(Seventh in a series arguing against the Graham Amendment/for the Bingaman Amendment regarding habeas corpus at Guantanamo Bay. If you agree, please call your senators, and ask them to vote for Jeff Bingaman's S. AMDT 2517 to bill S. 1042. Senator Graham's full floor speech is here.)
Having checked out the medical malpractice motions that Lindsey Graham referred to, and discovered that they were a lot more serious than he let on, I decided to investigate another of the motions he cites as examples of frivolous claims by detainees. I purposely picked the one that seemed the most frivolous to me, namely this:
"Here is another great one. There was an emergency motion seeking a court order requiring Gitmo to set aside its normal security policies and show detainees DVDs that are purported to be family videos."
What, I wondered, could possibly explain a motion like this? How could a prisoner's access to DVDs possibly be important? After a certain amount of wrestling with my brand new PACER account, I found the motion in question (pdf). And this is the story:
When the attorneys for these detainees first met with their clients, their clients did not trust them. And there was a good reason for this:
"Certain of the Detainees reported that the Government's tactics had included the use of interrogators who identified themselves as attorneys in order to gain the trust of the Detainees. This interrogation tactic, combined with the fact that the Detainees had each been repeatedly interrogated by the Government, caused the Detainees to question whether undersigned counsel are truly independent of the United States Government."
Well, yes: I can see how having interrogators pretend to be your lawyer would make you a bit suspicious when someone else showed up claiming to be your lawyer. How, exactly, would you tell the difference? The detainees hit on this method: they asked their lawyers to get videos showing that their families, or people they trusted, approved of these lawyers. The lawyers did so; the resulting DVDs contained less than seventeen minutes of material, combined. They also obtained a letter from someone trusted by one of the detainees, and some photographs of themselves with the detainees' family members. All of this was done by counsel with security clearances, on equipment they had brought with them from the US; in addition, the attorneys asked that the government copy the still photos, to remove any concerns about their pixels somehow encoding secret messages.
They then submitted these materials to the government, asking that they be cleared so that they could be shown to the detainees, and noting that they would be traveling to Guantanamo in twelve days. After various delays (my personal favorite being that the government claimed that no one in all of Washington DC was capable of clearing the videos, that therefore they had to be sent to Guantanamo for clearance, and that transporting them would take two weeks), the attorneys were sent a message informing them of two things:
(a) that the videos, etc. might not be cleared by the time they arrived, and
(b) that if, on that visit, the detainees did not agree to be represented by them, the detainees would forfeit their right to counsel.
In other words: the detainees, having been interrogated by people pretending to be lawyers, asked for proof that the attorneys assigned to represent them were who they said they were; the attorneys got this proof; and then the government both dragged its feet about clearing it and said that if the detainees didn't agree to be represented by these attorneys, with or without the proof, they would forfeit their right to counsel.
This is not, by any stretch of the imagination, the most egregious thing the government has done in its dealings with the detainees, or the most important motion that would be blocked were Graham's amendment to become law. (By deciding to investigate what looked like Graham's best case for a frivolous motion, I more or less ensured that it would not be.) But neither is it the sort of idiotic motion Graham describes: an emergency motion asking that detainees be allowed to see family videos. It's bound up with a right that really does matter: the right to be represented by counsel. The DVDs are not incidental to the question whether the detainees will have access to counsel; they are essential to it. And the reason they are essential is not because the detainees are being unreasonable or eccentric: they are responding in what strikes me as a perfectly reasonable way to a government interrogation tactic that might as well have been designed to interfere with their ability and willingness to exercise their right to counsel.