Gitmo Counsel to Get Clifford Green Award

Shannon P. Duffy

2008-01-17 12:00:00 AM

Seventeen Philadelphia lawyers who represent detainees at the Guantanamo Bay prison in Cuba will receive the Clifford Scott Green Bill of Rights Award tonight for taking on the unpopular and often frustrating task of fighting for the rights of prisoners who have been held for years, often without any charges.

The award, given every two years by the Federal Bar Association's criminal law committee, was renamed this year to honor Green, a judge and a past recipient of the award who died last year.

Attorney Patrick Egan of Fox Rothschild, the committee's co-chairman, said the Guantanamo lawyers were chosen because their work "most epitomizes the principles of the Bill of Rights."

Egan compared the group to lawyers in the McCarthy era who risked their reputations when they agreed to represent accused communists.

"Here are people in our own time who are pretty much doing the equivalent of that," Egan said.

Sharing in the award are seven lawyers from the Federal Defender's Office, four lawyers from Dechert, two from Pepper Hamilton, two from Hangley Aronchick Segal & Pudlin, one from Schnader Harrison Segal & Lewis, and sole practitioner Judith Brown Chomsky.

The honorees are: assistant federal defenders David McColgin, Shawn Nolan, Billy Nolas, Mark Wilson, Brett Sweitzer, Matthew Lawry and Cristi Charpentier; Dechert attorneys Peter Ryan, Stephen McFate, Abraham Rein and Brian Decker; Pepper Hamilton attorneys Christopher Huber and Jason Karasik; Hangley Aronchick attorneys Rebecca Starr and Sozi Tulante; Schnader Harrison attorney Elizabeth Ainslie; and Chomsky.

There are currently 277 detainees at Guantanamo, down from a peak of more than 600.

Over the years, the legal status of the detainees has remained murky, but the U.S. Supreme Court could significantly clarify their status with a decision expected in June.

Ainslie, whose firm has represented five detainees, said she and other Guantanamo lawyers have been "excoriated by conservatives for representing these people, as if we're somehow endorsing terrorism, which is ridiculous."

But Ainslie said she ignores her critics because she believes every prisoner is entitled to know the charges they are facing and to have access to a process to contest the charges.

Ainslie said she and a partner from Schnader Harrison's Washington, D.C., office have traveled to Guantanamo twice and were scheduled to return this week but were recently denied permission to do so.

Nolan, who works in the Federal Defender's Capital Habeas Unit, said the seven-lawyer team is representing five detainees from five different countries - Iraq, Algeria, Afghanistan, Uzbekistan and Saudi Arabia.

One of the five - the Saudi - has been released, Nolan said, and the Afghani was transferred to a prison in Afghanistan, but court petitions are still pending for the other three.

Federal Defender's offices around the country were asked to take on some of the cases, Nolan said, after a U.S. Supreme Court decision cleared the way for the prisoners to file habeas corpus petitions, and the judges on the U.S. District Court for the District of Columbia said the Washington Federal Defender didn't have the resources to handle all of the cases.

Chief Federal Defender Maureen Rowley took a leading role in offering the resources of the Philadelphia office to take on some of the cases, Nolan said.

Most of the lawyers from private firms were recruited by the Center for Constitutional Rights in New York, which has been coordinating the effort to find pro bono lawyers for detainees.

Nolan said most of the Guantanamo prisoners "have never been charged with anything" and that litigating their cases is at times frustrating because the Justice Department lawyers "try to keep us in the dark as much as possible."

All of the Guantanamo lawyers must first obtain a security clearance before taking on a case, Nolan said, and visiting clients in the prison involves a full day of travel on each end of the trip because the flights to Guantanamo from Florida are on small planes that must avoid flying over Cuban air space.

Nolan said that, due to the complicated legal status of the detainees, most have two pending cases - a habeas petition in the district court and a petition under the Detainee Treatment Act (DTA) pending in the U.S. Court of Appeals for the District of Columbia Circuit.

The litigation could become simpler later this year, Nolan said, when the Supreme Court decides a case that focuses on whether the DTA's more limited process is a valid substitute for habeas petitions, or, instead, that Congress has improperly suspended habeas rights.

McColgin, who has traveled to Guantanamo and to Afghanistan, decided to grow a full beard so that he would blend into society when in Kabul. At times, he said, he was apparently mistaken for a native when people on the street approached him and spoke in Pashto, one of the native languages.

Although his Afghan client has been released from Guantanamo, McColgin said he is continuing to represent the man because he is being held in a prison that was built by the United States and may still be under U.S. control.

Huber said his firm represents two detainees - a Palestinian and a man from Yemen. Although the Palestinian was cleared for release, Huber said, he remains in detention.

Every three to four months, Huber said, he visits his clients in Guantanamo to keep them apprised of their cases. But the litigation has been frustrating, he said, because the victories some of the detainees have won at the Supreme Court are quickly undone by Congress and, as a result, the cases have languished for years.

Tulante said his firm represents a Palestinian who was arrested in Pakistan in 2002. The man faces no charges, he said, but government documents show that he was suspected of being a member of a terrorist group and of associating with terrorists.

As one of only five Palestinians in Guantanamo, Tulante said, his client faces complicated logistical problems even if he is cleared for release. While other prisoners can simply be returned to their homelands, he said, a Palestinian needs the agreement of both the Palestinian Authority and Israel to return home.