Held in Contempt – Financial Times – by Isabel Hilton – PDF

2004 Held in Contempt

The preliminary hearings opened earlier this week in the first US military tribunals since the second world war, held in a spe­cially constructed courtroom in Guantanamo Bay, Cuba. More than 700 men have been imprisoned in Guantanamo since the camp opened for business in early 2002. The four defendants in this week’s proceedings are the only ones yet to be charged. They have the distinction of fac­ing legal proceedings so controversial that many eminent American and international jurists consider them a stain on US justice. If the US administration’s will prevails, they will benefit from none of the safe­guards that are considered essential to a fair trial in US courts. They will have no right of appeal against any verdict to an independent tribunal and, even if they are found not guilty, may still face indefinite detention.

The one asset the four defendants do enjoy is the determination of a group of defense lawyers who have fought for more than two years to force the secret proceed­ings in Guantanamo into the open. If it were not for those lawyers, and the notable vic­tory they won in the US Supreme Court in June, the defendants in Guantanamo this week would have no recourse to any hear­ings beyond the restrictive military tri­bunals they now face. The eventual outcome of that legal victory is far from clear and the US administration already appears to be doing its best to circumvent it. But the fact that it exists at all is remarkable, for when this long fight for justice began, the lawyers found themselves all but alone.

Last month, some 70 lawyers – an eclectic mix of radical campaigners, human rights activists and members of well-heeled, high-profile firms – gathered in New York to dis­cuss strategy in the wake of the US Supreme Court’s historic finding in the case of Rasul et al v. George W. Bush – that prisoners in Guantanamo did have the right, despite the president’s will, to challenge their detention in US courts. That decision, handed down on June 28 by a majority of six to three, had changed what two years ago had been a dis­couragingly hopeless cause into one full of legal possibility. At the core of the meeting was a group that had once been seen as a handful of legal pariahs. Now they were beginning to look like a coalition that smart lawyers want to join.

The man who had called them together, British lawyer Clive Stafford Smith, has had a long training in heavy odds and unpopu­lar causes. Stafford Smith is a tall, rangy man in his late 40s whose close-cropped hair is beginning to grey. He has devoted the past 20 years to fighting death penalty cases in the American south. More than 900 men have been executed in the US since 1984, the year that he began. Five of them were his clients. Without his vigorous advocacy, the nearly 300 prisoners he has represented in the past two decades would, in all likeli­hood, also be dead. Sixty per cent of them were eventually found not guilty.

It is not the sort of work that makes you popular or rich. Stafford Smith’s New Orleans organization, Justice in Exile, pays all its lawyers the same salary – $25,000 a year, recently raised from $18,000. But repeated death penalty cases have devel­oped in him two qualities that are useful when fighting an unpromising cause: a con­viction that most death penalty cases are fueled by hatred as much as by evidence, and a belief that every defendant, no matter how unpopular or unlikeable, deserves a fair hearing. He got involved, he says, because Guantanamo made him angry. “Death penalty work is essentially standing between those who hate and those who are hated,” he explains. “But at least there are people who oppose the death penalty. This, nobody opposed.” The Guantanamo prison­ers were in a legal black hole.

There have been detentions in Guanta­namo before: the US leased the 45 square miles of land from Cuba in 1903. The lease recognized Cuba’s continuing sovereignty over the base, but gave the US “complete jurisdiction and control”. Since the Cuban revolution in 1959, Fidel Castro’s govern­ment has wanted the base back and has refused to accept rental payments, but the lease can only be terminated by mutual agreement – and the US will not agree. In the early 1990s the US government began to divert Haitian refugees to Guantanamo Bay. There they were tested for HIV and those found positive were detained until, on June 8, 1993, a US district court judge, in an excoriating judgment, declared the detentions unlawful.

In 2001, the Bush administration found a new use for the base as a warehousing facil­ity for prisoners taken in the “global war on terror”. When the Taliban fled Kabul in November 2001, the US dropped leaflets in Afghanistan offering a bounty for captured Taliban and al-Qaeda fighters. Thousands of men were sold to US troops by Northern Alliance forces. Others were detained in Pakistan, and more still were seized as far afield as Bosnia and Gambia.

In January 2002, the first prisoners were flown to Guantanamo. David Hicks, an Australian captured in 2001 in Afghanistan, allegedly fighting for the Taliban, was among them. It was the end of a strange trajectory for this small-town boy from a modest family, who had allegedly joined the Kosovo Liberation Army in 1999 and then, later that year in Pakistan, Laskar-e-Taiba, a militant organization fighting in Kashmir. In 2001, the US government claims, he attended an al-Qaeda training camp in Afghanistan. Now, like the others, he found himself in a prison that the US administration had deemed was beyond the law.

Under the Geneva Conventions, captured prisoners are entitled to a hearing to deter­mine their status. If they are civilians, they should be brought before a legal authority. If they are prisoners of war, they may be detained but are not obliged to answer questions. But these men were designated “enemy combatants” and detained for pro­longed interrogation.

In a memo dated January 25, 2002, the counsel to the president, Alberto Gonzales, advised Bush that he had the authority to disregard the Geneva Conventions and that doing so “substantially reduces the threat of domestic criminal prosecution [of administration officials] under the War Crimes Act” for such crimes as “inhuman treatment” and “outrages upon personal dignity”. By ruling that the Geneva Con­ventions did not apply, Bush opened the door to interrogation methods that would be banned by domestic and international law. And if Guantanamo was indeed beyond the law, the men could, in theory, be held there forever.

“Guantanamo was an experiment in two things,” says Richard Bourke, a young Australian lawyer who works with Stafford Smith. “In interrogation tech­niques, and in how far you could go before people began to object. In 2002, nobody was objecting.” For Bourke, the campaign on their behalf was also a les­son in how to take action. In early 2002, Bourke had just moved to New Orleans to work for Justice in Exile. “One morning I was reading the newspapers and moan­ing about how awful Guantanamo was, I read an article that named Stephen Kenny as the lawyer for David Hicks. Clive just said, “Why don’t we do some­thing? Can you get hold of that guy?” Bourke and Stafford Smith began to work the phones. “We had no idea at the begin­ning,” says Stafford Smith, “how compli­cated it was.”

They called, among others, the Centre for Constitutional Rights in New York (CCR), a legal NGO whose president, Michael Rat­ner, had litigated on behalf of the Haitians detained in Guantanamo in the early 1990s; Joe Margulies. a Minneapolis lawyer who also specialized in death penalty work; and two British solicitors, Gareth Peirce and Louise Christian, who were acting on behalf of British detainees. They had the begin­nings of a coalition. Michael Ratner had also called Stephen Kenny. A genial Aus­tralian lawyer in his 50s, Kenny had read about David Hicks in the newspapers. “He was the first detainee to be sent to Guanta­namo and all that I read about him was that he was supposed to have said that he wanted to kill Americans,” he says. “The Australian government was saying that he was among the 10 most dangerous men in the world. I noticed that the family weren’t saying anything. I knew that they wouldn’t know what to do.” Kenny contacted them and asked if they wanted a lawyer. “They said they didn’t have any money.” He grins. “I told them that I had figured that might be the case.”

In Adelaide, Kenny began to read up on international law and the Geneva Conven­tion. “I needed a writ of habeas corpus against Bush [requiring a prisoner to be brought to court to determine whether their detention is lawful] and for that I needed a US law firm. Everyone I called turned me down. They thought I was bonkers. Perhaps it was pretty mad in January 2002 to be talk­ing of suing the president on behalf of the ter­rorists. Then I got an e-mail from Michael Ratner at the Centre for Constitutional Rights, and Clive Stafford Smith and Richard Bourke got in touch.”

CCR operates from an office in lower Manhattan, a few blocks from the World Trade Center. On September 11, 2001, the deputy legal director, Barbara Olshansky, arrived at the office just as the first plane hit the north tower. “We all went upstairs and we watched the second plane go in,” she says. “People were walking past here, getting away from the scene. We just took our water coolers down to the street and handed out water to people going by until 7pm that night. I lost a cousin and a good friend in 9/11. Other people here also lost friends.” In the days that followed, the center began to take calls from people anxious about relatives who had been swept up in the mass detentions throughout the US that followed 9/11. Up to 3,000 people had disappeared. Their families had no idea where they were or why they had been arrested. CCR took up the cases.

“We knew it wouldn’t make us popular,” says Olshansky, “but I had no idea how angry and malicious people could be. There were awful messages left on my phone, terri­ble e-mails. And we worried about whether we were really hurting people by taking cases.” It was over Guantanamo Bay, though, that the staff, traumatized as the rest of the city had been by September 11, had the tensest discussions. “I asked myself all the time, what if I’m wrong?” says Olshansky. “What if these are all terrible people? But in the end we said it was too horrible. You can’t just watch while civilization and morality are abandoned. We had to do something.”

The first case, a habeas corpus writ, was filed on behalf of David Hicks and the British detainees Shafiq Rasul and Asif Iqbal in Feb­ruary 2002 before Judge Colleen Kollar-Kotelly in the Federal District Court in Washington. The detainees were chosen because they were the only men on whom the lawyers had details. Another detainee, Mamdouh Habib, an Egyptian-born Australian, was added later. “He’d been sent to Egypt to be tortured for six months, so we just didn’t know about him,” says Kenny. “The US government had notified the British and the Australian government of their pris­oners,” says Stafford Smith, “so they were the names we knew. It was the first time in my life I had filed a case for a client I couldn’t even talk to. But they were relatively easy: they spoke English and we had contacts in the countries they came from.”

It was the only aspect of the cases that was easy. “We knocked on everybody’s door,” says Olshansky, “looking for support, for money, anything. We got answers that ranged from polite to impolite refusals. It was a radioactive issue.” They were not surprised to be rebuffed by major law firms, but even the human rights NGOs turned them down. “Everyone was worried about the impact on donors and on funding. Nobody would help.”

Then there were procedural problems. “None of us was licensed to practice in Washington,” says Stafford Smith. “And we needed a licensed lawyer to sign the papers to file in a Washington court. Nobody wanted to. Eventually we found a coura­geous criminal lawyer who agreed to do it if we didn’t expect him to do anything else. Then the court insisted that the client was supposed to pay the filing fee, unless he filed an affidavit saying he had no money. We couldn’t get to the clients to get an affidavit.” Stafford Smith paid the fee.

The hearing did not go well. They lost in the Washington trial court and again in the appeals court. But by then another significant player had come on board. In April 2002, the families of a group of Kuwaiti detainees who had disappeared in Pakistan in 2001 were trying to find a lawyer. Two prominent American lawyers had turned them down, but eventually they reached Tom Wilner, a partner in the major Wall Street firm, Shearman & Sterling. Wilner took the case. He flew to Kuwait to meet the families and while he was there the US government notified the Kuwaiti govern­ment that eight of the men were in Guan­tanamo. The Red Cross later notified them of another four. The men, Wilner says, reg­ularly traveled to Muslim countries to do charity work. In 2001 they had chosen Pak­istan. They had been sold for bounty from a tribesman’s house, in the North-West Frontier Province, he tells me, and stripped naked, shaved and sent to Guantanamo.

It was Wilner’s turn to receive hate mail. “To be honest,” he says, “I hadn’t hesitated about taking the case. I didn’t see it as a big issue. I just thought, this is what lawyers do – they stand up for the rule of law. And if you sacrifice that, you give up on civilization. I was really surprised by the controversy.” The decision, though, was highly controver­sial in the Bar, which created tensions in Shearman & Sterling, though the firm stood by him. “The firm is based in New York and people were understandably afraid. Lawyers somehow felt that the rules had changed,” Wither says. “When the first prisoners went to Guantanamo, the tendency was to trust the government. The government said they were all terrorists. I think people were afraid that lawyers would interfere with the gov­ernment’s fight against terrorism.”

On May 1, Wilner filed a petition for basic due process – access to a lawyer, family vis­its and an independent tribunal. “We based it on civil law and habeas corpus,” he says, “but we weren’t saying let them out. It was much milder than that.” Despite his relative restraint, the hate mail was coming in at the rate of 100 messages a day. Wilner was also looking around for allies and called Stafford Smith and the CCR. “I guess they were pleased to hear from us,” he says. “It wasn’t bad to have a prestigious firm on side.” In December 2002 the group met in Georgetown for a brainstorming ses­sion. By this time it was some 20 strong.

The administration had also been developing its strategy. The lawyers believe that a primary purpose of Guantanamo was to act as an intelligence bank and a source of potential double agents. Prisoners are reg­ularly interrogated in a row of Portakabins erected in Camp Delta, the more permanent camp built to replace the initial facility, Camp X-Ray. Prisoners wait for their interrogations in permanently floodlit wire mesh cells. But there was another aspect to the prison. Under Military Order No. 1, issued on November 13 2001, Bush had given himself the right to detain any non-US citizen anywhere in the world for as long as he chose. He also set up a system of military tribunals to try alleged terrorists. The tribunals would operate under rules determined by the president: hearings would be held in secret with no safeguards or rules of evidence, before military judges who could sentence prisoners to death by majority vote. No appeal to an independent tribunal would be allowed.

In a concession to the system’s critics, five military lawyers were assigned to the defense. In August 2003, Bush, who said of the detainees, “The only thing I know for certain is that these are bad people,” nominated six men for trial. David Hicks, the Australian, and two British men, Moazzam Begg and Feroz Abbasi were among them. “There was a huge row when they designated the British detainees,” says Stafford Smith. “If we said the tribunals were Stalin­ist show trials nobody would pay any atten­tion, but now we had senior British judges saying that kind of thing.” Lord Steyn, one of Britain’s most senior judges, called Guan­tanamo a “monstrous failure of justice.”

In early November last year, the military authorities in Guantanamo rehearsed the future proceedings in a mock trial, with members of the military police playing defendants. Back in December 2002, though, the five military lawyers, four men and a woman, had a potential function but, as yet, no clients. They had, however, learned something of the system under which they would be called upon to mount a defense of their future clients and nothing they had encountered had led them to believe that a fair trial would be possible. But, as serving officers, they were subject to military rules and discipline and when they agreed to attend the Georgetown brainstorming meet­ing, both sides were aware that, at the very least, a culture clash was likely.

Philip Sundel is a naval officer who had volunteered for the job and joined the office of the military commissions, the body set up by the Bush administration to handle the planned tribunals, when it was created in March 2003.

“I remember them coming in,” says Olshansky. “All short haircuts, uniforms and medals. We were seen as a fringe-left group. But then we found out that they did believe in the legal principles and they were also horrified by what was happening.”

The military lawyers, too, saw the advan­tages of co-operation. “It was evident that Clive could help us get the things we needed. He had experience in capital cases and knew how to get resources that I didn’t know how to find,” says Sundel. There was, though, a long road ahead. “We still had no private support – no law firms backing us,” says Olshansky. “It was very helpful to be able to invoke the military. Against us were some really big name lawyers who were taking the position that torture could be justified and that the Geneva Conventions were somehow old fashioned.”

For the wider public, the rights of the Guantanamo detainees remained a deeply unpopular cause. Administration officials continued to argue both that the men held there were among the most dangerous in the world and that they were a rich source of intelligence for the war on terror – a contention, defense lawyers argue, since challenged by several US intelligence officers. It was not until the first detainees were released in January this year – and were found to include two young boys and one very old man – that cracks began to appear in the administration’s argument.

By April this year, 146 detainees had been returned to their native countries, including Sweden, Spain, Prince, Pakistan and the UK. More than 80 percent of them, once back home, were released without charge. They include an Afghan taxi driver and his passenger, several Afghan truck drivers, two teenaged Afghan boys, civilians of various nationalities who say they were engaged in aid work, and an Afghan shepherd.

Several former detainees, including two of the British men, told disturbing stories of physical and psychological abuse. One in five of the remaining detainees, according to the US Department of Defense, is being med­icated for chronic depression, and attempted suicide was admitted to be common. (The Department of Defense recently reclassified attempted suicide as “manipulative self-harming behavior.”) The released men’s testimony to the harshness of the regime, however, had little impact on an American public still inclined, at that point, to trust their president. The lawyers pieced together a picture of coercive interrogation in which cooperation and confession was rewarded with basic comforts and non-cooperation was severely punished. One frequently used punishment was a visit from the “Extreme Reaction Force” (ERF) – a practice that became known among the lawyers as “Erfing.” Released detainees have described the ERF as a seven-man squad, one of whom carries a plexiglass shield, who are called in when a prisoner refuses to obey an order. This happens, according to Department of Defense officials, on an average of three times a week.

Evidence of the brutality of “Erfing” came from Sean Baker, a member of a military police unit who was assigned to duty in Guantanamo. In January 2003, he volun­teered to play the part of an uncooperative prisoner for an ERF training exercise. He wore an orange jumpsuit and the squad was unaware that he was not a detainee. The beating only stopped, he says, when his jumpsuit was torn open and his military uni­form beneath revealed, by which time he had suffered brain damage and is now subject to seizures. Baker has sought legal advice.

For the lawyers, defeat in the appeals court in Washington was discouraging. “We were just losing everything,” says Stafford Smith. Their next step would be to petition the Supreme Court but there was no guar­antee that the case would be taken. If the court declined, the Guantanamo coalition would be at a legal dead-end and the prison­ers would face indefinite detention, with or without military tribunals.

The tribunals were increasingly alarming to the military lawyers. “They lack all the essential ingredients that you need for a fair trial,” according to Lt Cdr Charlie Swift, the military lawyer assigned to the defense of a 34-year-old Yemeni, Salim Ahmed Hamdan. In a conversation earlier this year, Swift listed the tribunal’s defi­ciencies with a fluency born of repetition: it is not independent or impartial and there is no impartial review. The two sides are not equal since prosecution assets outweigh defense assets by three or four to one. “There are 20 prosecutors and only five defenders,” he said. “They can put any number of people on to my case.” The “appointing authority,” he complained, functions as both the judge and the prose­cutor and “decides who is going to be charged, what the charges are, who is on the jury, what resources and discovery the defense gets, and then he rules on the legal­ity of his own decisions.”

When Swift finally met Hamdan in Guan­tanamo earlier this year, he was surprised by what he found. “I was expecting a battle-hardened terrorist,” he said. “When I met him, I thought, ‘Is this the worst they have here?'” His client, he discovered, was a courteous family men who, despite his experi­ences, appeared to feel no animus towards his American military lawyer. Hamdan, says Swift, like many Yemenis, went abroad looking for work. He found it driving agri­cultural workers on Osama bin Laden’s estate near Kandahar in Afghanistan in 1995, and eventually graduated to driving Osama’s family.

When the war began in 2001, he tried to go home with his pregnant wife and child but was captured and turned over to US forces. Now he is in solitary confinement, awaiting trial. For the first 70 days there, his only reading material was the Koran. After Swift protested, he was given another book – on congenital deformities in the Middle East. Swift had always felt it his duty as a lawyer to give Hamdan a zealous defense: after meeting his client, he told me, this became a personal commitment.

On April 7, 2004, Swift filed a habeas cor­pus suit in Seattle in which he challenged the constitutionality of the system of mili­tary detentions. But after he had filed, the Supreme Court agreed to review the earlier judgments in Washington. Swift’s case was put back, to await the Supreme Court’s verdict. With the promise of attention in the Supreme Court, the coalition returned to the challenge of mobilizing support. This time, things went better. “A lot of it was the passage of time,” says Margulies. “We had to lose in the lower courts. It was above their pay grade to cast doubt on the entire strategy of the war on terror. We needed a big court, the passage of time, a confluence of events and the accumulation of evidence that the executive was over-reaching itself.

The oral arguments were heard on April 20. Ted Olsen, the US solicitor general who lost his wife in 9/11, argued for the government. A week later, on April 28, CBS broadcast the notorious photographs of the Abu Ghraib prison. “I woke up and saw the Abu Ghraib photographs and I knew it was the best hope for the people in Guanta­namo,” says Stafford Smith. “There was a real shift in public opinion. After all, we weren’t saying these people were innocent but we were saying you shouldn’t sodomize them. It’s a bit grim to be pleased by Abu Ghraib but I am sure it helped.”

The current Supreme Court is known as one of the most conservative for many years. Yet when the judgment came, on June 28, it was seen as both a dramatic rebuke to the administration and a reassertion of the court’s independence. A state of war, the court said, “is not a blank check for the president”. The administration’s strategy was in disarray. The Pentagon moved swiftly into damage control mode. The day after the Supreme Court decision, it announced the appointment of the officers who would sit in judgment on the prisoners: four unidentified military officers will be presided over by a retired army colonel and military judge advocate, Peter Brownback III. The first cases were heard on Tuesday. (For the defense counsel, this was altogether too soon.)

The Pentagon also announced that there would be a separate review of all the detentions at administrative hearings, for which each prisoner would be assigned a personal representative – a military officer who is not a lawyer – and an interpreter to plead before a three-member “Combatant Status Review Tribunal”. It was positive in public relations terms, but the defense lawyers doubted whether, after more than two years of detention, the prisoners would be in a condition to argue their case before a military board that they had every reason to mistrust and in which all forms of evidence, including from anonymous witnesses and coerced testimony, would be admissable. “These people might well be incompetent to proceed,” said one lawyer, “but some of them will be desperate to get any hearing at all and may well go ahead with it.” Those hearings began on July 30. The same day, a San Francisco federal judge ordered the government to explain its detention of a Libyan prisoner in Guantanamo. So far every one of the first 14 cases reviewed has been affirmed as an enemy combatant.

On July 7, nine more detainees had been designated eligible for military trials, bringing the total to 15. Only the four who faced preliminary hearings this week have been charged or assigned military defenders. Of the five military defense lawyers, two are assigned to one prisoner. None remains available, as of now, for other prisoners and one of the existing five, Phil Sundel, is due to leave the navy, having been passed over twice for promotion, and will no longer work on the case once he has left.

For the defense coalition, the Supreme Court victory was a stunning vindication but it still left the lawyers facing a long legal battle and their clients were still in detention. “The Supreme Court opened the door,” one lawyer observed, “but there’s no map of how to proceed.” On July 2 they filed lawsuits again in Washington, arguing that the detentions were unconstitutional. To date, 13 petitions have been filed in the federal district court on behalf of 71 detainees. But on July 30, the Justice Department argued that the prisoners had no constitutional rights and there was no obligation to allow them access to their lawyers. The defense lawyers now fear that the administration will try to use the decisions of the combatant status review tribunals to resist the habeas corpus petitions in the federal court. “It’s as though the Supreme Court decision never happened,” says Wilner.

The lawyers’ attempts to see their clients have taken on a Kafkaesque tinge. The only civilian lawyer who has been permitted to visit Guantanamo is Stephen Kenny, who was allowed to go after the Australian government vouched for him. The government agreed to allow access to others, provided that they were US citizens and had been given security clearance, a process that the Department of Defense promised would take only two weeks. For some of the lawyers, it has already lasted 10 months. The authorities continue to insist that legal conversations with the client must be monitored. The prisoners, they say, might be in possession of US “top secret” information that the lawyers have not been cleared to hear. “Leaving aside the mystery of how foreign nationals who had been in US custody for two years might have acquired top secret US information,” said Wilner, “why don’t they just clear us for top secret information?”

The conditions that the Department of Defense imposed were regarded as so draconian by the US National Association of Criminal Defense Lawyers that it ruled it would be unethical for a lawyer to agree to defend a prisoner in the Guantanamo tribunals. They include a requirement to inform on the clients to the military authorities and not to discuss with anyone, including the client, evidence the military deems classified. The legal effort is further hampered by difficulties in obtaining competent interpreters, who also need security clearance. The military lawyers, too, struggle with a shortage of facilities and funds. At least one military lawyer still has no interpreter. And in this world of shifting rules, the military lawyers remain uncertain about how much they may criticize the process publicly.

”There is a category of ‘protected information’,” says one military lawyer, “which has been invented for this. It has no legal basis and comprises classified information plus anything else that someone thinks it would be contrary to the national interest to have released. There is no explanation of how it can be challenged or what the legal basis of it is.” In a training exercise on protected information, one officer said that he knew of no evidence that implicated his client. He was told that the absence of evidence was itself protected information.

Charges have been published against only the four defendants who appeared this week. David Hicks is charged with conspiracy, attempted murder by an “unprivileged belligerent” and aiding the enemy. Ali Hamza Ahmed Sulayman al-Bahlul of Yemen, Ibrahim Ahmed Mahmoud al-Qosi of Sudan – who is alleged to have joined al-Qaeda in the Sudan in 1989, and to have worked for it in Pakistan, Chechnya and Afghanistan – and Salim Ahmed Hamdan, Swift’s client, are also charged with conspiracy. The preliminary hearings in the first cases began this week and the defense lawyers believe that the government is anxious to press forward with the trials as early as September, but they still do not have detailed rules of procedure. They do not know whether witnesses will need security clearance to go to Guantanamo Bay or how to use evidence from witnesses who cannot go there. “My private worry,” says one military defender, “is that my presence will merely serve as a fig leaf for a procedure that is fundamentally unfair.”

The lawyers of the loose coalition that coalesced around Guantanamo have forced an opening in the US legal system. Now they face the different complications of how to proceed and whether to try to co-ordinate a future strategy or to pursue the interests of their clients separately. There are, though, the complications of success. Since the Supreme Court decision, Justice in Exile, which already had taken on 53 Guantanamo cases, has been flooded with requests for representation from detainees’ families in Bahrain, the Yemen, Saudi Arabia, Libya, Qatar, Syria and Jordan. Stafford Smith took them all.

Margulies reflects on the long fight to get to this point.

”I am proud of my role,” he says, “though articles about frayed carpets in impoverished legal offices make me sick.” “We feel vindicated,” says Wilner. “The firm took some heat but attitudes have changed with the passage of time and people realise the government is not infallible. Now I get congratulations instead of hate mail.” Celebration, though, is premature for Wilner. “It’s important to remember that it’s only a legal victory. It’s clear that most of the people in Guantanamo shouldn’t be there. But they’re still there. It’s been two and half years and we don’t know how much longer it will take. It’s really bothering me.”

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