by hilzoy
(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.
Which makes one wonder just how the Senator came to construct the arguments he trotted out to push his amendment. They are evidently not based on the motions.
Graham's 'conclusions' about the supposedly frivolous nature of these motions is simply not borne out by the documents themselves.
Posted by: salò | November 13, 2005 at 01:43 PM
"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),"
I've updated me blog post again with a link to this.
Without disagreeing with anything else, I have to say that I think the above might be indicative of a deliberate run-around, or it might be quite reasonable.
How might it be reasonable? Because it doesn't seem impossible to me that a standard might be applied that says that the experts in what the Guantanamo prisoners might or might not be doiong to try to communicate with the outside world might be at Guantanamo, and that that's where operational control over what the prisoners do or do not see is, and that since they have the, perhaps, most appropriate expertise, as well as the responsibility, that it's reasonable policy that they be the ones to rule on what the prisoners do or do not get to see.
Now, that might or might not be what's going on there, and if it were some variant of that, such a hypothetical policy might or might not be wise or sensible.
But it doesn't seem at all unlikely to me that such a policy might have been implemented here, and that wouldn't strike me as particularly farcical or necessarily arbitrarily made up.
Oh, and on the two weeks shipping, well, Amazon always gives a date for when a package will arrive that is about two weeks more than is remotely reasonable or accurate; I assume that's so customer's will have far fewer grounds for complaint. This doesn't seem to be an unusual general policy in my experience.
But other than this point: right on!
Part of an inherent problem here is one that is general in politics: politicians have to struggle to find minimal time, even when inclined, to actually study policy issues on their own, and, frankly, their staff doesn't have much time, either (this is one reason I've always been dubious, at best, about term limits, although of late I've moved from firm opposition to being tempted by the idea in limited circumstances).
Posted by: Gary Farber | November 13, 2005 at 02:09 PM
GF, I don't think anyone thinks it's unreasonable for the DOD to look at the DVD before allowing the prisoner to see it. Or family snapshots. It's hardly frivolous, though, to ask for the court to help overcome DOD objections to even doing so. Especially after the DOD has created the situation that makes the DVD necessary.
What I find most stunning, though, is that DVD would take this position. By and large, the families are a positive influence on these prisoners. Cutting off all contact isn't just inhumane, it's counterproductive. Instead of the families presenting a positive picture of home life (and, at least implicitly, a negative picture of jihadi life) we have these guys talking to each other about how righteous, courageous, and pure they are.
But then I'm the kind of person who thinks we ought to have a Navy officer -- a Muslim chaplain -- talking through the Koran with these guys, instead of the system apparently preferred by DOD: having them talk to each other about what Islam requires.
I'd like to think that even CB would agree with me on this . . .
Posted by: CharleyCarp | November 13, 2005 at 03:37 PM
"It's hardly frivolous, though, to ask for the court to help overcome DOD objections to even doing so."
Possibly I was unclear when I wrote "But other than this point: right on!"
Posted by: Gary Farber | November 13, 2005 at 03:40 PM
GF, I don't think anyone thinks it's unreasonable for the DOD to look at the DVD before allowing the prisoner to see it. Or family snapshots. It's hardly frivolous, though, to ask for the court to help overcome DOD objections to even doing so. Especially after the DOD has created the situation that makes the DVD necessary
Is it just me, or wouldn't it behoove the DOD to create the illusion that they are quickly passing on information so interrogators could more easily sort out who may be communicating with the outside world and who might not be? How hard would it be to buy a DVD burner, make a copy and send the original to be played to them? Clearly, the messages going into Gitmo are not going to cause any ticking bomb scenarios.
It seems that this tactic, despite appearing to be due to possibly legitimate reasons, is simply to increase the uncooperativeness of the prisoners with their appointed counsel, thus allowing the government to stymie legal efforts as well as create an atmosphere within the camp that justifies the repressive tactics used by the jailers.
The other, even more disturbing scenario, is that the DOD and others feel that the lawyers who are representing detainees are likely potentially involved in any conspiracy with Al Queda and the detainees to plot mayhem, hence cannot trust them. Tinfoil-ish? I don't know
Posted by: liberal japonicus | November 13, 2005 at 05:42 PM
In theory, there are plausible rationales for the government's position concerning various issues. But overall, what has happened is a complete refusal by the executive to obey the law, and when the court's tell them that they have to, a sort of legal guerilla warfare to circumvent court rulings by endless procedural manuevering.
Hence, screw up the right to counsel by deceptively having interrogators pretend to be counsel, and obstructing in every way possible the ability of actual counsel to do anything.
Our government has decided to engage in lawless detention and torture -- pure and simple. And lie about it endlessly. And pretend that everyone killed in captivity allegedly deserved it because they are all terrorists anyway.
Except for those released as innocent years later. As for them, never mind.
The Bush administration is sick. People who support this behavior by them need their heads examined.
Posted by: dmbeaster | November 14, 2005 at 09:20 AM
I'd like to point out (I'm going backwards through these posts) that this says that Graham is a fool, not having his staff check out such things, or he's in on everything.
The idea that he honestly believes what he's saying implies that he's a fool. If you don't believe that, then the only conclusion is that he's evil.
Another GOP fraud balloon punctured.
Posted by: Barry | November 14, 2005 at 04:26 PM