Freedom detained 

Atlanta lawyers fight to gain rights for those held in Guantanamo

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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.

click to enlarge NOWHERE MEN: It took the Bush administration more than four years to even name the men who are being held in Guantanamo. - NAVY PHOTO BY PH1 (AW) SHANE T. MCCOY
  • Navy photo by PH1 (AW) Shane T. McCoy
  • NOWHERE MEN: It took the Bush administration more than four years to even name the men who are being held in Guantanamo.

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."


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