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Lawyers argue for more access to Guantanamo Bay detainees

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    NMU         D.C. CIRCUIT         Newsgathering         Dec 3, 2002    

Lawyers argue for more access to Guantanamo Bay detainees

  • The case of Guantanamo Bay’s inaccessible detainees was presented in federal appeals court Dec. 2, where their lawyers pushed for the “modest rights” of access to counsel and their families afforded by U.S. and international law.

In the latest attempt to access the U.S. government’s largely incommunicado detainees captured in its war on terrorism, attorneys urged a federal appeals court Dec. 2 to apply some letter of law — be it U.S. or international — to the “enemy combatants” of Guantanamo Bay.

The case was argued before the U.S. Court of Appeals in Washington, D.C. (D.C. Cir.) after being dismissed because of lack of jurisdiction by a district court in July.

The 90-minute hearing came several weeks after the government argued before the same federal appeals court to withhold information on detainees held in the United States that the district court ruled is available under the federal Freedom of Information Act.

Generally, access to detainees in the U.S. and at Guantanamo Bay, according to reporters, is practically non-existent.

Thomas B. Wilner and Joseph Margulies, the attorneys for the detainees, claim that their clients — 12 Kuwaitis, two Britons and two Australians — have been inaccessible to the outside world since December 2001 and that their detainment at the U.S. Naval Base at Cuba’s Guantanamo Bay is “utterly outside the law.”

About 625 detainees from 42 nations are held at Guantanamo Bay. All of the detainees are considered “enemy combatants” — a label that allows the U.S. government to hold them without charges and without access to counsel.

Although the suit was filed on behalf of a small portion of the detainees, the court’s decision may apply to all those held at the base, as there is no difference between the conditions of confinement of all the detainees.

The attorneys claim that the United States has applied legal processes to similar situations in every war of its history and questioned why, in the current situation, the government has not adhered to the Geneva Conventions or the federal Alien Tort Claims Act and the Constitution.

Under certain Geneva Conventions protocols, the detainees would have certain rights as either prisoners-of-war or civilians lawfully held. If the government continues to refuse to recognize the Geneva Conventions, Margulies said, the detainees may have rights against arbitrary detention under the Act and due process rights under the Constitution.

“If we’re challenging any administration policy, it’s to have the rule of law applied to them,” Wilner said. “This is the first time we’ve [the United States government] really sacrificed this rule of law and the question, I think, is: Why?”

The panel, comprised of judges Merrick A. Garland, A. Raymond Randolph and Stephen F. Williams, questioned the detainees’ attorneys on the question of jurisdiction under which U.S. District Judge Colleen Kollar-Kotelly dismissed the case in July.

Kollar-Kotelly classified the case as a writ for habeas corpus — a judicial mandate to determine whether or not a person is imprisoned lawfully — and then decided that the court did not have the jurisdiction to hear a habeas case regarding Guantanamo Bay. The naval base, she wrote in her order, is “nothing remotely akin to a territory” of the United States.

She added that case law did not apply to the detainees who were neither on American soil nor aimed to become citizens.

“The government has advanced the position that no court . . . can hear my clients,” said Margulies, who is a cooperating attorney with the New York-based Center for Constitutional Rights. “Guantanamo is unique because it appears to be [the only place in the world] where the U.S. exercises exclusive jurisdiction.”

Arguing on behalf of the U.S. government, deputy solicitor general Paul D. Clement said that the government’s two goals in detainment were to remove the enemy combatants from the battlefield for their safety and to use them for intelligence.

Clement said that the United States has held prisoners on military bases abroad in other wars under the same provisions. He said that thousands of people were detained in the ongoing conflict in Afghanistan, only some of whom are held at Guantanamo.

“The detainment itself includes no access to family and counsel,” said Clement of the government’s authority in the war on terrorism. “The authority to hold them is the authority to hold them under those conditions.”

The court is expected to rule in several months, Margulies said.

(Al Odah, Khaled A.F. v. United States; Counsel: Thomas B. Wilner, Shearman & Sterling, Washington, D.C.; Joseph Margulies: Margulies & Richman, Minneapolis, Minn.) AU

© 2002 The Reporters Committee for Freedom of the Press

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