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Wilson, Richard J --- "War stories: a reflection on defending an alleged enemy combatant detained in Guantamo Bay, Cuba" [2005] NZYbkNZJur 10; (2005) 8.1 Yearbook of New Zealand Jurisprudence 193

Last Updated: 16 April 2015

War Stories: A Reflection on Defending an
Alleged Enemy Combatant Detained in
Guantanamo Bay, Cuba



For more than a year, since July of 2004, it has been my privilege to represent one of the more than 500 detainees currently held at Guantanamo Bay, Cuba. I am one of several hundred volunteer lawyers who have undertaken to provide legal representation to detainees, named and unnamed, designated as "enemy combatants" and held in Cuba by the United States military. The longest detentions now approach four years, and only four detainees currently face formal criminal charges through suspect military commissions.

This paper presents my personal observations on the general legal situation of the detainees to date, on the situation of my client in particular, and on my own perspectives more than a year into the litigation. My reflections are ongoing and incomplete because the litigation surrounding the detainees

Professor Richard Wilson, Director, International Human Rights Law Clinic, Washington College of Law, American University, Washington, D.C., USA. This paper was originally presented at a conference on "Law and Security Post 9/11," held at the law faculty of the University of Hull, England, on 23 February 2005. I extend my deepest thanks and appreciation to Dr. Richard Burchill, Director of the McCoubrey Centre for International Law at Hull, and Professor Gary Edles, a friend and colleague teaching there, for the invitation and hospitality extended to me during my visit. I also wish to acknowledge the support and encouragement of my co-panelist, Dr. W. John Hopkins, Senior Lecturer in Law at the University of Waikato Law School, in Hamilton, New Zealand, to reproduce my talk for publication. The panel and all participants on that late winter day in Hull made my visit a warm and welcome one. Thanks to all. Finally, the litigation regarding the detainees has proceeded several steps forward from the time of my February talk to the time of this writing, in early September, 2005. To the extent that additional issues have been reported, I shall include them in this paper.

continues. There are many issues yet to be decided, and legal strategies will unfold as those issues are resolved. Moreover, I now have a U.S. government security clearance, necessitated when I undertook the representation, which permits me to see materials designated at the level of "secret" for national security purposes. Thus, the reflection also is necessarily incomplete because of the imposition of a protective order barring counsel for the detainees from disclosure of "secret" material provided to counsel by the government, or indeed, any aspect of their representation of a detainee that has not been reviewed and unclassified by a review team of government officials.

To the best of my knowledge, although there is a plethora of literature on the legitimacy of actions by the U.S. government in its detention policies in Guantanamo, no other lawyer involved in the litigation has written about the experience of litigating these cases as they are developing in the U.S. courts. I intend to approach this topic by addressing each of five questions. First, what is Guantanamo Bay, and what is its historic role in the implementation of U.S. foreign policy through massive detentions? Second, who is our client, how did he end up at Guantanamo Bay, and what have been the major issues he has faced since his arrival there? Third, what law applies to the detainees, and why? Fourth, what are the legal issues presented before the U.S. and other courts regarding the detainees in general, and our client specifically? Finally, what would be the ideal desired outcome of the litigation on behalf of the detainees in general, and Omar Khadr in particular? Let me now address each of those questions in succession.


The United States Supreme Court, in Rasul v. Bush, one of a landmark trio of decisions holding that the U.S. courts have jurisdiction to hear claims by individuals designated as enemy combatants, gave a good historical description of the military base at Guantanamo Bay:

The United States occupies the Base, which comprises 45 square miles of land and water along the southeast coast of Cuba, pursuant to a 1903 Lease Agreement executed with the newly independent Republic of Cuba in the aftermath of the Spanish-American War. Under the Agreement, "the United States recognizes the continuance of the ultimate sovereignty of the Republic of Cuba over the [leased areas'," while "the Republic of Cuba consents that during the period of the occupation by the United States ... the United States shall exercise complete jurisdiction and control over and within said areas. In 1934, the parties entered into a treaty providing that, absent an agreement to modify or abrogate the lease, the lease would remain in effect "[s]o long as the United States of America shall not abandon the ... naval station of Guantanamo."1

The base was operated by a joint military command after the September 11 attacks, but is now back under the traditional control of the U.S. Navy. Importantly, the Court later said of the base that "[b]y the express terms of its agreements with Cuba, the United States exercises 'complete jurisdiction and control' over the Guantanamo Bay Naval Base, and may continue to exercise such control permanently if it so chooses."2 The extent of U.S. control over the base was crucial to the Court's later analysis about jurisdiction to hear petitions for habeas corpus filed by the detainees in the federal district court of Washington, D.C. In effect, the Court concluded that Guantanamo Bay is like any state in the United States for purposes of habeas jurisdiction.

During the early 1990s, the base also was used by the U.S. government as an offshore detention facility for hundreds of Haitian "boat people" interdicted on the high seas by the U.S. Coast Guard. The facility, seen to be beyond the reach of the

Rasul v. Bush, [2004] USSC 2809; 542 U.S. 466, 124 S.Ct. 2686, 2690-91 (2004) (footnotes omitted). The second of the trio of enemy combatant cases decided on the same day held that U.S. citizens designated as enemy combatants also had the right to access to the U.S. courts. Hamdi v. Rumsfeld, [2004] USSC 2730; 542 U.S. 507, 124 S.Ct. 2633 (2004). The third case was Rumsfeld v. Padilla, [2004] USSC 2816; 542 U.S. 426, 124 S.Ct. 2711 (2004), which was remanded for filing in the proper venue.

2 Rasul, supra, at 2696.

U.S. courts, guaranteed that the Haitians could not enter the U.S., while it purported to protect them from return to Haiti. Litigation on their behalf went to the U.S. Supreme Court, where the Haitians lost.' However, litigation and political activism on behalf of Haitian detainees with AIDS was eventually successful, the camp was closed and the detainees were released.'

The new detention facility for enemy aliens began as Camp X-Ray when it was first opened in early 2002. The island of Cuba was picked after the November, 2001 military order of President Bush designated a process for the detention and trial of persons captured on the battlefield in Afghanistan. These new detainees could include anyone who "is or was a member of the organization known as Al Qaeda" as well as anyone who "engaged in, aided or abetted, or conspired to commit, acts of international terrorism" or anyone who "knowingly harbored" such individuals.' The trials called for under the order were to be conducted by military commissions designed and implemented by the Department of Defense and without review in the civilian courts, with sentencing powers permitting the penalty of death. The camp at Guantanamo was later expanded and renamed Camp Delta. Since then, various facilities have developed in the area of the base known locally as The Wire. They range from the minimum security Camp 4, with open dorms for sleeping, to what the military calls a "state-of-the-art" maximum security prison at Camp 5.6


Sale v. Haitian Centers Council Inc., [1993] USSC 89; 509 U.S. 155 (1993).

  1. Michael Ratner, How We Closed the Guantanamo HIV Camp: The Intersection of Politics and Litigation, 11 Harv. Hum. Rts. J. 187 (1998). ❑
  2. U.S.: Presidential Military Order — Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 66 Fed. Reg. 57, 833, 57,833-34 (Nov. 13, 2001).

6 Kathleen T. Rhem, Detainees Live in Varied Conditions at

Guantanamo, at http://www.defenselink.millnews/Feb2005/
n02162005_2005021604.html, (Feb. 16, 2005), visited on Sept. 5, 2005.

The military has never released the names or nationalities of detainees behind The Wire. At its peak, the camp reportedly held more than 700 persons.' As of the latest transfer out of Guantanamo in late August 2005, there were "approximately" 505 detainees, with 242 detainees reportedly having been transferred out of the facility.' In fact, in addition to detainees captured in Afghanistan, the facility holds prisoners seized in locations as diverse as Bosnia and Africa, with some 40 nations represented among the detainee population. No one knows, however, exactly how many detainees are in the facility, because numbers, names and nationalities of the detainees have never been released.' There are now more than 400 lawyers involved in the representation of detainees in federal habeas corpus, coordinated through the Center for Constitutional Rights in New York City. Still, a significant number of detainees appear in court under a general "John Doe" habeas petition on behalf of those whose identities are not known or have not been formally contacted as of yet, nearly four years after the facility was first opened.' Although the government continues to deny or downplay accounts of severe mistreatment at Guantanamo, the evidence continues to mount. Nearly two dozen detainees have seriously attempted suicide at Guantanamo since it opened."


Diane Marie Amann, Guantcinamo, 42 Colum. J. Transnat'l L. 261, 267 (2004).

8 Detainee Transfer Announced, at http://www.defenselink.mill releases/2005/nr20050822-4501.html (Aug. 22, 2005), visited on Sept. 5, 2005.

  1. The Washington Post compiled a list of some 367 detainees from unofficial sources. "Names of the Detained in Guantanamo Bay,

Cuba," at
guantanamonames.html (last visited Sept. 5, 2005). Another web site,, claims to have the most comprehensive list of names, including the names of 480 detainees and the nationalities of another 174. At, visited on Sept. 5, 2005.

  1. John Does 1-570 v. Bush et al., Order Granting Petitioners' Motion to Proceed with a Petition for a Writ of Habeas Corpus Using Fictitious Names, D.D.C, Feb. 10, 2005. The motion was granted.

Symbolically, the camp at Guantanamo is seen by many Americans as an offshore super-max prison that demonstrates the Bush administration's tough policy on dangerous terrorists. Others see it as a prisoner of war camp that keeps the detainees from returning to battle. Still others, in growing numbers, see the ongoing legal battle on the status and treatment of the detainees there as a series of jury-rigged justifications for exceptionalism that could have been avoided if the White House simply had followed the advice of military lawyers and used long-established procedures for the designation of combatant or civilian status, and for the interrogation and trial of detainee for serious war crimes under standard U.S. military law. The facility can also be seen as a cynical distraction from the darker evils committed by the U.S. military, which unquestionably has untold numbers of secret detentions at clandestine locations around the world or even at sea in moving prison ships.' For many outside of the United States, the facility is seen as an icon to American hubris, at the least an excellent recruiting tool for terrorists seeking to foment hatred of the United States, and at worst, a justification for outlaw states to take similar action against captured U.S. soldiers on some future occasion.

Whatever else it may be, the facility was designed and the policies there were implemented with three goals in mind. First, Camp Delta was set up to carry out the President's order to conduct war crimes trials before special military commissions. That goal has been frustrated to such an extent that only two military commission trials of detainees have even begun, and those were suspended almost immediately, as will be discussed below. Second, the facility was designed to provide a location for unmonitored interrogation of the detainees, purportedly to provide intelligence to fight the

Center for Constitutional Rights, The Guantanamo Prisoner Hunger Strikes & Protests: February 2002 — August 2005 (Sept. 5, 2005) at 8, available at


An insightful report on global secret detentions comes from Human Rights First, BEHIND THE WIRE: AN UPDATING TO ENDING SECRET DETENTIONS, March 2005.

global war on terrorism.13 However, aggressive interrogation of detainees such as that justified by White House and Justice Department lawyers clearly could not be conducted if they were entitled to prisoner of war status. So the administration's lawyers devised a third goal: the designation as "enemy combatant" of prisoners. As such, they would not be entitled to prisoner of war status, and so could be endlessly interrogated. The detainees, so went the policy, would nonetheless be treated humanely, except when inconsistent with "military necessity." They could thus be kept from returning to battle or freed, much as the law of armed conflict justifies the holding of prisoners of war, but only as the President saw fit, in his unilateral and exclusive discretion.' The last two policies have proved to be perversely tenacious, despite the best efforts of our large group of lawyers to seek the intervention of the courts on behalf of the detainees. 15

13 Kathleen T. Rhem, "Guantanamo Detainees Still Yielding Valuable

Intelligence," at, (March 4, 2005), visited on Sept. 5, 2005. Another document from the military offers what it alleges is evidence of that valuable intelligence. JTF-GTMO Information on Detainees, at http ://vvww, visited on Sept. 5, 2005.

14 Kathleen T. Rhem, "Government Attorney: Detainees Don't Deserve POW Privileges," at 20050304_93.html, visited March 11, 2005 (asserting that detainees are held "for reasons of national security and military necessity, not because they're being punished.").

  1. There is no doubt that in time of armed conflict, "both international human rights law and international humanitarian law apply." Organization of American States, Inter-American Commission on Human Rights, REPORT ON TERRORISM AND HUMAN RIGHTS, 61 (2002). Moreover, as to the use of torture or other cruel, inhuman or degrading treatment, "in no other area is there greater convergence between international human rights law and international humanitarian law than in the standards of humane treatment and respect for human dignity." Id., at para. 147.


Our client's name is Omar Khadr. He is a Canadian citizen, the only person from that country known to be detained now at Guantanamo Bay. He was 15 years old at the time of his capture near Khost, in Afghanistan, on July 27, 2002. In late October of that same year, after being held initially at Bagram Air Force Base outside of Kabul, he was transferred to Cuba. He has been there ever since, for nearly three years as of this writing. I've been to Guantanamo three times to visit with him.

Like virtually all of the other lawyers in the Guantanamo habeas corpus litigation, I am a volunteer, but I am not working alone. Within the law school at American University, another professor and I have been counsel for Omar from the moment the Rasul case was remanded by the Supreme Court to the local federal district court in Washington, D.C. in July of 2004. In addition, students enrolled in the law school's International Human Rights Law Clinic have worked on important aspects of the case from the beginning. The Clinic has, since 1990, provided legal services to clients seeking protection from human rights violations anywhere in the world. Our work has involved litigation in both domestic and international legal fora, as well as other projects for individual and group clients seeking human rights protection under international and domestic law.16 In addition, we were joined by dozens of lawyers who also volunteered their time, coordinated through the efforts of the Center for Constitutional Rights in New York City.17 That group of lawyers has grown to over 400, including private


For a summary of the Clinic's work, see the law school's web site and the links on the Clinic's home page, at http://www.wcl.american. edu/clinical/inter.cfm.


The Center's web site has two relevant locations summarizing our work. The first is the Guantanamo Action Center, which promotes civic activism, at The second is the legal docket of the Center, collected under the general title of "September 11th", at 1 th/ september_llth. asp.

practitioners from small and large firms and a few academics like me. Some of our cases were consolidated for action, as will be discussed below, and our broader strategies have been discussed and coordinated through an email list and web site devoted to our work. Finally, from the time the Khadr family, now living in Toronto, discovered that Omar was in detention, they have retained the services of a law firm in Edmonton, Alberta. That firm has had signal success in protecting Omar's rights in the Canadian legal system. For example, in August of 2005, a federal judge there ruled that Canadian authorities are prohibited, under the Canadian Charter of Rights and Freedoms, from conducting any interviews or questioning of Omar pending further consideration of the issue in Canada.'

Omar is distinguished by two crucial factors. First, his family is highly visible and controversial in Canada. They are not seen as sympathetic by the public and press,' and the presumptive prejudice against him and his family plays out strongly in the accusations against and custodial treatment of Omar. He and his family left Kabul, the capital of Afghanistan, shortly before the U.S. invasion of that country in October of 2001. On the road toward Pakistan, the family separated, and Omar was sent away alone. The Combat Status Review Board, discussed below, alleges that Omar later threw a grenade that killed an American soldier during the confrontation in which he was captured in July of 2002. He also is accused of being an "Al Qaeda fighter" alleged to have conducted certain activities on behalf of that group.' Omar was seriously wounded during his capture, shot three

18 Khadr v. Her Majesty the Queen of Canada, 2005 FC 1076, at http://decisions.fct-cf.gc.cafict/2005/2005fc1076.shtml.

19 See, for example, the accounts in Isabel Vincent, The Good Son, National Post (Canada), Dec. 28, 2002, available at, • and Doug Struck, In Canada, An Outcast Family Finds Support, Wash. Post, June 9, 2005, at Al.

20 O.K. v. Bush, Respondents' Factual Return to Petition for Writ of Habeas Corpus by Petitioner O.K., Sept. 15, 2004, D.D.C., No. 04-CV-1136, at Exhibit R-1, Combat Status Review Board (Unclassified).

times in the back at close range, and he lost the sight in his left eye from shrapnel fragments spread during a prolonged aerial assault. Dozens of versions of the account of his capture have been published in the Canadian press, except for his own.

Second, Omar was a boy of 15, alone and isolated from his family at the time of his capture. At the time of his arrival at Guantanamo, he had passed his sixteenth birthday, a factor that seems to have resulted in his treatment, along with other youngsters, as adults. Omar is not the only detainee who was a juvenile at the time U.S. authorities took custody of him. The information about other juvenile detainees at Guantanamo and throughout the war on terror is scant but deeply disturbing. In April of 2003, after persistent press inquiries, the government admitted publicly that they were detaining children at Guantanamo. Those identified included children who were 10, 12 and 13 at the time of their capture. The military justified their detention by calling them. "very, very dangerous people. . . . [T]hey may be juveniles but they're not on a little league team anywhere. They're on a major league team and it's a terrorism team." Dangerous as they may have been, these children were moved immediately into a separate facility, Camp Iguana, treated much better than other detainees, and all were released by January of 2004.21 A few juveniles between 16 and 17 years old at the time of their capture, such as Omar, were never afforded treatment as children and were keep with adults without any formal legal justification. A letter sent by the government on September 3, 2004, during informal discussions with a judge hearing consolidated issues, indicates that as of that date, "no detainees known to be younger than age 16 are detained at Guantanamo Bay." It said that the government's policy was to provide special treatment of detainees under the age of 16 at the time of their arrival, but the letter failed to note that

21 Melissa A. Jamison, Detention of Juvenile Enemy Combatants at Guantanamo Bay: The Special Concerns of the Children, 9 U.C. Davis J. Juv. L. & Pol'y 127, 136-137 (2005).

detainees 16 and up are treated as adults for purposes of status and treatment, particularly for interrogation.'

The government, through its actions, thus has recognized that children are entitled to treatment as specially protected persons when captured during armed conflict. Their actions in the transfer of some minors into Camp Iguana, where they were given special meals, education and other benefits, and ultimately were released to return to their families, were consistent with the requirements of international law.23 Omar, as well as a few other juveniles brought to the base after age 16, have been treated as adults at all times, without any formal justification of this legal step by the government.


From the beginning, the goal of the Bush administration was to craft a policy with regard to captured enemy combatants that would allow the maximum flexibility to hold and interrogate them indefinitely. White House and Justice Department lawyers sought not only to prevent oversight or intervention by the U.S. courts, but to assure that no legal accountability would accrue to the actors controlling the detainees. As noted previously, for example, the initial order for capture and detention denied review of decisions by military commissions in the civilian legal system. The order also conspicuously failed to mention domestic or international protections accorded to prisoners of war, although the protections of the Geneva Conventions have generally been accepted and incorporated into procedures of domestic courts martial, the venue for military trials. Moreover, the presidential order explicitly stated that these detainees would not be treated as criminal accused entitled to

  1. Letter from Thomas R. Lee, Deputy Assistant Attorney General, U.S. Department of Justice, Civil Division, to the Honorable Joyce Hens Green, Senior United States District Judge, Sept. 3, 2004 (in the record of O.K. v. Bush).

23 See Jamison, supra n. 21, at 146-155.

constitutional protections in the United States, because it was "not practicable" to do so.24

The Defense Department obviously believed that by holding the captured detainees at Guantanamo Bay, it would avoid the application of U.S. law through its interpretation of the doctrines of extraterritoriality and offshore detention. Moreover, memoranda written by executive branch lawyers during early 2002, and consistently endorsed for the president by then-White House counsel Alberto Gonzalez, make clear that he and the highest ranking lawyers in the administration believed (accurately) that the detainees would not be susceptible to aggressive interrogation if protected by the Geneva Conventions as prisoners of war, but incorrectly concluded that such status could be denied them. Finally, and most outrageously, these same lawyers attempted to redefine torture in such a way as to permit the most heinous mistreatment of the detainees whenever military interrogators believed it to be necessary. The infamous "Bybee Memo" of August 1, 2002 attempted to re-define torture as "intense pain or suffering of the kind that is equivalent to the pain that would be associated with serious physical injury so severe that death, organ failure, or permanent damage resulting in a loss of significant body function will likely result."' A working group within the Department of the Air Force, set up


Presidential Military Order, supra n. 5, at 1 (1).

25 A comprehensive description of the shaping of presidential views on

the issues of prisoner of war status and the permissible range of interrogation techniques is Jordan J. Paust, Executive Plans and Authorizations to Violate International Law, 43 Col. J. Transnat'l L. 811, 824-838 (2005). The Bybee memo was subsequently "superceded" by another Justice Department memo that more accurately defined torture but conspicuously failed to analyze the risk that abusive interrogations could also constitute violations of the prohibition against cruel, inhuman or degrading treatment under international law. Memorandum from Daniel Levin, Acting Assistant Attorney General, U.S. Department of Justice, Office of Legal Counsel, for James B. Comey, Deputy Attorney General, December 30, 2004. The memos and reports referred to in this section are available at gov_memo_intlaw.htm.

in 2003 to review the legal issues involved in detainee interrogations, found, in the most euphemistic of conclusions, that extreme definitions of torture, if applied to interrogation techniques, "could have a negative impact on public perception of the U.S. military in general."'

Despite their later recasting of policy, then, the government's position was and is that it can hold enemy combatants outside of U.S. territorial jurisdiction until the end of the "war on tenor" — that is, indefinitely — with limitless authority to interrogate them as necessary, just short of torture, because the detainees lack formal protection as prisoners of war and have no right to access to the courts of the United States for review of their status or the legality of their detention. Those of us challenging that policy have relied on an array of domestic and international norms in challenging the legality of detention. Our petition for habeas corpus review in Omar's case, for example, includes comprehensive domestic constitutional and statutory claims, including the Alien Tort Claims Act,27 as well as violations of customary international law, and human rights treaties ratified by the United States including the following: the Geneva Conventions, the International Covenant on Civil and Political Rights, the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict ("Protocol on Child Soldiers"), and International Labour Organization Convention 182 concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour ("ILO Convention 182").28 However, the federal courts have been remarkably loath to apply treaties or international customary law as sources of individual rights in

  1. Department of the Air Force, Office of the Judge Advocate General, Final Report and Recommendations of the Working Group to Assess the Legal, Policy and Operational Issues Relating to Interrogation of Detainees Held by the U.S. Armed Forces in the War on Terrorism, 5 February 2003.

27 28 U.S.C. §1350.

Khadr et al. v. Bush et al., First Amended Petition for Habeas Corpus and Complaint for Declaratory and Injunctive Relief, No. 1:04CV01136, D.D.C., Aug. 17, 2004.

the absence of explicit implementing legislation from Congress. With the few exceptions noted below, the courts have relied almost exclusively on domestic sources as authority for protection of the rights of the detainees, in those limited circumstances in which they have elected to intervene.

We believe that both the United States and Canadian governments have abdicated their responsibility to Omar Khadr as a child in military detention. Omar was detained at the age of 15, and brutally mistreated immediately after his capture, as is noted below. The government argues only that he has passed the age of majority while in detention, having celebrated his 19th birthday there this September, and that issues regarding his status as a juvenile have been rendered moot by that passage. While the government asserts, without any source to support its claim, that enemy detainees over 16 years of age are treated as adults at Guantanamo, it has recognized that juvenile detainees have a right to be separated from the adult population, to be educated and otherwise protected and nurtured as children, and ultimately to be reunited with their families. The Canadian government, rather than protecting a juvenile citizen through the most minimal commitment to a consular visit permitted their citizens by international law, instead chose to send interrogators to Guantanamo to obtain its own intelligence, which was subsequently shared with American authorities. Whatever treatment may have been justified in the case of other child detainees, the treatment of Omar Khadr by his own government and by ours has been shameful.

The first body to review the legality of the actions of the U.S. government in the treatment of detainees at Guantanamo Bay was not a U.S. court but the Inter-American Commission on Human Rights ("Commission"), an organ of the Organization of American States. I was one of several lawyers who sought review by the Commission in early 2002, in response to which it subsequently issued a request for precautionary measures to the United States asking the government to "take the urgent measures necessary to have the legal status of the

detainees at Guantanamo Bay determined by a competent tribunal."' As has been its practice, the United States rejected both the jurisdiction of the Commission over the United States government and its ability to apply international humanitarian law.' Then in June of 2004, as noted above, the U.S. Supreme Court ultimately held, in Rasul v. Bush, that the federal courts of the United States have "jurisdiction to hear petitioners' habeas corpus challenges to the legality of their detention at the Guantanamo Bay Naval Base." The cases regarding legality of detention were remanded to the federal district court in Washington, D.C., where they continue to be on hold in pre-hearing status today.

As for the conduct of criminal trials before military commissions, the purpose for which the detention facility was originally designed, the government provided the first nonexclusive list of offenses setting out the commissions' jurisdiction a full year and a half after the first captives arrived at Guantanamo.' Then, in November of 2004, a federal judge in Washington ordered a halt to one of the two military commission trials that had only recently begun at Guantanamo, finding violations of both the Geneva Conventions and domestic military law of the United States.' That decision was overturned in July of 2005 by the U.S. Court of Appeals for the District of Columbia, and a petition for review by the U.S. Supreme Court is pending action at the time of this writing.' The Department of Defense has

  1. Precautionary Measures in Guantanamo Bay, Cuba, Inter-Am. C.H.R. (March 13, 2002), at guantanamomeasures2002.html, The Commission was interpreting, among other provisions, U.S. obligations under Article 5 of the Third Geneva Convention.
  2. Response of the United States to Request for Precautionary Measures — Detainees in Guantanamo Bay, Cuba, April 15, 2002, reprinted in 41 I.L.M. 1015 (2002).

31 124 S.Ct., at 2698.

32 Department of Defense Military Commission Instruction No. 2, Crimes and Elements of Trials by Military Commissions (April 30, 2003).


Hamdan v. Rumsfeld, 344 F.Supp.2d 152 (D.D.C. 2004).


Hamdan v. Rumsfeld, 513 F.3d 33 (C.A.D.C. 2005).

announced its intention to resume military commission trials under newly amended instructions.'


Remarkably, after more than a year of aggressive litigation on behalf of the detainees in domestic and international tribunals, little has changed on the ground in the treatment or release of detainees. While the government has loudly touted the number of releases from Guantanamo — more than 200 to date — those releases have occurred largely in cases where the detainee's name was unknown before release, and where he was not represented by counsel. Nonetheless, more than 500 detainees remain in the camp, about half of whose identities are still unknown after more than 3 years of detention. In addition to the limitations on identity of detainees, counsel for detainees whose identities are known work under a series of national security limitations imposed by law and court order relating to access to and communication with clients. These limitations make active and open communication with clients nearly impossible. This section will document some of those limitations and give a broad overview of the status of current legal issues being litigated on behalf of the detainees generally, and Omar Khadr specifically.

The most immediate issue facing new counsel in the habeas litigation was the governmental and judicial concern with national security. Immediately upon entering an appearance as counsel, I was required to seek and obtain an FBI security clearance at the level of access to "secret" information. Access to classified information in the case is governed by federal law under Executive Order 12958, adopted in 1995. That order limits access to classified information to lawyers who are U.S. citizens with appropriate security clearances. The government immediately sought consolidation of all of

35 Kathleen T. Rhem, Military Trials for Two Guantanamo Detainees to

Resume Soon (July 18, 2005), at Ju12005/20050718_2108.html.

the cases then pending in the Washington, DC court, which it obtained. Government lawyers then sought and obtained a protective order covering all cases." That protective order imposed security processes that made communication and access to clients in Guantanamo incredibly burdensome.

First, all documents relating to the litigation are presumed to be classified, including all attorney-client communications. Those documents that had not been unclassified are kept in a secure facility on the outskirts of Washington, where lawyers have to travel if they wish to examine or review them. Second, incoming correspondence from detainee clients is considered classified, and all attorney-client correspondence from us is subject to screening for contraband. All such correspondence must pass through a court security office and is deposited in the secure facility after review. If the information is to be made public, review must be sought by an independent, government-named "privilege team" that makes decisions as to the level of public release. Mail between the secure facility and Guantanamo Bay takes an average of one month in each direction, and phone access has been granted in only the most extraordinary circumstances. All other incoming mail to the detainees, including family correspondence, Canadian attorney mail and magazines, goes through a complex and time-consuming review process separate from that by which attorney-client correspondence is handled. Neither Omar's family nor any of his lawyers have ever communicated with him by phone; he has had only three visits from us since our appearance in the proceedings more than a year ago because of the costs of travel and difficulties of clearance to travel to the base. While base authorities are not to interfere with attorney-client mail clearly so marked except to review for contraband, some enclosures, including court papers, have not reached Omar.

Visits to clients at the base are also burdened with extraordinary precautions. Counsel must first obtain permission to travel to the base from the Pentagon, and must


In re Guantanamo Detainee Cases, 344 F.Supp.2d 174 (2004).

receive theater clearance orders in order to be able to board private planes flying to Guantanamo from Ft. Lauderdale, Florida. Upon arrival, counsel are met by a military escort who accompanies them at all times. Counsel are housed on the Leeward side of the island in a small hotel with few amenities and very limited access to telephones, internet or email access. The trip to Camp Delta begins early with a bus ride to a ferry that transports counsel across the bay to the Windward side, where the detention camps are. All travel around the facilities must be in the company of the escort. Counsel have access to two public phones at a small shopping mall, during lunch breaks or in the late afternoon. After extended screening and security clearances, interviews with clients are conducted inside a secure building at one of the camps, with only the client and counsel present, but with visual monitoring from a central command post. Clients are shackled to the floor and visiting times are limited. After each interview session, the escort takes the written notes produced by counsel during interviews and places them in a secure pouch. At the end of the visit, the notes are sealed and mailed from the base to the secure facility in Washington, again taking about a month on average to arrive. We are not allowed to discuss particular aspects of client detention, such as their location, without prior clearance.

Even before the entry of a protective order in our collected cases, we decided to take immediate steps to protect the health and safety of our young client. We had received reliable reports that Omar had suffered physical and psychological injuries and trauma during his detention, first at Bagram in Afghanistan and later at Guantanamo. On August 10, 2004, we filed an emergency motion with our individual judge seeking access to full medical records and to an outside physician to examine Omar to assure his competency to engage with us and the legal proceedings on which he was about to embark. We relied on the only available public information on the treatment of detainees, including reports by other detainees of Omar's mistreatment, and expert affidavits noting the need for independent medical review. After full briefing of these emergency matters, the

judge held the motion for two months without having heard oral argument on the issues, despite our requests to do so. The judge denied our request, holding that we had "failed to produce evidence that calls into question petitioner's mental competency such that the relief sought would be appropriate.'37

The more central question presented in the consolidated cases was the government's bold assertion that despite the Supreme Court's ruling, the detainees were not entitled to constitutional protection in the U.S. courts. Their arguments echoed much of what detainee counsel felt had been settled definitively in the Rasul litigation, but the judges seemed more than willing to indulge the government's arguments. After extensive informal discussion, followed by briefing and argument of the issues by all parties, two federal district court judges reached opposite conclusions as to detainee rights. First, Judge Richard Leon decided that procedures implemented by the government in the immediate wake of the Rasul decision were sufficient to provide the detainees with protection of their rights.' These mechanisms included a hastily created structure the Defense Department called Combat Status Review Tribunals (CSRTs), which were created just weeks after the Rasul decision. Despite their extremely curtailed processes, and the fact that all but a small number of the CSRT proceedings concluded that the detainees were enemy combatants, Judge Leon held that there was no viable theory on which he could award relief through habeas corpus.

Two weeks later, Judge Joyce Hens Green, who handled a group of eleven consolidated case in which Omar's is included, reached the opposite conclusion.' Judge Green condemned the overbroad definition of "enemy combatant"

37 O.K. v. Bush, 344 F.Supp.2d 44, 48 (D.D.C. 2004) (Omar's initials are used because such process is required for a juvenile appearing as a party in federal court.) We did not appeal the order.

38 Khalid v. Bush, 355 F.Supp.2d 311 (D.D.C. 2005).

39 In re Guantanamo Detainee Cases, 355 F.Supp.2d 433 (D.D.C. 2005).

and found the CSRTs to deny due process. After a long discussion, largely of territorial jurisdiction, she concluded that the detainees had due process rights under the U.S. Constitution, and that the habeas claims could proceed. Her bold favorable decision was seen as the first significant vindication of the detainee's concerns, but there is a distressing down side to her decision. In a few short paragraphs, the judge dismissed most of the petitioners' international law claims,' as well as their allegations of violation of the Alien Tort Claims Act,' which permits a foreign national to bring suit in the U.S. courts for torts committed in violation of the "law of nations." She did rule that most detainees were entitled to the protections of the Third Geneva Convention, save those "detained on the ground that they are members of [Al Qaeda, who] are not entitled to the protections of the treaties" because she reasoned that terrorist organization cannot be a state party to the Geneva Conventions. She also refused to dismiss the claims of Taliban prisoners who had not properly been determined to be prisoners of war by a competent tribunal, under Article 5 of the Third Geneva Convention. Finally, she found it unnecessary to address customary international law claims because she had already found protection for the detainees under domestic law.42 Also of deep concern to petitioners' counsel was Judge Green's imposition of a stay, immediately following her favorable ruling, on all district court cases covered by her decision, pending appeal by the government. This meant that the detainees' ongoing concerns about conditions and access were presumptively barred until the appellate process ended, a prospect of long months of waiting for implementation of her favorable decision."

The decisions by Judges Leon and Green have been consolidated for review before the federal appellate court in


Id. at 480-481.

28 U.S.C. §1350.

Guantanamo Detainee Cases, supra, n. 37, at 480-481.

In re Guantanamo Detainee Cases, 355 F.Supp.2d 482 (D.D.C. 2005).

Washington, the U.S. Court of Appeals for the District of Columbia. As of this writing, briefing and argument of the cases was completed in early September, 2005, and the case is now under advisement before the court, with an opinion expected anywhere from a month or more from now. Depending on the decision, review will undoubtedly be sought before the United States Supreme Court again, which could further delay consideration of the detainees' substantive claims in actual hearings.

One additional development in the Khadr litigation deserves mention. During the winter of 2004-05, because of revelations made to us during visits with him that were consistent with those made by other detainees and lawyers seeking open information on Guantanamo, we filed a petition seeking to enjoin further interrogation and torture or other cruel, inhuman or degrading treatment of Omar while in control of U.S. authorities. The mistreatment began immediately after his arrival at Bagram Air Force Base, when he was interrogated while in the hospital recovering from his near-fatal wounds, and continued aggressively through the first year of his detention at Guantanamo, including an incident during which he was "short-shackled" in painful positions and left for hours without questioning, during which he urinated on himself. Guards returned to the room on that occasion and, finding that he had soiled himself, spread a pine-smelling disinfectant on him and used him as a "human mop," swiping him back and forth through the mess. He was left to wear his soiled clothes for days.

Despite these serious allegations, the district judge denied injunctive relief on that claim and on a companion claim arguing that there was a real risk that Omar could be transferred to another country and surrendered to authorities there who might subject him to the worst forms of torture or other mistreatment, a process called "irregular rendition" in U.S. law.' The court fashioned the question of relief for

44 O.K. v. Bush, 377 F.Supp.2d 102 (D.D.C. 2005). No appeal was taken

from the judgment.

physical mistreatment under interrogation as follows: "whether this series of allegations — the most serious of which occurred more than eighteen months ago — warrants the exceptional remedy of a preliminary injunction respecting the conduct of [the government] in this setting. The Court concludes that such relief is not warranted."' After reviewing the standards for the issuance of a preliminary injunction, the court concluded as follows: "Quite simply, even accepting petitioners' allegations of past misconduct as true, the record is barren of evidence of a "real and immediate threat" that petitioner will be subjected in the foreseeable future to mistreatment similar to that which he alleges occurred in 2003. . . . Petitioners' mere speculation that this will happen is not a competent basis for the exercise of the Court's equitable powers."' The court's suggestion that the allegations of the risk of repetition were "mere speculation," in the face of a record in which the U.S. government has actively promoted torturous treatment, and is held to no discernable standards of conduct or limits on the length, frequency or intensity of interrogation, shows an impossibly high standard for challenge to governmental misconduct in a context in which full information as to the nature and extent of ongoing interrogation is almost impossible to provide.


At this writing, counsel for the detainees are awaiting the outcome of the consolidated appeal in the federal court of appeals. That decision will determine the extent to which appellate review will continue, and it may result in a decision that foreign detainees have a right to be heard on their claims of illegal detention through the writ of habeas corpus. If hearings are permitted to proceed, it may be months before they actually are held, and there are serious questions as to whether or not the government would bring the detainees to testify in court on their claims.

45 Id. at 29 (citation to slip opinion only in Lexis-Nexis report).

46 Id. at 34-35.

To my mind, the most favorable outcome for Omar would obviously be his release to return to Canada and his family in Toronto. There would, of course, be obvious issues as to how a young man who has already lost more than three years of his life to custody in the most onerous of conditions would make the transition back into civil society, without appropriate schooling or health care, and certainly without the nurture of his family. Another option available to the authorities is simply to treat Omar as a legitimate prisoner of war, which would unquestionably improve his quality of life and opportunities for self-improvement. It would also end his otherwise indefinite interrogation. The government argues, after three years of ongoing questioning, that there is still valuable intelligence to be gained from this young man and others like him. Finally, even the worst of options, charges of war crimes by a military commission, might be a more concrete status, in better conditions and with more clear access to counsel, than the endlessly ambiguous one accorded to a designated "enemy combatant" doomed to face detention until the end of the war on terror.

As I complete this short summary of the legal situation of the detainees, there is news of an increasingly aggressive hunger strike by the detainees, the second in which they have engaged in recent months. It began spontaneously from within the detainee community. The newspapers are reporting that some 200 detainees are taking part in the strike, nearly half of all detainees. Nearly 20 of the detainees have been force fed, and their strike includes a series of demands regarding their treatment, including the most fundamental claim that they are entitled to treatment "in accordance with the Geneva Accords."' The first strike ended on July 28, with military officials agreeing to that demand, as well as to the creation of a six-member committee of detainees to act as spokespersons in talks with their military overseers. When the military broke the agreement after only a few days, the detainees returned to their strike. This time, the detainees

47 Neil A. Lewis, Guantanamo Prisoners Go on Hunger Strike, N.Y. Times, September 18, 2005,

216 Yearbook of New Zealand Jurisprudence Vol 8.1

threatened to starve themselves to death." The government has asserted that they will not allow the detainees to "starve themselves to the point of causing harm to themselves," and will provide "assisted feeding," with restraints, if necessary. One detainee recently told his attorney, "I'm dying a slow death in this place as it is. I don't have any hope of fair treatment, so what have I got to lose?" What, indeed?

After this article went to press, on November 4, 2005 the U.S. government announced that five additional detainees would face trial by military commission for war crimes. Omar Khadr was charged with war crimes including murder by an unprivileged belligerent, attempted murder, conspiracy and aiding the enemy.

48 The Center for Constitutional Rights has produced a comprehensive report on the strike, as well as the medical and legal issues in similar life-threatening hunger strikes. Center for Constitutional Rights, The Guantanamo Prisoner Hunger Strikes & Protests: February 2002 —August 2005 (Sept. 5, 2005), available at

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