Cover Story: Freedom detained

Somewhere between leaving Atlanta and arriving by ferry on Guantanamo Bay’s stark eastern shore, Kristin Wilhelm began to wonder what she’d gotten herself into.

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The 32-year-old business litigation attorney had spent the previous afternoon wedged between two beefy military contractors on a chilly, deafening flight aboard a 15-seat puddle-jumper as it skirted Cuban airspace to reach the remote naval base.</
It was the end of June 2004 and the climate was hotter and drier than Wilhelm had expected. Palm trees and scrub brush dotted the sandy brown hills and mosquitoes swarmed everywhere. Assigned to the western shore of the bay, a mile from where the wide, irregular inlet eventually fades into salt marshes, Wilhelm was unnerved to be so near the watchtowers and razor wire that marked the edge of U.S. territory. That night, after settling into her spartan room in the low-slung bachelor’s-quarters building, she broke her own vow not to call her parents back in Stone Mountain for reassurance.</
The next morning, during the mile-and-a-half ferry ride across the bay, she sat anxiously silent while her three fellow attorneys chatted to each other. By the time she reached the final security checkpoint at Camp Echo, where green fabric woven into the tall chain-link fencing blocked out any view but the sky, Wilhelm was worried that she had gotten involved with a cause she wouldn’t have the stomach to see through to the end.</
In a few minutes, she would meet one of the men whom Defense Secretary Donald Rumsfeld had famously called “the worst of the worst.” Those housed here were all supposed to be ruthless killers, wild-eyed jihadists, al-Qaeda holy warriors or some combination of the three.</
“My thought was, ‘What the heck am I doing down here?’” Wilhelm recalls. “I believed it was our responsibility as lawyers to give these people their day in court. But I had decided that if I met some really bad guys, I’d find some way to disengage myself so I wouldn’t have to come back.”</
AS THE PRODUCT of a liberal-leaning family in Stone Mountain, nothing Wilhelm had ever done had remotely prepared her for Guantanamo.</
A top student, she majored in political science at Furman University, but realized the rough-and-tumble world of politics wasn’t for her. At the University of Michigan law school, she decided she lacked the calculated dispassion needed for criminal defense law. After clerking for a federal judge, she moved back to Atlanta six years ago to join Sutherland Asbill & Brennan, a 200-lawyer firm in Midtown, to specialize in complex corporate litigation, a branch of the law rarely concerned with issues of right and wrong.</
“I’m what you might call an ‘L.A. Law’-type of lawyer,” Wilhelm explains. “I’ve had a fairly perfect life so far. I was a good girl. I did well in school. I did everything I was supposed to.”</
Wilhelm’s career was solid, but not thrilling. In six years, she had gone to trial only once. Then, two years ago, her boss, John Chandler, called her into his office and asked if she would be interested in joining a team he was assembling — they were going to represent several prisoners in Guantanamo Bay.</
The offer gave her pause. Privately, she worried that she wouldn’t be a good fit for the assignment, that she wasn’t emotionally prepared to meet face-to-face with men whose aim was to destroy her country. “As far as understanding what was at stake in these cases, I was like your typical American,” she says. She reminded herself that it is a lawyer’s mission to ensure the protection of everyone’s legal rights, even if they happen to be terrorists. Wilhelm rationalized that, if nothing else, it would give her the chance to gain experience in a different area of the law. She told Chandler she would join the team, but she also told herself that she would bail out if she found the clients distasteful.</
The case quickly began to take on dimensions that Wilhelm had not expected — she began to understand that what was happening at Guantanamo was a fundamental challenge to the right of habeas corpus, the very heart of our rule of law.</
The legal principle of habeas corpus — the idea that a government must present evidence to justify holding a prisoner — dates at least to the 1215 signing of the Magna Carta, the English charter that formed the basis for modern law. “When the founders were creating this country,” explains Neil Kinkopf, constitutional law professor at Georgia State University, “they considered habeas corpus to be so fundamental to our concept of liberty that they didn’t think it necessary to explain it in the Constitution.”</
Also at stake are decades of American legal tradition invested in the Geneva Conventions and other treaties that established international laws of war and the treatment of foreign prisoners — tenants that the United States had originated and pushed into practice for the humane treatment of prisoners of war.</
In the wake of 9/11, the Bush administration quietly decided that the old rules no longer applied. Even before the first prisoners arrived at Guantanamo Bay in January 2002, the White House engaged in a high-level, behind-the-scenes legal debate.</
Hard-liners such as Secretary of Defense Donald Rumsfeld wanted a free hand in dealing with prisoners captured during and following the October 2001 invasion of Afghanistan. The top lawyers within each branch of the military, on the other hand, told the administration that it must follow long-standing rules against torture and coercive interrogation. If it did otherwise, they warned, the administration would risk subjecting American soldiers to the same kinds of torture from the enemy. The United States would also face the scorn of the world.</
The Bush administration went hard-line, contending that extraordinary measures were warranted in order to protect the United States from further attack. It decided that Taliban and al-Qaeda fighters represented a new class of foe, “unlawful enemy combatants,” who could be held indefinitely without trial and be kept beyond the reach of the Geneva Conventions and U.S. courts. Secretly, it also decided that long-held international rules that prohibited torture were, in the words of soon-to-be Attorney General Alberto Gonzales, “quaint” and “obsolete.”</
Guantanamo Bay, a no-man’s land outside any recognized national boundaries, was chosen as the perfect site for what was hoped would be a legal black hole. For more than four years, the administration refused even to confirm the names of the more than 650 men who have been held there.</
The uneasy status quo was ruptured in June 2004 when the U.S. Supreme Court rejected the notion that Guantanamo Bay was an island unto itself. In a habeas lawsuit brought by the New York-based Center for Constitutional Rights on behalf of several detainees, the Justices ruled that the Guantanamo Bay prison was within the jurisdiction of federal courts.</
Chandler, 62, serves as chairman of the litigation division at Sutherland, where he oversees cases that involve deep-pocketed corporations that sue each other. At the time of the ruling, he was also in charge of a local pro bono committee to find cases for volunteer attorneys and was contacted during the CCR’s national search for attorneys to represent the more than 450 men still imprisoned in Cuba. He agreed to handle the cases of five Yemeni detainees, and recruited Wilhelm and several others to join what has become known in legal circles as the Guantanamo Bay Bar Association.</
Like Wilhelm, Chandler hadn’t set out to get involved in representing suspected terrorists. But when he began to grasp the extent of the threat posed to the American legal system by the administration’s actions, he realized he had to take the case.</
“Guantanamo will someday be considered in the same way as the interment of Japanese-Americans during World War II,” he says. “What we did to the Japanese-Americans was terrible, but this is much worse. It’s atrocious.”

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WEARING A SCARF over her head and a long skirt carefully pinned “so as not to show any leg,” Wilhelm followed Chandler into a series of trailers inside the Camp Echo compound. They were made to wait in a comfortably decorated room, equipped with a Muslim prayer rug and a Quran, that’s been dubbed the “show cell” because it’s where visiting congressmen are taken.</
They were then led to an unremarkable double-wide, its one large room furnished only with cheap plastic chairs and a table the size of a nightstand. Mohammed Al Adahi, known officially as Detainee No. 33, sat in the middle of the room. Dressed in the orange jumpsuit given to uncooperative prisoners, he was wearing handcuffs and leg irons, with one ankle chained to the floor.</
After more than three years of confinement at Guantanamo, the 43-year-old Yemeni seemed delighted to see faces that didn’t belong to the military. Chandler and Wilhelm introduced themselves through an Arabic translator. They were here, they explained, not to defend him against criminal charges, but to secure him a court hearing to determine whether the U.S. government could legally hold him in custody.</
There was a degree of urgency to the meeting. Under the court order stemming from the Supreme Court’s habeas ruling, Chandler and Wilhelm had two chances to persuade their prospective clients to accept their legal help; if they hadn’t won over the men by the end of a second visit, they would not be allowed to return. So, unless the detainees agreed to be represented during this initial trip, the plan was to fly to Yemen next to persuade their families to lobby the detainees on their behalf.</
But Wilhelm had no desire to discover firsthand how women are treated in the Middle East or to put her own safety at risk. She had emphatically told her colleagues that, no matter how things went at Guantanamo Bay, she would not be traveling with them to Yemen.</
Al Adahi was upbeat but even though there were no guards in the room, he was also cautious. He’d been surprised by the visit — a letter they’d sent a month earlier had never been delivered — but he had heard that other detainees had been contacted by lawyers. To Wilhelm’s relief, he spoke as readily to her, a young American woman, as to Chandler.</
He told them he was a laborer for a state-owned oil company, and had left his wife and two young children behind in Yemen to accompany his sister to her arranged marriage in Afghanistan in mid-2001. Then, he said, he had traveled around the country for several weeks and, after the U.S. invasion, was seized on a bus carrying Taliban soldiers into Pakistan.</
He’d been singled out, American officials had told him, partly because, like many other detainees, he wore a cheap, very common style of Casio watch sometimes used in roadside bombs. But when Wilhelm and Chandler pressed for further details about his background, Al Adahi waved them off.</
“Now you’re sounding like an interrogator,” he warned more than once.</
Although Wilhelm suspected there was more to Al Adahi’s travels in Afghanistan than he was telling, she says the allegations against him — that he was in Kabul during the bombing, that he was seen tending to wounded Taliban soldiers during his bus trip — are sketchy and circumstantial at best.</
“I came out of that meeting thinking he may have some shady connections, but this is not a criminal mastermind,” Wilhelm recalls. “He’s a human being who has been held here for four years without being charged with anything or even told why he’s being held.”</
Over the course of the first week of meetings, she says, she became convinced that none of the detainees she met posed any real threat to the United States or held any dark secrets that justified their ongoing imprisonment.</
Still, the attorneys emerged from the interviews without the necessary signed agreements.</
“Think about this for a minute,” Chandler says. “These men have not seen a human being for three years except for military personnel and interrogators, and we walk in and say, ‘Hey, I’m this white guy from America and I’m here to help you.’”</
At the close of that first interview, Al Adahi handed Wilhelm a photo of his daughter, Marwa, 9, and his 7-year-old son, Azzam, neither of whom he had seen since 2001.</
“I need you to go to Yemen and talk with my wife and children,” he told her.</
As she left the trailer, Wilhelm turned to Chandler and said, “I guess I’m going to Yemen.”</
AFTER THEIR TRIP to Cuba, the attorneys were allowed to see the classified files of the detainees they’d met. They were surprised to discover that the documents contained only vague information about the evidence against the detainees, and specified no crimes the prisoners might have committed.</
Other Atlanta members of the Guantanamo Bay Bar Association have had similar experiences.</
Veteran defense attorney Howard Manchel represents Abdullah Ibrahim Al Rushaidan, a Saudi who said he’d been plucked out of a car by a bounty hunter in Pakistan and brought to Guantanamo blindfolded, chained to the floor of a cargo plane. Manchel’s client was later sent back to Saudi Arabia, whose government threw him into prison — all without explanation.</
When asked about the man’s crime, Manchel laughs bitterly. “Being the usual suspect in the wrong place at the wrong time,” he says. “He was held as an enemy combatant, but he wasn’t captured on a battlefield and there was no allegation that he’d had any special training. There’s nothing I’ve seen to suggest that he’s done anything wrong.”</
Emmet Bondurant, a prominent Atlanta litigator, is likewise frustrated with the lack of evidence against his client, a 39-year-old Moroccan named Ahmed Errachidi. In fact, a recent investigation by the Boston Globe concluded that during the months the U.S. government claims he attended an al-Qaeda training camp, Errachidi was actually working at a restaurant in London.</
“The pretext for holding him is that he allegedly belonged to some Moroccan terror group, but there’s no evidence that’s true,” Bondurant says. “This guy never had any intelligence value from day one and, after four years, anything he might have known is probably on Wikipedia.”</
Bondurant believes the prison camps at Guantanamo Bay represent the most serious violation of the Constitution by a president in our nation’s history. “This administration’s view, literally, is ‘the king can do no wrong,’” he says.</
Two months after they first visited Cuba, Chandler and Wilhelm flew to Yemen. The small, dirt-poor country wrapped around the southern end of Saudi Arabia is one that Chandler admits he “couldn’t have picked out on a map” before his visit.

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Several of the detainees’ family members — including Al Adahi’s wife and children — traveled 12 hours by bus to meet them at their Western-style hotel in Sana’a, the country’s 2,500-year-old capital nestled in the mountains 7,000 feet above sea level. The men they met wore ordinary dress shirts over long, skirt-like woven wraps and carefully tied head scarves, while women wore floor-length burqas with only a small square to reveal their heavily made-up eyes.</
Armed with the vital endorsement of a Yemeni human-rights organization and speaking through a local interpreter, the lawyers found a strong ally in Salem Al-Assani, the father of the youngest of their clients and an elder among the family members.</
Wilhelm, who had dreaded traveling to an orthodox Muslim country, found that when women removed their burqas away from men, they talked about familiar subjects, such as their families, their homes and popular movies. She even joined the men in the social pastime of chewing qat leaves, a mild stimulant that she quickly spat out.</
At the end of the visit, Al-Assani and the other parents and siblings recorded DVD testimonials to assure the detainees that the attorneys were not part of a CIA plot. But administration lawyers denied clearance for the discs to be given to detainees. Sen. Lindsey Graham, R-S.C., a former Army lawyer, even went to the well of the Senate to ridicule what he described as a request for “Gitmo to set aside its normal security policies and show detainees DVDs that are purported to be family videos.”</
After a brief flurry of legal motions, a U.S. district court in Washington approved the clearance and the government opted not to prolong the battle. “They never want to fight,” Chandler says of the Justice Department’s half-hearted efforts to suppress the videos. “They only want to jerk you around.”</
OBTAINING APPROVAL for the DVDs proved to be the last tangible progress in any of the lawsuits. The already strict security at the camps has continually tightened, Wilhelm says, with arbitrary new rules that seem specifically designed to interfere with the attorneys’ ability to meet with detainees.</
Wilhelm says the once-professional demeanor of camp guards and officers has steadily degraded into open contempt and even verbal abuse, such as when a senior officer yelled at her for refusing to leave when she was told she didn’t have proper clearance to see a client.</
The Department of Defense did not return calls from Creative Loafing seeking comment about the treatment of the lawyers at Guantanamo.</
“I’ve been a law-abiding American citizen but, down there, I’m treated like the enemy,” Wilhelm says. “It’s like their entire goal is to make my life miserable. If they’re treating me this way and showing such little respect for my role and our legal system, then imagine how they’re treating these suspected terrorists.”</
Of course, the world got its first inkling of how some Gitmo detainees were treated in the wake of the Abu Ghraib scandal in spring 2004, when it was acknowledged that several of the abusive interrogation techniques used in the notorious Baghdad prison — threats from attack dogs, sexual humiliation and being shackled for hours in painful “stress positions” — were first rolled out in Cuba in early 2002.</
Since then, dozens of former prisoners and even military interrogators have alleged that many Gitmo detainees were drugged and subjected to beatings, forced enemas and extreme temperatures.</
Although three of the Yemenis, including Al Adahi, claim to have been abused early on by guards at Guantanamo, Wilhelm says the great irony of her clients’ predicament is that the U.S. government seems largely to have lost interest in them.</
“The four younger guys, they don’t really care about,” she says. “They’ve stopped interrogating them.” Al Adahi continues to be questioned on occasion, as the government apparently still believes he had links to terror operatives.</
Over the past two years, government documents and even the military’s own generals have admitted that, far from being the “worst of the worst,” the vast majority of Gitmo detainees are considered low-value prisoners with little direct connection to terrorism — only 10 of the remaining 450 detainees had been charged with a crime.</
Brig. Gen. Jay Hood, the camp commander at Guantanamo until he left the post earlier this year, voiced his frustration to the Wall Street Journal in early 2005. “Sometimes,” he said, “we just didn’t get the right folks.”</
THIS PAST JUNE, the Supreme Court dealt the administration another blow when it ruled that the military tribunals — which permitted secret charges and hearsay evidence — were illegal under the Geneva Conventions and had not been approved by Congress.</
Bush’s response was to call for Congress to legalize the tribunals so the administration could deal with 14 “high-value” terror suspects in CIA custody — including alleged 9/11 mastermind Khalid Shaikh Mohammed — who were being transferred to Guantanamo. The administration also pushed Congress to strip habeas rights from all non-U.S. prisoners, meaning detainees can be held indefinitely without being charged or brought before a tribunal.</
A month later, under intense pressure from the White House and with an eye toward the midterm elections, Congress approved the legislation. When Bush signed it into law, it marked the first time that a president has suspended habeas corpus since the Civil War, when Lincoln imposed martial law in some states.</
For the time being, the new law likely will put an end to lawyers’ visits to Cuba, at least until constitutional challenges have worked their way through the courts.

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Dozens of legal scholars and even Senate Judiciary Chairman Arlen Specter, R-Pa., (who nonetheless voted for the bill) have predicted that the Supreme Court eventually will rule that the anti-habeas provision violates the Constitution. By then, however, Bush will be out of office and Gitmo will be the next president’s headache.</
“It’s a law I feel fairly sure will be held unconstitutional,” Chandler says. “But the administration has bought itself another two years, and in the meantime, my clients may still be sitting in prison without ever being charged. Years from now, people will look back on this in the same way as they do the Dred Scott decision and wonder how our nation could have abandoned its principles.”</
In the meantime, Chandler and Wilhelm have given up any hope of their clients ever seeing the inside of an American courtroom.</
From the beginning, Chandler says, the Bush administration’s strategy has been to obstruct detainee lawsuits with endless appeals, legal maneuvers and other delaying tactics calculated to avoid hearings in open court, where detainees would have the chance to describe how they had been treated.</
“Anytime the government gets close to a hearing, they’ll just let the guy go rather than try to defend holding him, even if he’s a bad guy,” Chandler says, referring to some of the many detainees who have been returned to their home countries, such as Australian Mamdouh Habib, one of the few Cuban prisoners accused of having prior knowledge of 9/11.</
As a result, the attorneys have focused most of their efforts on making their clients’ lives less miserable, such as bringing news from their families or simply listening patiently to grievances about prison life.</
Chandler believes that if the president could make Gitmo disappear without having to admit that most of the detainees had little business being there, he’d do so in a heartbeat. “I don’t think there’s any doubt that the administration realizes it’s done things wrong,” he says. “Policy-wise, legally and in terms of global public relations, Guantanamo has been a nightmare for Bush.”</
The best-case scenario, Wilhelm says, is that the administration will continue to release low-level prisoners such as her clients. The Department of Defense, she says, has announced that Camp 6, a new facility at Guantanamo expected to open in December, is being upgraded from medium- to maximum-security.</
“I’m hoping they stick the 100 or so bad guys in there and let the rest go,” she says.</
Wilhelm says her confidence in American justice has similarly been shaken by Guantanamo.</
“If you’re a lawyer, you have a faith in the legal system that’s very similar to religious faith,” she explains. “The writ of habeas corpus is sacred because it transcends U.S. law and goes to the rule of law. The idea of something that fundamental simply being wiped out scares the shit out of me.”</
What for Wilhelm began as a pro bono case to benefit anonymous, and possibly unsavory, clients has become a professional crusade, an effort to do the right thing despite vast public indifference — and, finally, a personal promise to the five men still sitting in cells in Guantanamo with no hope of release.</
“I may never see my clients again,” she says, “But it’s really hard for me to think of these guys down there for years, cut off from the world. I think this is the best thing I’ll ever do in my legal career.”