The camp where civil rights vanish

Published May 1, 2007

First, Congress eliminated the right of habeas corpus for detainees at the U.S. detention camp at Guantanamo Bay, Cuba. Now, the Bush administration wants to curtail their access to lawyers who have been representing them. Most of these prisoners have been held for years without charge and have been declared enemy combatants under a hearing process that would not be considered fair even under the old Soviet rules. The 2006 Military Commissions Act stripped the detainees of habeas corpus rights, which would have allowed them to challenge their enemy combatant status and continued detention in a proper legal proceeding.

Instead, the law provides a crimped review by a federal appellate court. Appeals under this process are now under way before the U.S. Court of Appeals for the District of Columbia and the detainees will need to have contact with their lawyers to be well represented.

But this is apparently too much fairness and due process for the Bush administration to tolerate. It has asked the appeals court to approve a plan that would sharply limit the ability of attorneys to meet with their clients at Guantanamo, and to allow for the reading of privileged mail between an attorney and client. The Justice Department also wants to make it easier to prevent attorneys from reviewing classified evidence against their clients, even when the attorney has the proper security clearances.

The department's filing says that the attorneys enjoy no right to see their clients when these prisoners are held on foreign soil in a secured military base, and so whatever is granted to them is beyond what is constitutionally required. It is a chilling, but not a surprising assessment from a department that has consistently attempted to keep Guantanamo prisoners in a legal black hole.

The department wants to limit attorneys to three meetings with their existing clients and one meeting with a prospective client. The attorneys say that these limits would seriously undermine their ability to represent their clients. They say it is virtually impossible to convince these detainees in one meeting that they are really lawyers there to represent them rather than interrogate them.

The department claims that lawyers have caused security risks at the facility, but what is really driving this effort is a long-established pattern to interfere with the ability of Guantanamo detainees to receive a fair defense.

When Charles Stimson, the former Defense Department deputy assistant secretary for detainee affairs, said earlier this year that corporations should reconsider doing business with law firms that represent Guantanamo detainees, he was reflecting the general hostility of the administration toward these lawyers and their work.

Since this administration is intent on dismantling civil liberties, it is up to the Democratically controlled Congress to intervene. The Restoring the Constitution Act of 2007 would return the rule of law to our treatment of the Guantanamo detainees by resurrecting their right to habeas corpus and access to U.S. courts. The right to access counsel should flow from this as well.

The Justice Department has lost its way, and it seems that only a strong act of leadership by Congress can set it right.