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What United Methodists Should Know About Guantanamo

The Nebraska Messenger
January/February, 2007

I am a Methodist. I am also an assistant federal public defender in Des Moines, Iowa. I represent individuals charged with crimes in federal court who cannot afford to hire their own lawyer. Usually I represent people charged in Iowa, but in the summer of 2005 I volunteered to represent Guantanamo Bay detainees. I represent them as part of my job as a federal employee. To understand how that happened, you have to understand the Guantanamo cases.

After Sept. 11, 2001, when President Bush declared war on terrorism, he declared that the government could and would seize people from around the world that were "terrorists" and send them, regardless of the international laws, to a detention facility in Cuba. There, these men could and would be detained without legal process, without access to a lawyer, and without basic protections of the Geneva Convention.

The administration chose Guantanamo because the U.S. lease agreement with Cuba for the land basically made it a legal vacuum. Bush's legal advisors determined that no laws applied, so no laws had to be followed. The Guantanamo detainees could be treated however Bush's administration pleased. They could be tortured under standard definitions of torture, and they could remain there without a trial, or virtually forever.

The men began arriving in January of 2002. The condition of their detention and their treatment by our government was atrocious. I won't go into detail here, but a good summary can be found in Joseph Margulies's book, Guantanamo and the Abuse of Presidential Power (2006).

The detainees, through pro bono lawyers, started filing habeas petitions. In these petitions, the detainees asked for unremarkable relief. They asked for a trial in front of a neutral arbitrator and they asked for basic human rights protections. A group of men called "self petitioners" wrote the court and pleaded for the court to intervene on their behalf. The district court in Washington, D.C., interpreted these documents as requests for habeas corpus—a request for the court to review the legality of their detention by the United States government. Some were very simple, stating in elementary Arabic or Pashto (a language of southern Afghanistan) that the writer was innocent of wrong doing and wanted to go home. Some were more elaborate, citing the writ of habeas corpus and requesting the court to exercise jurisdiction.

The district court in the District of Columbia determined that the self-petitioners had directly or indirectly asked for legal counsel, so they appointed federal defenders to represent them. The federal defender office in Washington, D.C., could not take on every self-petitioner, so they opened it up to all the federal defenders across the country. Those defenders who wanted to represent detainees could get permission from their local courts and then be admitted to the District Columbia to represent the self-petitioners. I volunteered and initially received two clients. Later, I took on an additional two.

I went to Afghanistan in February of 2006 with four other U.S. lawyers. I went for one reason — to find my clients' families.

Reports and rumors had filtered in about the horrible abuses that detainees had suffered in Guantanamo. One of the tactics that interrogators at Guantanamo had used was to pretend to be defense attorneys. The interrogator would go in and interview a detainee and tell them he was there to defend him and to get him out of custody, in an attempt to gain the detainee's confidence.

Of course, these betrayals added an additional burden when real defense lawyers went to meet their clients for the first time. Not only was there a language barrier, a cultural barrier, an "I'm from the country that tortures you and I'm here to help you" barrier. There was now a "No, really, I'm a defense lawyer, unlike the last guy" barrier. So I decided I needed to meet family members. I wanted to find out as much as I could about my clients to try to make a connection with them when I met them for the first time.

We went to Afghanistan without an escort. We went without a guard. We went to a war-torn country in the midst of active conflict, against the advice of the State Department, on our personal travel documents, not government-issued. We went to try to find the family and friends of "the most dangerous, best-trained vicious killers on the face of the earth" (as the government claimed). And we were graciously received.

I was nervous. How could anyone not be? I was American. I was a woman. I had heard what our government had said about these people. I was looking for family and friends of alleged terrorists, alleged al-Qaeda members, alleged Taliban supporters.

I found them. And I liked them. You see, they weren't hostile about the fact that people from the United States had potentially tortured their loved ones. They didn't refuse to talk to me because I was a female lawyer (although some of the more religious ones were not comfortable shaking the hand of a female non-family member). They didn't resent what the United States had done to their country and to their families. They were glad to see us. They were hopeful that we would be able to help them. They wanted their sons, their fathers, their brothers to come home. They wanted to know that they would be okay. I realized that if anyone could understand the difference between a citizen's heart and her government's lack of one, it was the people of Afghanistan.

We met with many family members of detainees at a variety of different U.S. detention facilities. We stayed in Kabul, for safety's sake, and the family members came to us at the hotel. Halfway through my visit, I met with a man who thought he could locate my client's father. The father lived two days from Kabul, which required traveling through areas controlled by al-Qaeda and on roads that were frequently targeted by militants. He insisted on going back to get him. I wrote the father a note telling him why I was there and the man took it.

On my last day in Kabul, my client's father walked in the door of the hotel. He had one leg and one eye. He had spent a year's salary of borrowed money to come to see me. He told me about his son and about his arrest— at their home in the middle of the night. And he wanted me to try to bring his son home. I told him I would do my best.

My best ended up being much more of a struggle than I hoped it would be. I wasn't fighting it out in the courtroom. I wasn't filing manuscripts explaining my clients' innocence. I spent the next six months trying to get to Guantanamo to meet my clients for the first time.

The military base at Guantanamo is a classified facility. Everyone who goes there must have a security clearance. I applied for my security clearance in November 2005 when I first took on the cases. When I returned from Afghanistan in mid-February 2006, I still had not received my clearance. I received it in April, but I still could not go to Guantanamo.

Originally, the government had objected to lawyers visiting the detainees at the base. The Supreme Court in Rasul v. Bush allowed detainees to have lawyers, and so reluctantly the administration relented. The government insisted that each lawyer going down to Guantanamo sign a protective order, drafted by the government. I got my clearance, and moved to have the protective order entered, which meant that I agreed to follow its restrictive terms. Then, the government resisted my motion. It seemed absurd. It was a legal maneuver to challenge the jurisdiction of the court to enter the order. The district court stayed all proceedings and refused to enter the protective order pending a decision that was due from the Supreme Court. I moved to enter it again, telling the judge that I needed to have it entered so I could meet my client. No response.

In August, nine months after applying for my security clearance, the court entered the order. I could go to Cuba. My first trip was cancelled when I received the government's permission, but all flights were full. My second attempt was successful.

My Client

I met my client, Muhibullah, in early November, a year and a month after the court appointed me to represent him. When I arrived, he did not even know he had been appointed a lawyer. I spent four days in Guantanamo Bay. For two days I met and talked with Muhibullah. He liked me. He appreciated what I was trying to do, but he told me to go home. He told me I had "no idea" what I was getting myself into, that I was young and shouldn't risk my life and freedom to help him. He doubted I could help him, and he was concerned that I was risking my own freedom and security. We still talked and I didn't go home.

He told me the first time he saw an American was when he woke up in the American hospital in Afghanistan. He had been hit by a bomb from an airplane that had exploded at night by his house. He was knocked unconscious and severely injured. His father took him to the Americans asking for help, asking for them to help his dying son. They took him in, and then they sent him to Guantanamo. He doesn't know why. His father doesn't know why. I don't know why. The government's response to the question of "why" is "why don't you tell us why we arrested you?"

Muhibullah and my conversation about his arrest was necessarily short. Neither of us had an explanation, neither of us have been provided one by the government. He didn't want to talk about what had happened in the prison. He didn't want to talk about what the U.S. government had done to him and the men around him. He was afraid of the consequences. From my studies of the "interrogation" tactics that the government used in Guantanamo and other prisons, I parceled out what they had done. They starved them at first – giving them only an orange and seven beans once a day, and then punishing them if, in their hunger, they ate the orange peel. They made them feel like animals. They hurt them, they psychologically broke them. down. In an offhand comment, Muhibullah told me he doesn't even have the ability to taste food anymore. They make them wish they weren't alive – several have already attempted, some successfully, to commit suicide.

After I asked about what had happened to him again, he said he didn't want to talk about depressing things. So we talked about other things, about our differing cultures, about America, about how a woman in America could become a lawyer. His part of Afghanistan does not even have a printed newspaper, let alone standardized education. He came to Guantanamo completely illiterate. We talked about relationships, about his wife and newborn son that he hasn't seen for five years, and about how Americans get to choose who they marry, a concept he had never considered. We talked about his family. He wanted me to go visit his mother. The government had let me bring to him a photo of me and his father. He stared at it most of the time, remembering what his life was like..And we talked about the party he would throw me when he got back to Afghanistan; as if anyone in our country deserves a party for getting him out of a jail that defies international law and moral decency. It feels sometimes like I haven't done anything to help these men.

I never met three of my clients who have been released, and returned to Afghamistan. One was released in February while I was there, one in August and one in October. Meanwhile, the courts and Congress constantly change the laws, and the government's lawyers constantly throw up legal hurdles to getting our remaining clients fair trials. I know that Muhibullah sits there, thinking about the only American who has offered any hope. I know he hopes there is something I can do, something I can say, that will change someone's mind about imprisoning him indefinitely..I think about him, too. I wonder why he trusts me when I'm the only American he has met who has treated him like a human being. I wonder what his fatherless son thinks about America.

I wonder if his religion teaches him to forgive. I know that mine does, but I can't say if the roles were reversed I could forgive. I could pray that I would be able to forgive if I were in his shoes, but I don't. Instead, I pray that the torture stops. I pray that Americans are stronger and kinder than our government. I pray that we can go back to doing unto others as we would have them do unto us. I hope that my client prays for peace and the ability to forgive.

Date: 1/12/2007

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