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Guantanamo's logistical obstacles frustrate defense counsel and thwart due process


by Suzanne Lachelier
October 19, 2008

The ruling against the defense motion for resources highlights, once again, the obstacles defense counsel face in assisting their clients, whether as full-fledged or as stand-by counsel. It also underscores the illusory nature of the right to proceed pro se, which the Congress explicitly codified in the 2006 Military Commissions Act.

The obstacles that the defense's motions, and the Commission's adverse ruling, emphasize are greater, and more fundamental, than the absence of internet access for pro se accused. The commission ruling appears to assume that defense counsel and detainees have direct means of communicating with each other between Guantanamo and the U.S. They do not, and any direct communication requires defense counsel to travel to Guantanamo. So, for example, if an accused needs a particular document or case he wishes to cite, he would have to communicate a request for that document via a letter to his defense counsel. That letter would have to be given to the attorney for the Joint Task Force-Guantanamo, who then delivers it to whichever defense counsel is soonest in Guantanamo to receive it. Defense counsel would then have to scan the letter (which is presumed to be classified at the "TS" top secret level) in a SCIF on Guantanamo, using only electronic equipment designed to handle classified material. The letter would then be placed on a secured network, for receipt in a SCIF in Washington, where the accused's attorney could read it. Contrary to the Military Judge's assertion in his ruling, JTF does not allow electronic media (such as thumb drives or disks) to be brought in to the detention camps - so it would be impossible for defense counsel to provide detainees with necessary legal documents in electronic format.

A secured phone line for the accused and counsel, which exists already for counsel representing detainees in habeas proceedings, would solve some of the problems described above in that an accused's request for information could be expedited - providing him with a document, however, would still entail travel to Guantanamo. The solution does not lie in assigning counsel to Guantanamo though. Relocating counsel would only make clients slightly more accessible: meetings are restricted to two times per day during business hours, and only three "high value" detainees can meet with their counsel at any one time (there are around 16 high value detainees represented on Guantanamo). Relocation of counsel would, without a doubt, aggravate the difficulties of getting work done. Computers available in Guantanamo are so slow, it is virtually impossible to do internet-based legal research; the classified computers are even slower (and only available during business hours), nearly barring the ability to prepare motions on them. Perhaps more critically, translators are not available on Guantanamo to the defense; they travel, like defense counsel, from various parts of the U.S., and the defense must request their services in advance - so there is no possibility of "hopping over" to the detention facility to visit with a client.

The logistical obstacles prevent defense counsel from serving as the conduit for legal information that the judge's rulings appear to contemplate. As outlined, these obstacles are mind-numbing, and far-removed from the provision of actual legal services; indeed, the first "motions" hearing in the 9/11 cases, held in September, only managed to get to addressing these administrative obstacles, and no substantive legal issues in the case. But that appears to be the point: label the commission proceedings "fair" and "virtually the same as courts-martial" in the media, while bogging down the defense in logistical minutiae that effectively thwart actual due process."

Commander Suzanne Lachelier, JAGC, US Navy, is detailed counsel for Ramzi Binalshibh.

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