Attorney defends Gitmo inmates New law prohibits habeas corpus claims
By ANNMARIE TIMMINS, Concord Monitor, 22 october 2006
For the last two years, attorney Rob Kirsch of Concord has represented six men being detained without charges at Guantanamo Bay. He’s visited the men eight times, each trip taking five to seven days. Like the other 450 lawyers representing detainees, Kirsch gets paid nothing.
Winning the men’s freedom is one goal. But Kirsch also believes he’s defending America.
« Our principles as a people governed by a rule of law and who protect liberty . . . is being totally sacrificed, » said Kirsch of the government’s refusal to tell the detainees why they are being held or allow them to challenge their detention in court. « We are allowing ourselves, in a moment of fear, to drop to the same level of the people we would most despise and want least to be associated with. »
Last week, President Bush signed legislation that among other things, prohibits detainees from pursuing the claim of habeas corpus – the right of prisoners to have their detentions reviewed by the courts. It’s an ancient right, one afforded to prisoners in the state’s and nation’s prisons.
Kirsch, who practices with the Boston law firm WilmerHale, doesn’t doubt there are some Guantanamo Bay detainees who deserve to be held. But he’s become convinced his six clients are not among them. Their stories, including their abusive treatment in prison, were included in a study released in July by the Center for Constitutional Rights. In helping with the investigation for that report, Kirsch said he learned that the accusations against the men stemmed from an allegation started by the ex-wife of one of them. Her brother-in-law made the allegation from his own jail cell, where he was being held for a petty crime, Kirsch said.
The six men, all born in Algeria, were living and working in Bosnia at the time of the Sept. 11 attacks. All were married and most worked for charities. One was a teacher, another a trader. Some knew one another through their charity work, but some of the six didn’t meet until they were imprisoned, Kirsch said.
In October 2001, the American embassy in Sarajevo, Bosnia, delivered a cryptic note to the Bosnian government asking that the six men be arrested for allegedly planning an attack on the American embassy. Even though some of the men were strangers to one another, they were being accused of joining forces to attack the embassy. The Bosnian government resisted arresting the men but eventually agreed to take the men into custody after pressure from the U.S. government, Kirsch said.
The Bosnian authorities conducted a thorough investigation – searching the men’s homes, interviewing their employers and checking financial and phone records. They found no evidence of wrongdoing, and 90 days after the men had been arrested, the Bosnian courts ordered all six men freed.
The allegations were ultimately dismissed – but the men were never freed.
As the six were released from the Bosnian jail late on the night of Jan. 18, 2002, they were handed over to U.S. forces, according to Kirsch. They were taken to Guantanamo Bay, Cuba, and they’ve been there since. Kirsch believes that is because the U.S. government had made the men’s initial arrest in October 2001 – a month after the terrorist attacks on Sept. 11 – very high profile. It could not then afford to lose face by simply releasing the men and admitting they’d been wrongly charged.
Kirsch considers that reaction far more troubling than the men’s initial arrest. « We were afraid (in 2001), and we were worried about another attack, » Kirsch said. « We knew our intelligence was not at a level we wanted it to be, and we thought, ‘Better safe than sorry.’ » But how long does it have to take before you realize you made a mistake and did the wrong thing? »
Nearly five years and counting for Kirsch’s clients, he said. And they, like most of the nearly 800 people detained at Guantanamo Bay, have not been told why they are being held. For Americans wanting to know what they can do, Kirsch suggests contacting elected officials in Washington.
Kirsch’s response has been to represent the six men since 2004. Since that time, he has tried to win his clients the right to have their detentions reviewed by an American court, the habeas corpus hearings recently prohibited. « All these men need is a shot at habeas corpus, » he said. « The government won’t let them go to a court for a habeas corpus hearing because (the government has no evidence and) it would be a national embarrassment. They’d let them go instead. »
The U.S. Supreme Court has already weighed in on the habeas corpus issue with a 2004 ruling that forbid the Bush administration from locking up anyone without giving him a right to the court review. The Bush administration responded by creating review boards (outside the courts) that allowed hearsay evidence – which is barred from American criminal courts – and testimony gained through torture. The burden of proof was also shifted – off the government, onto the accused, who still was not told what he had been charged with.
Kirsch obtained recordings of some of those review hearings. « No objective observer can listen to these tapes and not get the sense that this was . . . a kangaroo court, » he said. The reviews were cursory and done very quickly, he said.
The legislation signed last week protects detainees from blatant abuse during questioning. Still, it has been widely criticized by various groups, partly because it again bars the court review of any detentions. The American Civil Liberties Union called the new law « one of the worst civil liberties measures ever enacted in American history. »
Others have said the conditions at Guantanamo Bay are likely to make terrorists out of the detainees if they aren’t already because they’ll leave full of hate for America.
Kirsch agrees and believes the law will be challenged. But that takes time. Meanwhile, his clients remain in difficult conditions, he said.
The report released this summer said one of the men had been held for 17 months in a room with fluorescent lights on 24 hours a day. He can’t focus now without seeing spots. Two others were isolated for 14 months. One was deprived of sleep for 13 days. Others were beaten, the report said.
Kirsch believes the men will ultimately be released. But at what cost, he asks. To them. And to America.
« The most important thing for people to understand is that our self-perception as a people who work under the rule of law is disappearing, » he said. « The men ask, ‘Why is America doing to this to me?’ It is the most difficult question we get asked. »