Lawyers Swarm to Defend ‘Enemy’ Detainees – Miami Herald – by Carol Rosenberg – PDF

2005 Lawyers Swarm to Defense of ‘Enemy’ Detainees

One is a World War II Navy veteran, a judge appointed by Richard Nixon who served 20 years on the bench. Another is an observant Jew working for two Muslim brothers held by the U.S. military 1,000 miles apart.

They include family practitioners, white-collar litigators, anti-death-penalty activists and constitutional-law professors. They are Republican and Democrat.

Three years into the Bush administration’s policy of holding terrorism suspects without charge, a far-flung cast of lawyers has come forward to plead the cases of Muslim captives kept at Guantanamo Bay, Cuba. They work for free.

There are so many that the Man­hattan-based Center for Constitutional Rights lists more than 200 lawyers working on 140 Guantanamo prisoners’ habeas corpus petitions, chal­lenging the government to explain why it is holding them. In the lawyers’ view, it’s a struggle over post-9/11 civil liberties.

“This is absolutely the most important litigation in my mind since Brown v. Board of Education,” said law­yer Marc Falkoff, whose New York firm is defending 13 Yemenis who have been held at the prison for three years.

“This is the president say­ing, ‘If I say so, it is so. If I say you are an enemy of the United States, and you are too dangerous to be tried by the judicial system, I can keep you locked up forever.'”

The Pentagon says the 540 or so captives at Camp Delta are terrorists whose interro­gations have yielded valuable intelligence against al Qaeda and the Taliban in Afghani­stan. It says the military can weed out anyone who shouldn’t be there by using classified intelligence, and it has consistently spurned civilian judicial oversight.

The showdown continues today in a federal court in Washington, where the Bush administration defends its Military Commissions — or war crimes court — as a response to international ter­rorism.

Meantime, the number of lawyers willing to represent the detainees without charge — and cover costs from their own pockets — “is unbeliev­able,” said Tina Foster, who is coordinating the cases at the New York law center.

Clients range from citizens of oil-rich Saudi Arabia to dirt-poor Chad in sub-Saha­ran Africa. Lawyers and their firms are paying the court costs, travel fees and transla­tors.


Some examples:

  • A senior partner at the Clifford Chance law firm in New York took on the case of an alleged terrorist because both spoke French. To reach his client on the remote Navy base in Cuba, he had to fly to Fort Lauderdale, then take a small, cramped charter flight.
  • Solo practitioner Mar­jorie Smith, 59, of Piermont, N.Y., sued on behalf of a French captive who was sent home recently, after months of behind-the-scenes U.S.-French diplomacy. She never met him but is considering taking another client. “You’re up against people in the Department of Justice who may not have unlimited resources, but they have a lot,” she said.
  • British-born U.S. lawyer Clive Stafford Smith, an early activist, has traveled the Arab world as a Soros Foundation fellow to get powers of attor­ney from families of Guanta­namo detainees. An anti-death-penalty activist based in London, Smith is also getting prisoners to identify fel­low prisoners on their cell-blocks who want lawyers.

“There are people there not being represented who are sitting there rotting,” Smith said as he headed for his third trip to the prison camp.

Some Guantanamo detain­ees’ attorneys argue that their clients are victims of mis­taken identity. Others say that whatever crime the captives may have committed, the United States can provide due process and protect national security at the same time.


“As a lawyer, I’m simply outraged at the fact that these guys have been sitting down there for three years with no impartial determination being made on whether these are good guys or bad guys,” said Robert Rachlin, 68, a former Vermont state attorney who is board chairman of the Cen­ter for Holocaust Studies at the University of Vermont.

Awaiting security clear­ance, he has yet to meet his client, Algerian Jamel Ameziane, and does not know the circumstances of his capture or what the United States says he did. But Rachlin, the senior partner in a 60-lawyer Bur­lington firm, said he volun­teered to take the case because they both speak French.

Other lawyers who have taken on Guantanamo cases have practices in Northamp­ton, Mass., Minneapolis, Port­land, Ore., Chicago, Seattle, Atlanta and Philadelphia — and at some widely known multinational firms.

“We realize we are dealing with very unpopular clients,” Rachlin said. “But — this may sound a little bit sanctimonious — I did take an oath several times in my life to defend and support the Con­stitution of the United States. All I’m doing is keeping my word.”

Rachlin is part of a recent surge in volunteers who responded to a call by the American College of Trial Lawyers.

The Bush administration had banned detainees from getting civilian lawyers from the moment it set up the camp, prompting Michael Ratner’s Center for Constitu­tional Rights to sue.

Last June, the U.S. Supreme Court ruled in response to a lawsuit by Rat­ner and others that the Navy base at Guantanamo Bay fell under U.S. jurisdiction, pav­ing the way for the first law­yer visits last August. Then a federal court ruled against the Pentagon six months ago, upholding attorney-client privilege and blocking mili­tary intelligence eavesdrop­ping on their meetings.

Instead, the court set up a strict security regime regulat­ing what lawyers can reveal publicly and what they must present under seal.


Lawyers from Falkoff’s New York firm have visited the base three times, and Falkoff estimates that he has spent about 92 hours with his 13 Yemeni clients — men in their 20s and 30s, most of them seized by Pakistani authorities and turned over to U.S. troops in Afghanistan.

He says they were bystanders, scooped up not on the battlefield of Afghani­stan but mostly in neighbor­ing Pakistan — in the wrong place, at the wrong time.

“I would invite any one of them to sleep over at my apartment,” said Falkoff, 38. “None of these guys are ter­rorists; none of these guys is a danger to the United States.”

In a curious twist, Falkoff’s firm, Covington and Burling, gave pro bono representation to the widows and orphans of law enforcement officers and firefighters killed in the Sept. 11 attacks, in negotiations with a federal victims compensa­tion fund. Covington lawyers also argued — and lost — Fred Korematsu’s World War II-era Supreme Court chal­lenge of the U.S. internment of Japanese Americans in the United States, a policy for which American presidents later apologized.

Oregon lawyer Jan Kitchel said he recently signed on to represent Ahmed al Wazan, although Kitchel has yet to receive a security clearance to let his client know.

“Usually in normal society, if you’re locked up, you get access to a phone,” he said.

In contrast, Newark, N.J., lawyer Mark Berman, 37, a director at Gibbons Del Deo, has been mired in the “enemy combatant” issue for several years.

His firm’s namesake part­ner, former Judge John J. Gib­bons, argued before the Supreme Court in the case that ultimately allowed law­yers to represent Guanta­namo detainees nearly three years after the first one arrived. A World War II Navy veteran who served at Guan­tanamo about 50 years ago, Gibbons was named to the federal bench by President Nixon and retired in 1990.

Berman may also be the only Hebrew-speaking obser­vant Jew serving as a habeas corpus lawyer. His clients are two Qatari brothers whom the Bush administration has labeled enemy combatants — Jarallah al Marri, held at Guantanamo, and his older brother Ali, 38, a U.S. immi­grant held since June 2003 at a South Carolina Navy brig.

“Their parents must be very proud,” he cracked in Borscht Belt humor, but became serious when he said the elder Marri’s case was “an outrage to American stan­dards of justice.”


Ali Marri, one of two enemy combatants now on U.S. soil, was originally arrested in 2001 on a charge of credit card fraud in Peoria, Ill. Two years later, the Bush administration averted a trial by declaring him an enemy combatant, a suspected al Qaeda member.

The law firm took Jarallah’s case at his older broth­er’s request.

“It’s become quite clear to me, having worked on Ali al Marri’s case for two years now,” Berman said, “that the only thing the government responds to is lawyers advo­cating very vigorously.”


The Pentagon has so far permitted at least 28 attorney visits between civilian lawyers and detainees named in habeas corpus petitions. To represent a detainee, a lawyer must:

  • Obtain a client, usually by getting a family member’s power-of-attorney.
  • Apply for Pentagon security clearances to visit the base, a procedure that can take at least six weeks.
  • Reach the base in southeast Cuba via a small charter airplane service from Fort Lauderdale airport.
  • Meet clients in a solitary confinement facility, called Camp Echo, where a detainee is shackled to the floor.
  • Stay in guest quarters a ferry ride away from Camp Echo, and have military escorts throughout their stays.
  • Hire and bring own translators, pay their way and get them security clearances.
  • Surrender notes of client meetings to a military escort, who stamps them classified and mails them to a “secured facility” run by the Department of Justice U.S. courts and at a secret location in Washington, D.C.
  • To work with the notes, use them inside the facility or get a review panel to lift the classification.


  • So far, attorneys have filed habeas corpus petitions in Washington, D.C., on behalf of 140-plus prisoners.
  • The Pentagon has so far permitted 28 civilian lawyers to meet their clients at Camp Echo at Guantanamo.
  • Civilian lawyers first asked to represent detainees in early 2002; Gita Gutierrez became the first, in August.
  • Lawyers include white-collar litigators, professors, solo practitioners, Republicans and Democrats.


More than 200 lawyers are working on Guantanamo detainees’ habeas corpus petitions without charge. They range from solo practitioners to law professors to senior partners at large, multinational firms:

  • John Gibbons, “lawless enclave”

A former federal judge who was appointed to the bench by Richard Nixon, he argued at the Supreme Court in April 2004 that the Bush administration had created “a lawless enclave” at Guantanamo. The court later ruled that the detainees can contest their detention in U.S. courts.

  • Gita Gutierrez, first to Cuba

This New Jersey attorney was the first habeas lawyer to meet enemy combatants in Guantanamo, in August 2004. She met two British detainees, who have since gone home through diplomatic deals.

  • Robert Rachlin, recent volunteer

“I did take an oath several times in my life to defend and support the constitution of the United States. All I’m doing is keeping my word,” said the former Vermont state attorney. He decided to represent a detainee after a call from the American College of Trial Lawyers.

  • Michael Ratner, sued early

His Center for Constitution Rights sued on behalf of Guantanamo detainees in February 2002, setting the stage for a Supreme Court battle with the Bush administration.