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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