbo, and in prison.
Says Wax: 'There they would sit indefinitely, in limbo, with no resources to any court. And eventually then, the world starts to forget.'
The below documents are summaries of the Combatant Status Review Tribunal and Administrative Review Board proceedings for Nazur Gul and Adel Hassan Hamad.
The Combatant Status Review Tribunal proceeding is the first military hearing that detainees get at Guantánamo to determine whether their classification as an and quot;enemy combatant and quot; is appropriate. Later, detainees get a second hearing, an Administrative Review Board proceeding, to determine whether they remain a danger to the United States.
Nazur Gul Combatant Status Review Tribunal:
Nazur Gul Administrative Review Board proceeding:
Adel Hassan Hamad Combatant Status Review Tribunal:
Adel Hassan Hamad Administrative Review Board proceeding: