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By Ari Kaplan

Cuba has long been the enigmatic romanticized land of Hemingway with its blue skies and majestic landscape. But its mysteries are no longer about fictional fishing boat captains or the sun’s rise over the horizon. Today, they are about Bahía de Guantánamo, the site of the now infamous Guantanamo Bay Naval Base located at the southeastern end of the island nation.

It is on that base that hundreds of suspected enemy combatants, including purported al-Qaeda and Taliban prisoners captured in Afghanistan, Pakistan, Iraq, and elsewhere, are being held in detention camps bearing names such as Delta, Echo, Iguana, and the now-closed X-Ray (named from the NATO phonetic alphabet). Much has been made of the claimed injustices that have taken place—torture, lack of due process, and questionable holding conditions. These reports have adversely impacted the world’s view of the United States and have even impaired the country’s view of itself.

Beyond the din of protest voices and graphic photos posted on the Internet, there is an elite group of modern day freedom fighters toiling behind the scenes with little fanfare to ensure that America’s values and the rule of law protect even the most feared and reviled in our society. They are working tirelessly (many for free), under arduous conditions and in the spirit of the values set forth by the founders on an early July day more than two hundred years ago. They bring honor to the legal profession, and they embody what it means to be from the land of the free and home of the brave. Military and civilian alike, these are the members of what is affectionately called the Guantanamo Bay Bar Association. And, as one might expect, some of its most prominent members are part of the GW Law School community.

Professor Gregory E. Maggs

Prompted by the attacks of Sept. 11, 2001, and the subsequent initiation of the war on terror, on Nov. 13, 2001, President Bush issued a military order titled “Detention, Treatment, and Trial of Certain Non-Citizens in the War against Terrorism.” This military order states generally that certain noncitizens captured in the war on terrorism could be detained and brought before military commissions.

Immediately after President Bush signed his proclamation, Professor Gregory E. Maggs, a U.S. Army reservist in the Judge Advocate General’s Corps, was called to active duty for a two-month period to serve on the team that prepared what was to become the Department of Defense Military Commission Order No. 1, “Procedures for Trials by Military Commissions of Certain Non-United States Citizens in the War Against Terrorism.” “The rules had to be consistent with the president’s order,” he says.

Following that active duty period, Maggs, who was appointed to the Committee for the Uniform Code of Military Justice by Secretary of Defense Donald H. Rumsfeld, spent six months providing advice to government prosecutors.

Col. Will A. Gunn, LLM ’94

The implementation details of the president’s order were first articulated on March 21, 2002, when Order No. 1 was issued. It provided for, among other things, the creation of an Office of the Chief Prosecutor and an Office of the Chief Defense Counsel. U.S. Air Force Col. Will A. Gunn, LLM ’94, was contacted in May 2002 by the Office of the General Counsel for the U.S. Department of Defense and told he was nominated to be the first chief defense counsel. He had previously served as San Antonio, Texas-based chief circuit defense counsel for the Air Force Central Circuit, covering 11 states between Texas and North Dakota and from Louisiana to New Mexico. “I had experience in the defense world,” he says.

After multiple interviews, Gunn, now retired and serving as the president and CEO of the Boys and Girls Club of Greater Washington, assumed the job of chief defense counsel on Feb. 17, 2003. Gunn recalls that it “looked to be a very unpopular position.” While it was not on Gunn’s short list of assignments, “it was a very important role,” he says.

Gunn’s initial duties were to review Order No. 1 and to provide recommendations to the Office of the General Counsel. He also was required to hire a staff. Ironically, Gunn was not allowed to represent any detainees himself. He did, however, hire lawyers that shared his convictions and “would be proud to hold the government to its burden and bring fairness to the issues,” he says.

“I wanted courageous people who were fighters, who would put the well being of the clients up against the well being of their careers,” he recalls. Of the lawyers in the Office of the Chief Defense Counsel, he emphasizes “you have a lot of people who would make the legal profession and the American people proud.”

Kristine A. Huskey, Adjunct Instructor

In March of 2002, while Maggs was advising the military on procedures for the commissions and Gunn was being considered for the role of chief defense counsel, an associate at Shearman & Sterling in Washington was about to embark on the legal adventure of her career. Kristine A. Huskey, now an adjunct instructor in GW Law’s International Human Rights Clinic, began assisting Tom Wilner, a Shearman partner who was contacted by the families of 12 Kuwaiti citizens suspected of being held at Guantanamo Bay.

By way of background, Huskey notes that it was only six months after 9/11 and “nobody knew what was happening or what was being done at Guantanamo Bay.” Initially, Huskey’s clients simply wanted confirmation that their sons were alive. She and her team filed a traditional complaint suing for due process in May 2002, captioned Al-Odah v. United States, in the U.S. District Court for the District of Columbia naming Secretary Rumsfeld, the Guantanamo Bay naval base commander, and others. Al-Odah was ultimately consolidated with Rasul v. Bush, a series of petitions for habeas rights filed on behalf of two Australian and two British citizens, also pending in the D.C. district court.

“When we first filed suit, it was not the issue it is today,” she says. The government’s lawyers claimed that the district court did not have jurisdiction to hear the case because Guantanamo Bay is a sovereign territory of Cuba (though there is a lease dating back to 1898 ceding control of the territory to the United States) and because the plaintiffs are not U.S. citizens. The issue was litigated for more than two years with Huskey facing disappointing rulings at both the district court and the appellate court levels. But on June 28, 2004, the U.S. Supreme Court held in a 6-3 decision that U.S. courts have the authority to decide whether non-U.S. citizens held in Guantanamo Bay were rightfully imprisoned.

Following the Court’s decision in Rasul, the case was remanded back to the district court and various issues concerning visitation rights, monitoring communications, and attorney-client privilege continue to be litigated. As the district court grappled with issues resulting from the decision in Rasul, the case of another detainee was making its way up to the Supremes. Hamdan v. Rumsfeld is the case of Yemeni citizen, Salim Ahmed Hamdan, who was captured in Afghanistan in April 2004 and charged with conspiracy to commit terrorism in July 2004. A formal Combatant Status Review Tribunal determined that Hamdan was justifiably being detained by the United States as an enemy combatant. But in granting Hamdan’s petition for habeas corpus in November 2004, the D.C. district court held that he could not be tried by a military commission before his prisoner of war status was confirmed under the Geneva Convention.

The U.S. Court of Appeals for the D.C. Circuit reversed the lower court and Hamdan is currently pending a decision by the Supreme Court. (The opinion was written by U.S. District Court Judge James Robertson, LLB ’65.)

Associate Professor of Clinical Law Arturo Carrillo, JD ’91

Despite the maturing judicial understanding of the issues, many questions remained. To help answer some of them, Associate Professor of Clinical Law Arturo Carrillo, JD ’91, director of GW Law’s International Human Rights Clinic, and his students spent the spring of 2004 researching international law to determine whether the military commissions had subject matter jurisdiction and to clarify how evidence should be treated. The clinic is the only human rights program in the country dedicated primarily to litigating human rights cases before U.S. and international tribunals.

U.S. Navy Lt. David Shull, JD ’05

That fall, David Shull, JD ’05, then a third-year law student in the clinic, worked alongside two JAG Corps members defending a detainee at Guantanamo Bay. He researched whether conspiracy was a valid charge under international law, but more importantly he was inspired to become more involved. Now a U.S. Navy JAG Corps lieutenant in Rhode Island, Shull highlights that the current convergence of international humanitarian, international criminal, and international human rights law is giving JAG Corps lawyers an extraordinary opportunity to formulate American legal principles. “I had already been interested in joining, but the research firmed things up for me,” he says. “It confirmed that if I were to have an impact, I would like to do it as an attorney in the JAG Corps on the front lines.”

David A. Berz, JD ’73

Like Shull, David Berz, managing partner of the D.C. office of Weil, Gotshal & Manges, was deeply impacted by the issues. Berz was first exposed to the situation at Guantanamo Bay in 2004 when assisting The Center for International Human Rights at Northwestern University in preparing its amicus brief to the D.C. circuit in Hamdan. In February 2005, he and a team at his firm agreed to assume the representation of five Saudi Arabian detainees.

They arranged to meet with the families of the detained in Bahrain and received authorizations to represent their family members. Most importantly, they received family photos and letters, which, according to Berz, were used “to establish our bona fides once we met our clients at Guantanamo Bay.”

One of the realities about representing the detainees is that most do not initially believe that the lawyers are there to represent their interests. “We tried to get them to trust us,” Huskey recalls. “They thought that we must be government lawyers because the military told them that they had no rights.”
Berz described his initial meeting with his clients as “an eye-opening experience.” The military facility is a large series of modular jails divided into four or five camps. The meetings with the detainees, who are fully shackled at the arms and legs, are held in Camp Echo. “You can meet with them alone, but there are strict rules about what can be discussed,” Berz says.

He stresses the fact that while the detainees were interrogated when they first arrived at the base, some have not been interrogated for as long as a year. “You immediately get a sense of how isolated these people are,” he notes. “These are people who are just sort of stuck in this unreal, very isolated world. There is something very Kafka-esque about that.”

Berz and his team are now involved in facilitating diplomatic activity between the United States and Saudi Arabia. There are two major issues holding up the repatriation of his clients. First, the United States wants assurances that it will have continued access to these detainees. Second, U.S. officials want assurances that these men will not be mistreated. “It has been a fascinating experience,” Berz says.

Carol Elder Bruce, JD ’74

“Fascinating” also can describe the work of Carol Elder Bruce, a partner with Venable in D.C., and the plight of her three Egyptian clients. In February 2005, the American College of Trial Lawyers, one of the premier legal associations in America, asked Bruce to assume the representation of her clients.

The former assistant U.S. attorney and independent counsel in the investigation of Interior Secretary Bruce Babbitt was specially tapped for this assignment because of the complex rendition issues.According to Bruce, traditional rendition occurs where the United States transfers suspects, without any court hearing or process, to a foreign state where the person is wanted for a crime. In the “war on terror,” however, Bruce advises that there is ample evidence that the United States has been shipping some suspects to foreign states—like Egypt—that are known for their brutal interrogation techniques. This practice has become akin to outsourcing torture and “has been scorned by many civil rights activists,” she says.

Bruce and her team of six lawyers from Venable filed petitions for habeas corpus on behalf of the “next friends” of three Egyptian men. The “next friends” are family members or other interested parties entitled by statute to file a lawsuit when the plaintiffs themselves are incapable of doing so. Bruce noted that all three of her clients were in Pakistan, not in Afghanistan at war with U.S. troops. “They are certain that they were sold to the U.S. government,” she says. Berz and Huskey echo this comment. One of Bruce’s clients was actually found not to be an enemy combatant in January 2005, prior to her representation, but she was not informed of this finding until the fall of 2005. And, he remains a detainee to this day. Thanks to Bruce, though, he was transferred from Camp Delta to Camp Iguana, which was built on a cliff overlooking the Caribbean Sea where he is allowed to walk freely all day in a caged compound and view the water, unlike those in other camps.

She describes her role as counsel to these detainees as “one of most significant things I have done in my career.” She also notes, however, “whenever I leave Guantanamo, I walk away shaking my head. I want my clients to know and believe that there is another side to the United States and they are seeing it in these lawyers who are trying to get them due process under the Constitution.” Of the military lawyers, Bruce notes, “every contact I have had with every military lawyer has
been outstanding.”

Col. Dwight H. Sullivan, Adjunct Instructor

The outstanding nature of those communications is due in part to the precedent set by retired Col. Gunn as the first chief defense counsel and by Col. Dwight Sullivan, the current chief defense counsel. After nine months in the position, Sullivan highlights that his role is to ensure that everyone detained is represented by counsel.

Prior to being recommended by Gunn to succeed him in this position, Sullivan was a civilian lawyer in the Court of Appeals for the Armed Forces and an adjunct instructor in GW Law’s trial advocacy program. “I thought it was a great challenge and extremely important work,” he says of his role as chief defense counsel. “I think that all of the civilian lawyers that have been working on these issues deserve great credit,” he adds. “This is really in the noblest tradition of the legal profession; these people are trying to preserve liberty at no personal benefit and at substantial cost to themselves.”

While he is on active duty until August 2007, Sullivan recognizes that a Supreme Court decision in Hamdan invalidating military commissions would effectively eliminate his job. Otherwise, there is a lot of work to be done. Of the approximately 492 detainees at Guantanamo, only 10 have been referred for trial. Of those 10, four are stayed pending various administrative proceedings.

Col. Mark Harvey, JD ’81

As the commissions proceed, it is retired Col. Mark Harvey that documents them in full detail. As the first clerk for the commissions, he ensures that all public records are available online so that the public can decide on the fairness of the commissions.

While currently in a civilian role, Harvey was an appellate judge on the Army Court of Criminal Appeals and also worked in the Pentagon. “This is very rewarding work,” he says. “I think that the country is doing the right thing by giving the detainees a fair trial.”

Professors Stephen A. Saltzburg and Robert W. Tuttle

To ensure that fairness, the Military Commission rules require that each detainee be represented by an attorney. This requirement has created a curious problem for Maj. Tom Fleener, a U.S. Army JAG Corps defense lawyer in Sullivan’s office who has been appointed to serve as counsel to Ali Hamza Ahmed Sulayman al Bahlul. Al Bahlul has insisted that he wants to represent himself, which violates the requirement of the military commission order that all detainees have military defense counsel, but it presents an ethical problem for Fleener. In December 2005, Fleener sought legal advice from Professors Stephen Saltzburg and Robert Tuttle.

“The question is one of the lawyer’s obligation when a client wants to represent himself,” Tuttle says. “People do not have lawyers forced on them,” he adds. Fleener’s dilemma is that the supremacy clause does not trump the obligations he owes to the Wyoming and Iowa state bars.

“It is about as controversial as anything is,” Saltzburg says.“We combined professional responsibility, criminal procedure, and constitutional law in our advice,” he notes.

That history is being made by lawyers fighting for liberty and justice in a way that lifts the American spirit. When Huskey or Bruce or Berz return to Guantanamo Bay for yet another challenging visit, the 3.5-hour nonpressurized Air Sunshine charter prop ride from Fort Lauderdale will not be as painful. Each has a comfortable pair of earplugs and, once there, knows the leeward side airport and aged motel at the base quite well. Each is even comfortable with the daily bus and ferry ride required to visit clients at Camp Echo. One may stop at the Subway for food to bring to a client or at Starbucks for a much needed latte. Despite the familiarity, the scene remains surreal. As they struggle with the system, so too do their clients struggle with fate. The military escorts remind them they are no longer on K Street and that the horizon line is formed not at the point where the heavens meet the earth, but at the intersection of hope and reality. To their clients, they represent both.

Ari Kaplan, JD ’97, is an attorney and a freelance writer based in the metropolitan New York area.

Voices from Guantanamo

GW Law event features former prisoners speaking out for the first time

Former detainees accused of terrorism and held at the U.S. Naval Base at Guantanamo Bay, Cuba, publicly discussed their experiences for the first time at an event sponsored by GW Law’s Human Rights Law Society, the GW Law International Human Rights Clinic, and the Center for Constitutional Rights in March. The event fostered discussion of the Bush administration’s use of detention and intelligence operations at the base. The released and exonerated detainees spoke to an audience of students, journalists, scholars, and C-SPAN viewers nationwide via live teleconference feed from London.

“The purpose of today’s program is to cast sunlight on an issue that is currently in need of sunlight,” said Dean Frederick M. Lawrence. Toward that end, speakers including GW Law professors, defense attorneys, military specialists, and family members of former detainees led discussions with the exonerated prisoners and shared information with the audience.

Former Guantanamo Bay detainee Shafiq Rasoul speaks to the audience via live videoconference feed from London.

Seton Hall School of Law Professor Mark Denbeaux (left), who reported on the statistical analysis of 517 former detainees, and GW Law Professor Arturo Carrillo, who organized and spoke at the event.

Journalists, students, and faculty and staff members watch the event in the Jacob Burns Moot Court Room.

GW Law Professor Peter Raven-Hansen moderated the panel of speakers.