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American lawyers representing accused terrorists can take an Air Sunshine flight out of Fort Lauderdale, Fla., to meet their clients at the U.S. naval base at Guantanamo Bay, Cuba. The trip takes less than four hours, but some Atlanta attorneys who went earlier this summer say it felt like going to another world. For John A. Chandler, Elizabeth V. Tanis and Kristen B. Wilhelm of Sutherland Asbill & Brennan, who were joined by colleague John P. Anderson from the firm’s Washington office, the four-day visit in late June was an encounter with an unusual legal system. Their clients — five Yemeni men captured in Afghanistan and Pakistan in the fall of 2001 — had been interrogated dozens of times over 3 1/2 years, and some claimed they have been tortured. Without lawyers, they faced military tribunals in which their detentions were upheld on classified evidence they had no chance to examine, much less refute. By the time the Sutherland team arrived, said Tanis, the Yemenis greeted them with “enormous skepticism.” “They believed that we were military interrogators posing as lawyers,” she said. And while the clients had trouble trusting their lawyers, the lawyers had to trust the military with matters typically considered attorney-client privilege. For example, the lawyers’ notes from client interviews were collected by military officials and returned about a month later — after they had been declassified. The lawyers’ discomfort reflected the tension between their mission to safeguard the detainees’ rights and the military’s concern for national security. Defense Department officials said that the Yemenis, like approximately 550 other detainees at Guantanamo, are al-Qaida members or sympathizers, which makes them enemy combatants. Newly instituted yearly reviews of the detainees’ status by military officials are sufficient to protect their rights, according to military officials. The lawyers argue that the Constitution’s guarantee against deprivation of liberty without due process means their clients — even though they are not U.S. citizens — should have their detainment reviewed by a federal court. Chandler said that before his Cuba trip, he wondered if his clients might be terrorists. But after talking with the Yemenis, he said, “I was stunned by the low-level status, the youth and the uninvolvement of these kids.” He said a federal court is the place to sort out who is with al-Qaida. “The government says over and over that they’ve got terrorists down there. And maybe I did talk to terrorists and they’re just lying to me. We have a system that sorts that out,” he said. Last year in Rasul v. Bush, 542 U.S. 466, the U.S. Supreme Court decided 6-3 that detainees have a right to challenge their confinement in federal court. That decision prompted the Center for Constitutional Rights, a New York public interest law firm, to find lawyers for the detainees. The Sutherland lawyers are among about 250 attorneys who have volunteered for the unusual pro bono project, which so far has provided counsel to about 150 detainees, according to the Center for Constitutional Rights. (Atlanta lawyers Howard J. Manchel of Manchel, Wiggins & Kaye and Emmet J. Bondurant, Emily Hammond Meazell and Ronan P. Doherty of Bondurant, Mixson & Elmore also are representing detainees, but they have not been to Guantanamo yet.) The Sutherland lawyers filed habeas corpus challenges for their detainees last spring in U.S. District Court in Washington, but the petitions have been stayed pending decisions on similar cases by the U.S. Court of Appeals for the D.C. Circuit. At issue are conflicting rulings from district judges over whether detainees have rights under U.S. or international law that can be vindicated in court. Oral arguments are set for September, with the losing parties expected to seek review at the U.S. Supreme Court, a process that Chandler estimated could delay any habeas challenges from being heard for two years. YEMENI CLIENTS Chandler described the Guantanamo base as a “big country town” with familiar chain restaurants such as McDonald’s staffed by Jamaicans and Filipinos. The base is built on two sides of the bay, he said, and the lawyers stayed in guest barracks on the leeward side. Each morning they would take a ferry across the bay to see their clients. They would be met by a chief petty officer who accompanied them at all times, except when interviewing their clients. “Lawyers are considered sufficiently dangerous that we were required to have an escort the entire time we were on that side of the base,” Chandler said. At the prison, said Chandler, the cells are slightly larger than a bed, with a toilet and sink. The lawyers met with their clients in a visiting area. “The guards shackled them down, and we talked,” he said. A camera monitored the proceedings, Tanis added, but the lawyers were told that the sound was off. The stories they heard varied. The lawyers said their clients are devout Muslims who journeyed to Afghanistan from Yemen because, under the Taliban government, it was the center of the fundamentalist Muslim world. One client said he was in Afghanistan teaching the Quran, while another said he was there working for a charity. Two others went there for military training by the Taliban. “I think some of them may have been sympathetic with the Taliban, but I am unaware of any information suggesting that they were engaging in or planning to engage in any terroristic activities anywhere — much less against the United States,” said Tanis, speaking about the Yemenis for whom her notes are declassified. One client, Muhammad Ali Abdullah Bawazir, said he went there to work with a Yemeni charity group and to escape family problems in Yemen. Another, Suleiman Awadh bin Aqil al-Nahdi, submitted a statement at an internal military hearing saying that he went to Afghanistan at the urging of TV clerics. “I made a promise to my mother that I would only go for six months and then come back home. If I knew in advance what would happen, I never would’ve went. I had no job and lots of problems. I got a free ticket and some money, so I went,” he said. He insisted he did not participate in a jihad against the United States. “I went before 9/11, so it had nothing to do with America. I have no problems with America.” STATUS REVIEWS The Rasul decision, which prompted pro bono lawyers to sign up detainees as clients, also led the government to launch internal hearings last August in which panels of three officers decided whether detainees still should be classified as enemy combatants and remain at Guantanamo. During the hearings, called Combatant Status Review Tribunals, the detainees were furnished with a personal representative, who was not a lawyer. The officers also were not lawyers. The tribunals, which concluded last March, found 38 detainees not to be enemy combatants, and they are being released or transferred, usually to their country of origin, said Capt. Beci Brenton, a spokeswoman for the Office for the Administrative Review of the Detention of Enemy Combatants, or OARDEC. The government also started a separate annual review process for each detainee last January to see if he is still a threat to the United States or has intelligence value. So far, the 88 annual reviews that have been completed will allow four detainees to be released and 36 to be transferred to another government’s custody, Brenton said. The Sutherland lawyers charge that these reviews are insufficient because their clients were not represented by a lawyer and had no chance to present evidence and witnesses to support their claims that they are not members of al-Qaida. “What we’re asking is for the government to let these people go — or to offer evidence to prosecute them or to hold them as prisoners of war,” said Chandler. Detainees were permitted both witnesses and evidence at the enemy combatant hearings, said OARDEC’s Brenton. But getting witnesses to appear was impossible, the lawyers said. One Yemeni, Bawazir, asked for a witness — the man who ran the charity he said he was working for in Kabul. This man, a well-known Yemeni, Bawazir said, could vouch for him. However, the State Department said it couldn’t find the man, and the tribunal proceeded without him. Brenton said no witnesses outside of Guantanamo appeared at the hearings, although some did testify through affidavits. According to the transcripts of the enemy combatant hearings, the panels based their decisions to continue the Yemenis’ detentions on classified information. The detainees’ lawyers, who have security clearance, are allowed access to the classified evidence, but they can’t share it with their clients, said Maj. Michael Shaver, a defense department spokesman. If the detainees were told what the U.S. military knew about al-Qaida operations and how they knew it, Shaver explained, detainees could share that information with al-Qaida upon their release, which would compromise U.S. intelligence operations. Tanis said the classified evidence rule is a “huge impediment” to investigating clients’ claims: “Our hands are tied. When you can’t share the information with your client, then they can’t say what are the flaws in this evidence.” “It becomes their word against what the government thinks,” she added. “To say these proceedings are stacked against them is an understatement.” Brenton, the OARDEC spokeswoman, acknowledged that the unclassified evidence is largely circumstantial. For example, one Yemeni, Muhammad Al-Adahi, was captured wearing a Casio watch said to be like those used in bombs made by al-Qaida. According to the transcript, Al-Adahi’s personal representative pointed out that it was a cheap, mass-produced watch owned by thousands of people, not just Islamic terrorists. “How is it that they’ve alleged that my watch is connected?” asked Al-Adahi. “Don’t know,” said the tribunal president. Referring to a photograph from a Casio Web site showing a similar model of watch, the officer added, “The only thing that we’ve seen is this.” “Frequently,” said Brenton, “it’s the classified information that is much more weighty.” DETAINEE TREATMENT Tanis charged that the some of the government’s evidence comes from confessions “obtained under brutal circumstances that would never be permitted as evidence in a criminal proceeding.” Shaver, the Defense spokesman, said the detainees have not been tortured at the base. Chandler said he does not believe the Yemenis are being tortured at present but said “they have been in the past, without question.” Tanis also said that the detainees reported better treatment at present, which she attributed to increased publicity about their situation and the arrival of lawyers at Guantanamo. Since returning from Guantanamo, Tanis said, she’s talked to people who criticize her for helping terrorists. The detentions without due process can be “morally justified,” she said, “if we assume that these are bad people.” But, she added, “if you harbor the possibility that, for example, you have a charity worker in the wrong place at the wrong time, it becomes a much harder thing to justify.” Shaver, the Defense Department spokesman, acknowledged that “determining whether a detainee is a threat is not easy and fraught with the potential for mistakes.” But, he cautioned, several detainees who’ve left Guantanamo have rejoined al-Qaida. Differences of opinion on the Guantanamo detentions are evident even at Sutherland. M. Scott Holcomb, an associate at the firm, served as a judge advocate general officer during the Afghanistan invasion. He said he’s sure some of the men being held at Guantanamo are terrorists, which makes it difficult to balance the detainees’ rights with national security concerns. “I have no doubt that there are detainees who would immediately rejoin the jihad against America upon their release,” said Holcomb. But he agreed that others in custody could have been in the wrong place at the wrong time. “I respect the work of my colleagues, but I also worry about releasing those who will use their freedom to harm us,” Holcomb said. “You can detain the wrong people, but you can release the wrong people, too.”

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