Jennifer Cowan (NYLJ/Rick Kopstein)
Debevoise & Plimpton litigator Jennifer Cowan led a team of lawyers who used a novel argument to secure the release of Guantanamo Bay detainee Ibrahim Idris, who was reunited with his family in his native Sudan December 2013—nearly 12 years after he became one of the first suspected al Qaida fighters sent to Cuba.
In her petition for habeas corpus, Cowan did not address claims that Idris was an enemy combatant. Rather, she argued that he had to be released if he could not return to the battlefield. And she said the obese, diabetic and schizophrenic Idris was in no shape to face the U.S. in battle. The government dropped its opposition to Idris’ release, and D.C. District Judge Royce Lambeth became the first judge in the district since 2010 to grant a detainee’s habeas petition.
Debevoise took on five detainee clients, including Idris, in 2005. Firm lawyers joined as many as 500 lawyers and legal assistants handling cases pro bono.
Cowan, 43, a Columbia Law grad who is a counsel at Debevoise, said she initially didn’t appreciate the difficulties she and her colleagues would face.
She said she has traveled to Guantanamo about 20 times. The military has become “resigned” to the lawyers’ presence, she said, but is “certainly not accommodating.” And communicating with Idris presented extra difficulties.
She worked on the case with Debevoise associates Rushmi Bhaskaran, Nwamaka Ejebe, Michael T. Leigh and J. Nicole Stankewicz.
One of Debevoise’s detainee clients was released in December 2007 and another in December 2009. There are two remaining, both from Yemen. Cowan says she has been encouraged by the Obama administration’s apparently revived commitment to close the detention center.
Meanwhile, she said, “I am committed to representing our remaining clients.”
Q: Has many hours has Debevoise devoted to representing Guantanamo cases over the years?
A: We’ve represented detainees at Guantanamo since 2005, and over those eight-plus years, we’ve logged more than 25,000 hours in the representations.
Q: Has the firm’s willingness to take on Guantanamo clients been controversial? Has either the firm or you personally been criticized by colleagues or clients for doing this work?
A: Debevoise takes on pro bono matters across the political spectrum and fully supports all of them, and our Guantanamo representations are no exception. Our team has always had the full support of the firm. When a government official suggested in 2007 that companies should not engage law firms that represented Guantanamo detainees, a number of companies forcefully rejected that idea.
I’ve certainly heard criticism from people in my personal life. But I’m happy to talk through the representations with anyone, and I can be fairly persuasive. Most people who initially have had objections eventually accept that these representations are important not only to the individuals but are also important to support the rule of law.
Q: What is the nature of your own practice at Debevoise?
A: I’m a litigator, and I work on a variety of matters including internal investigations and responses to regulatory subpoenas, commercial litigation, and securities litigation.
Q: What other kinds of pro bono cases have you handled?
A: When I was a junior associate, I took on some individual asylum and orders of protection representations, which were wonderful experiences and terrific training opportunities, and I occasionally represent not-for-profit organizations which are pro bono clients of the firm in disputes.
Q: Why did you decide to represent Guantanamo detainees?
A: During the years following the Sept. 11th attacks, I became increasingly concerned that a number of the federal government’s national security policies were violating basic civil liberties and undermining the rule of law. When the opportunity came to represent Guantanamo detainees, I thought this was a chance to help fight those battles rather than just fret about them.
We’ve represented a total of five detainees at Guantanamo. Three have been released and two remain detained.
Q: How did your firm decide to represent Idris and its other Guantanamo clients?
A: After the U.S. Supreme Court ruled in Rasul v. Bush, 542 U.S. 466, in 2004 that Guantanamo detainees had the constitutional right to bring habeas actions in federal court challenging their detention, the Center for Constitutional Rights, which had brought Rasul, organized lawyers to represent individual detainees. The International Committee for the Red Cross had notified families if a relative was detained at Guantanamo. CCR worked with organizations in the detainees’ home countries to obtain next-friend authorizations from relatives of the detainees for the representations.
Even with the next-friend authorizations, lawyers were not permitted to communicate with their clients at Guantanamo until after they had filed habeas petitions on their behalf. Relying on those next-friend authorizations, the lawyers filed bare bones petitions and applied for security clearances, and only then could we write to and meet with our clients. As a result, we knew very little about our clients when we took on the representations.
Q: What are the challenges/frustrations of doing Guantanamo cases?
A: I could (and do) talk for hours about the challenges and frustrations of these representations so I’ll only focus on two sets of challenges here. The first is communicating with our clients, which is complicated and time consuming. The military imposes a number of restrictions on our meetings and telephone calls, including a requirement that all of my notes from our meetings are presumptively classified. It can take weeks for the government to decide whether the notes are classified and I have no access to them during the review. If the notes are deemed classified, then I can never discuss those notes with the client because the detainees are not permitted access to classified information, even if it’s their own words. A number of the restrictions proposed by the military have been rejected by courts as being too intrusive on the attorney-client relationship but many restrictions are in effect.
For example, in July, Judge Royce Lamberth in Washington, D.C. concluded that the military had instituted genital searches to deter detainees from meeting with their lawyers and ordered the military to revert to its prior, less invasive search protocol. In that opinion, Lamberth observed that “seemingly at every turn, [the government] has acted to deny or to restrict Guantanamo detainee’s access to counsel.” The government appealed and Lamberth’s decision is currently stayed. Many detainees are refusing to meet with their attorneys so they don’t have to undergo the four genital searches that are required whenever they leave their cells.
The second set of frustrations is with the development of the law surrounding the habeas cases and, specifically, the absence of evidentiary safeguards that apply in other legal proceedings and the low standards for detention. Our clients have been detained for more than a decade and some of them may be detained for the rest of their lives, but evidence that would not be allowed in a civil suit is admissible against them and the evidentiary burden on the government to establish detainability is minimal.
Q: Have conditions changed at Guantanamo since you started doing these cases?
A: My sense is that the day-to-day conditions for the detainees have generally improved over time, although they certainly declined last year when many were put in solitary confinement for months. As described above, the military has taken steps in the past year or so that has made it more difficult to communicate with our clients and therefore harder for us to represent them.
Q: Why was Idris at Guantanamo?
A: Among other things, Idris was alleged to have been a long-time member of al-Qaida and a medic at an al Qaida training camp in Afghanistan. He was captured by the Pakistani military near the Afghanistan-Pakistan border in December 2001 with approximately 30 Arabic-speaking men whom the military has alleged were senior al Qaida fighters. He arrived at Guantanamo as part of the first group of detainees in January 2002. Idris was cleared for release by the government in November 2009 and in October 2013, three months after we filed a motion for judgment, the government withdrew all of the allegations against him. The court issued the writ of habeas corpus two days later.
Q: Why was his case unusual?
A: The allegations against Idris are similar to the allegations against other detainees who were captured at the same time and place. His case was unusual because he was diagnosed with mental illness within weeks of arriving at Guantanamo in 2002 and over the years, he was also diagnosed with multiple physical illnesses. During the nearly 12 years that he was detained, his mental and physical illnesses became much more severe.
Q: Were you able to communicate with him? Did you and your colleagues develop any relationship with him?
A: Early in the representation, we had many conversations with Idris, although his comments and observations didn’t always comport with reality. In recent years, his mental illness made communication impossible. On more than one visit, he would sit silently for long periods of time, occasionally talking to himself, and constantly re-arranging objects on the table.
Q: Did you have any success in representing him from 2005 up until his final release?
A: In 2009, Idris was cleared for release by an inter-agency task force established by President Obama. We made a submission to that task force arguing for his release. Only the decision of the task force was made public, not its analysis, so I have no way of knowing whether that submission affected the outcome. Despite being cleared by the task force, Idris was not released until we filed a motion for judgment in his habeas action and the government withdrew the allegations against him.
Q: Can you summarize your successful argument for his release?
A: The detainees at Guantanamo are theoretically not being held as punishment. Like prisoners of war, the purpose of their detention is to prevent their return to the battlefield. (Of course, at this point, they’ve been held for more than a decade with no end in sight.) Both domestic law and the international law of war are clear that if a detainee is so ill that he cannot return to the battlefield, then there is no longer any legal justification for his detention and he must be repatriated.
We argued that Idris was so ill that if he was released, there would be no way that he could “return” to the battlefield. (We also maintained our position that he had never been on the “battlefield” so a “return to the battlefield” is a misnomer but that’s the term of art in the legal standard.) Because the government withdrew the allegations against Idris and did not oppose entry of the writ of habeas corpus, the court never ruled on our argument.
Q: Why was this argument “novel”? How did you come up with it?
A: To my knowledge, no other Guantanamo detainee has invoked the domestic and international law requiring the repatriation of ill detainees. The kernel of the argument was in dicta in a D.C. Circuit decision which referenced a different provision of the relevant domestic law—Army Regulation 190(8). In developing the argument, we were able to rely on a remarkable network of attorneys for Guantanamo detainees who are deeply knowledgeable about the relevant law and really good at what they do. Many of them, especially the attorneys at the Center for Constitutional Rights, helped us enormously.
Q: Why did the government drop its eight-year opposition to a writ of habeas corpus for Idris?
A: I’d like to think it was our brilliant legal argument but I don’t know, you’ll have to ask them.
Q: Idris said at a press conference in the Sudan after his release that he and other detainees had been “systematically tortured”? Do you believe that?
A: I have not spoken to him since his release so I don’t know to what he was referring.
Q: Do you think that the detention center will be closed any time soon?
A: It’s hard to predict, especially given the repeated statements from the administration in the past that they were going to close Guantanamo. I’ve been heartened by the recent releases and the Obama administration’s apparent renewed focus on closing it.