Lawyer Andrew Cohen analyzes legal affairs for CBS News and CBSNews.com.
Having successfully pushed Congress last year to block the terror suspects at Guantanamo Bay, Cuba, from having access to the federal courts, the Justice Department this week movedto block the detainees from having important access to their attorneys. The Wall Street Journal's Law Blog has posted the proposed new rules here and they are remarkable not just because they seem so onerous, even in the context of Gitmo, but because they seem designed to try to shift the blame for the deplorable conditions at Gitmo from the guards to the lawyers.
In other words, the feds now argue, it is not the fact that the men have been locked up without charges for about five years and treated poorly by our government that is causing "intractable problems and threats to security at" Gitmo. It is not the fact that the military guards down there are permitted by law to do things to the detainees—the use of force, the deprivation of certain rights-- that would never be permitted in federal or state prisons. It is mail from attorney to client and visits from the former to the latter which are causing "unrest" on the base. That's like immediately blaming the doctor for the patient's illness when the medical expert arrives to make a house call.
According to the New York Times' William Glaberson, who broke the story Thursday, "the government would limit lawyers to three visits with an existing client at Guantánamo; there is now no limit. It would permit only a single visit with a detainee to have him authorize a lawyer to handle his case. And it would permit a team of intelligence officers and military lawyers not involved in a detainee's case to read mail sent to him by his lawyer." All of these new powers would significantly inhibit the ability of the lawyers to adequately (never mind well) defend these men.
Worse, under the guise of enhancing security, the new rules would deprive the attorneys of the right to see evidence the government has or intends to use in classifying the detainees as "enemy combatants." Imagine how easy convictions would be in our country if the prosecutor could choose which evidence to share with defense attorneys! In this way, the government is trying to accomplish what Congress was unwilling to permit when it passed the Military Commissions Act last year and what the Supreme Court twice has refused to do when Gitmo challenges have come before it—make an already uneven playing field all the more uneven in favor of the feds.
Now, these dire representations by the Justice Department might be more understandable if earlier, similar "sky is falling" representations by the Justice Department had proven to be true. But there is a long record now, post 9-11, of hyperbole being employed as policy on the part of our officials. We were told, for example, that the men at Gitmo were "killers" at Guantanamo Bay—Attorney General Alberto Gonzales himself used that word— only to find out (from the military's own investigations) that hundreds and hundreds of the men never took up arms against the United States or were otherwise involved with Al Qaeda (much less killed anyone we care about).
And so it is likely that the courts which ultimately will judge this request will do so with a great deal more skepticism now than they might have five years ago. The lawyers who represent the men down at Guantanamo Bay are doing so at great peril to their own professional reputations. They have gone to great lengths to do their jobs without jeopardizing security, national or otherwise. Their work is in the highest tradition of the legal profession and deserves protection from our government—no matter how embarrassing is the story they and their clients ultimately will tell.