In idle wishes fools supinely stay.
— George Crabbe, The Birth of Flattery (1792)
The stars are aligned. Guantanamo detainees and their prosecutors wish for the same thing – fewer lawyers. Attorney General Alberto Gonzales has gone to court to see if the judges will grant everyone’s wish.
For the Justice Department the wish makes sense. When there are as many detainees as there are in Guantanamo, it is not only aggravating but time consuming to have the detainees working with defense lawyers who do nothing but clutter up the system with meaningless procedural and substantive arguments. From the detainees’ points of view, visits by lawyers disrupt the pleasant routine they enjoy on a daily basis. The conjunction of prosecution and detainee wishes came about during late April and early May.
On April 27 the Justice Department said it planned to ask the U.S. Court of Appeals for the District of Columbia to do a number of things that would reduce the number of lawyers mucking about in Guantanamo. It wanted the court to rule that a detainee may only have one visit with a lawyer he is considering hiring to decide if the lawyer strikes his fancy. When the detainee has hired a lawyer, Mr. Gonzales wants permission to read all the correspondence the lawyer and the detainee exchange. The attorney general wants to deny the few lawyers who survive this gauntlet the right to see the secret evidence military panels use to convince themselves that a detainee is an enemy combatant and not someone who happened to be in the wrong place at the wrong time.
Mr. Gonzales also initially wanted to limit to three the number of conferences lawyer and client can have before a trial. But he withdrew that wish a few days before the May 15 hearing was to take place in the Court of Appeals, saying: “Based on a current evaluation of resources and needs at Guantanamo, the [government] has decided this provision is no longer warranted.”
The detainees knew nothing of the hearing that took place on May 15 since detainees are not permitted to know anything about anything since if they knew anything about anything they would use the information in furtherance of terrorist activities. Had they known, however, many of them would have supported Mr. Gonzales’s request. According to the New York Times, some of the detainees are now refusing to see their lawyers, others are declining to accept mail and still others when seeing their lawyers refuse to give them the kind of information the lawyers think they need in order to properly represent their clients. According to Mark Denbeaux, a lawyer representing two of the detainees, “Every lawyer is afraid every time they go down there, that their clients won’t see them.”
In fairness to the detainees, it should be observed that their reasons for not wanting to see lawyers differ ever so slightly from the reasons Mr. Gonzales doesn’t want them to see lawyers. Mr. Gonzales says that the lawyers visiting detainees cause “intractable problems and threats to security at Guantanamo.” Their presence “causes unrest on the base” since lawyers may tell their clients what is going on in the outside world and that kind of information can “incite violence among the detainees.”
The detainees, on the other hand, do not want to see lawyers because, as one detainee reportedly wrote his lawyer, “Your role is to polish Bush’s shoes and make the picture look good.” Some detainees believe that their lawyers are simply investigators for the government and that whatever they tell their lawyers may be used against them. As a result of these beliefs, up to a third of the detainees are refusing to see their lawyers, or, seeing them, refuse to impart information. One lawyer who represents 17 Yemini defendants was quoted in the New York Times as saying the relationship between lawyer and client is “very strained and tense.” Another lawyer said his clients said: “We all know that everything we say in these rooms is being monitored by them.” Detainees fear that their correspondence is not confidential, citing as one reason for their concern the seizure of more than 1,100 pounds of correspondence and legal material from detainees in 2005 after three suicides had taken place at Guantanamo.
If the court sides with Mr. Gonzales, everyone should be happy, except, of course, those who believe detainees are entitled to good and thorough legal representation. They don’t understand what Mr. Gonzales means when he says: “There is no right on the part of counsel to access to detained aliens on a secure military base in a foreign country.” They believe that if a person has a right to counsel the right must be meaningful and not defined by the prosecution. They do not realize that this is not 2007 – it is 1984.