What would you do if you were a defense attorney at Gitmo?
by David Danzig, Sat Jul 18, 2009 at 09:36:06 PM EDT
David Danzig is at Guantanamo Bay this week observing military commissions.
Guantánamo Bay, July 15, 2009 --- Imagine for a moment that you are Richard Federico, the Navy Lieutenant charged with defending Mohammed Kamin, a man that the U.S. government has reportedly held at Guantánamo Bay since 2004 under charges that he provided "material support" to terrorists.
You are - by all appearances - a good lawyer. You have five years of work in the military justice system under your belt.
You know how to defend your clients. But now this.
You are representing an Afghan man that virtually no one in the western world has heard of. As you said of the prosecution today in court, "this is an easy one for the government to tread water on. This case has no public interest. No one is paying any attention."
The government, it seems, has been happy to simply allow Mr. Kamin to languish in detention without any substantial, independent judicial review of his case since he was detained. Today they moved for yet another continuance. This means 120 days will pass without any action.
Your case is moving forward at a "glacial pace" according even to the judge.
The prosecution is still holding onto key documents you need to mount a defense. Turning these documents over "is criminal procedure 101 - basic stuff," you complain to the judge and get a sympathetic look. But the prosecutor claims to be doing the best she can. Its "the bureaucracy," she says, and the fact that the information is "classified" that is creating the hold up. There are apparently several levels of review that have not yet been completed.
To make matters worse, the government stands between you and your client. To see him, you have to pass a note through the guards who run the cell block. But your client is not too pleased with the way things have been going since he got to Guantánamo. He has refused to see you for over a year now. There are attorneys on your defense team who have never met him.
As you explain to the court, you are representing a man who clearly "has instructed us not to speak on his behalf."
But what else are you supposed to do?
You have gone to Afghanistan in the past year. You spoke to Mr. Kamin's father. You met the six-year-old son your client has never met because he was detained before his son was born. You took pictures with them. You passed those pictures through the guards to Mr. Kamin. No meeting.
Today you had to go to court again. The government is changing the rules. The Obama administration is making changes to the military commission proceedings under which your client was to be tried. The prosecution wants another 120 days to give the politicians time to sort out how the Obama military commission proceedings will be different from the Bush proceedings. They are asking for no action for 120 more days. In the grand scheme of things, what is 120 days to you?
If you shrugged your shoulders just now and thought to yourself, "what more could you possibly do?" you are not Lt. Federico.
I watched this week as Federico threw the kitchen sink at the judge, Air Force Col. W. Thomas Cumbie, arguing that the judge ought to dismiss the case against Kamin "with prejudice," meaning it could not be re-filed.
"Proceeding with this case is a charade," Federico argued. "It is going to go away," he said. It is just a question of when.
Federico pointed to congressional testimony that suggests the military commission proceedings will be changed to eliminate the material support charges that Kamin faces. This is a "tectonic shift," Federico argued, that is "going to happen." The system itself is "flawed" and "unfair," he said.
Keeping the charges in place now against Kamin could jeopardize his ability to be reviewed for transfer, Federico argued. (The Obama administration is reviewing each detainee's case for possible prosecution, transfer or release.)
Judge Cumbie called Federico's argument "a curveball," and said that he would have to think about what the Navy attorney had said. It seems unlikely that the judge will exercise what Federico called "the judicial independence" necessary to buck the system and dismiss the charges.
It is also quite likely that Mr. Kamin will never know or understand how hard Federico fought for him today.
Watching him fight for his client in a constantly-changing and deeply unfair system, I was at times nearly moved to applaud. I was not alone, among the roughly 15 observers who witnessed the scene.
While the military commission system continues to prove to be a bad way to provide anything that appears to be justice to the outside world, many of the military defense attorneys continue to labor under this system in ways that are dazzling.
It is people like Federico - who tirelessly fight for their ideals no matter what the odds - that have made this country so great. It seems long past time that we should start listening to him.
David Danzig is Deputy Program Director at Human Rights First.