41 Attorneys from the Cincinnati Area Call on Donald Trump to Close Guantánamo

3.9.18

Campaigners from Witness Against Torture and other organizations call for the closure of Guantanamo outside the White House on January 11, 2012, the 10th anniversary of the prison's opening.Please support my work as a reader-funded journalist! I’m currently trying to raise $2500 (£2000) to support my writing and campaigning on Guantánamo and related issues over the next three months of the Trump administration.

 

Last week, 41 attorneys from the Cincinnati area, in Ohio, wrote a column for the Cincinnati Enquirer calling for Donald Trump to close Guantánamo. Founded in 1841, the paper is the last surviving daily newspaper in Greater Cincinnati and Northern Kentucky, and is traditionally regarded as a a conservative, Republican-leaning newspaper.

Nevertheless, on August 26 it gave space to the 41 lawyers, including some who have represented Guantánamo prisoners over the 16 long years of the prison’s history, for them to argue that the 41 men still held at Guantánamo should either be freed or charged and tried in federal court.

It’s a position that I agree with, as regular readers will know, and it’s reassuring to see so many lawyers come together to make such a definitive statement in the face of Donald Trump’s refusal to acknowledge that the prison is, as the lawyers describe it, “a great shame that hangs over the American legal system.”

Imagine if, across the country, thousands and thousands of lawyers got together to repeat this message, and to send it out through regional and national media.

I’d love to see it happen, and the lawyers themselves close their column by stating, “Join us in calling on bar associations, elected officials and fellow citizens in closing this awful stain on our legal system and our country,” but in the meantime I’m delighted to cross-post their article, in the hope that it gets out to interested parties who may have missed it. 

The article notes that, because the US Constitution applies at Guantánamo, the men should be freed or tried, because “[o]ne bedrock principle of due process is that extended detention without affording a trial for the individual is illegal.”

However, as they also make clear, the trial system established at Guantánamo — the military commissions — is irredeemably broken, as the experiences of one of their number, Rick Kammen, lay bare. Kammen worked on the commissions as a defense lawyer until he was obliged to resign because, fundamentally, the government was spying on the defense teams, and there was no effective way of challenging them.

I hope you have time to read the article, and will share it if you find it persuasive — and if you can help with getting or lawyers on board, let’s do it! If 41 lawyers can do this in Cincinnati, one for each prisoner still held, we surely ought to be able to get 5,000 lawyers across the country to say to Donald Trump, “No more! Close Guantánamo now!” — or perhaps, more appropriately, 6,081 lawyers, one for each day Guantánamo has been open.

Due process: Guantánamo detainees should be released
By Robert Newman and Michael O’Hara, the Cincinnati Enquirer, August 26, 2018

There is a great shame that hangs over the American legal system: the injustice of the Guantánamo detainees. Today, 41 Muslim men remain at Guantánamo. Thirteen have cases in the military commission system. The remainder have been held for up to 16 years without charges filed against them. Five of these have been cleared for transfer, meaning that the Pentagon and the intelligence agencies have agreed that they pose no security threat. Many of the 41 detainees have been tortured at either CIA “black sites” or at Guantánamo itself.

President George W. Bush released 532 detainees by the end of his second term, and President Barack Obama released 197 and sought to close Guantánamo, but was prevented by congressional action. Nine detainees have died since the prison opened, several by suicide. Now President Donald Trump has vowed that he would “absolutely authorize” torture techniques such as waterboarding on the grounds that terrorism suspects “deserve it,” and that he would fill Guantánamo back up with “bad dudes.”

Since the United States claims Guantánamo Bay pursuant to a 1903 lease authorizing a naval station and coaling station which later became a “perpetual lease,” the U.S. Constitution extends to this property and its inhabitants. One bedrock principle of due process is that extended detention without affording a trial for the individual is illegal.Sixteen years is beyond any shred of due process. Even a year cannot be justified. For this reason, all 41 detainees should be released.

Yet there are other reasons for the releasing of the detainees. Two of them, Toffiq Al-Bihani and Abdul Latif Nasser have been approved for transfer to other countries who are willing to receive them. Their continued detention is senseless and punitive.

Twenty-eight of the detainees have not even been charged. How can someone be imprisoned with no trial, no judgment of guilt and no charges? Such conduct by our government and military courts utterly betrays the constitutional promise of due process. Honoring this fundamental principle would demand immediate release of these unconstitutionally detained individuals.

Some commentators have suggested the that military commissions should be allowed to continue and that some or all of the detainees should be tried before these commissions. A criminal defense attorney from Indianapolis, Richard Kammen, spent nine years assisting with the defense of Abdul Rahim Al-Nashiri, a Guantánamo detainee charged with involvement in the bombing of the USS Cole. Al-Nashiri was charged in 2003. He has yet to be tried.

At the 2018 Kentucky Bar Annual Convention, Kammen described how it became impossible to provide meaningful legal representation due to restrictions imposed by the military commissions that offend the principles of due process we as Americans take for granted. He described how guards confiscate privileged legal materials from the cells of the detainees and how the military prosecutors read defense counsel’s correspondence to their clients.

The commander of the prosecution issued an order requiring military officials to review all legal correspondence between defense counsel and their clients, and counsel who refuse would not be allowed to visit their clients. Kammen and his colleagues discovered that the rooms in which defense counsel had been meeting with their clients for years were wired with microphones disguised as smoke detectors.

The government also intruded into defense counsels’ emails. In 2013, it was discovered that the FBI had recruited an informant on a defense legal team. When the military judge prohibited Kammen and his legal team from informing their client of concerns about attorney-client confidentiality on grounds that would result in disclosing classified information, Kammen decided that he could not ethically continue to represent his client, as he was prevented by our government and the military courts from providing constitutionally adequate representation. Thus, he was ethically compelled to withdraw.

Moreover, these same military commissions have denied detainees any effective opportunity to challenge the government’s use of detainees’ confessions that were obtained through torture and “enhanced interrogation” methods that would never survive scrutiny in any court in the United States. Counsel for detainees have been denied access to evidence relating to the circumstances under which confessions were obtained.

The government and military commissions have done this under the shadowy rubric “national security” or protection of “classified information.” Everything about the conduct of these military commissions is antithetical to the fundamental principles of the right to effective assistance of counsel and to a fair trial, rights that have long since been embedded in the Fifth and Sixth Amendments to our Constitution.

It should be obvious to any lawyer or jurist that trials comporting with due process are not possible with military commissions. To the extent that the government can provide any justification for detaining anyone, those people should be brought to American soil and tried in federal courts. The government is reluctant to do this because of the scrutiny that would necessarily focus on statements obtained from the detainees by the most brutal forms of interrogation yet devised.

This is not American justice. This is not America. We are lawyers, and we are deeply offended by the injustices of Guantánamo. Join us in calling on bar associations, elected officials and fellow citizens in closing this awful stain on our legal system and our country.

This column was jointly written by the following 41 Cincinnati-area attorneys: Robert B. Newman; Michael J. O’Hara; Timothy M. Burke; Nora Dean Burke; Louis H. Sirkin; Nicholas J. DiNardo; John L. Heilbrun; William R. Gallagher; Joseph J. Dehner; Maurice O. White; Alphonse A. Gerhardstein; Richard Ganulin; Stephen R. Felson; Marc D. Mezibov; Kathleen M. Brinkman; Lisa T. Meeks; Elizabeth Asbury Newman; John Woliver; Richard Boydston; Elizabeth A. McCord; John D. Holshuh, Jr.; Sherri Goren Slovin; Phyllis G. Bossin; Barbara J. Howard; Peter L. Cassady; Michael T. Mann; David S. Mann; William A. DeCenso; Erin M. Heidrich; Mark W. Napier; Noel M. Morgan; Matthew W. Fellerhoff; Amanda R. Toole; Joseph H. Feldhaus; Lucian J. Bernard; Terence D. Bazeley; Carrie H. Dettmer Slye; Carla L. Leader; Danielle C. Colliver; Elaine J. Fink; James B. Robinson; and Amy L. Detisch.

Andy Worthington is a freelance investigative journalist, activist, author, photographer, film-maker and singer-songwriter (the lead singer and main songwriter for the London-based band The Four Fathers, whose music is available via Bandcamp). He is the co-founder of the Close Guantánamo campaign (and see the latest photo campaign here) and the successful We Stand With Shaker campaign of 2014-15, and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (click on the following for Amazon in the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here — or here for the US), and for his photo project ‘The State of London’ he publishes a photo a day from six years of bike rides around the 120 postcodes of the capital.

In 2017, Andy became very involved in housing issues. He is the narrator of a new documentary film, ‘Concrete Soldiers UK’, about the destruction of council estates, and the inspiring resistance of residents, he wrote a song ‘Grenfell’, in the aftermath of the entirely preventable fire in June 2017 that killed over 70 people, and he also set up ‘No Social Cleansing in Lewisham’ as a focal point for resistance to estate destruction and the loss of community space in his home borough in south east London.

To receive new articles in your inbox, please subscribe to Andy’s RSS feed — and he can also be found on Facebook (and here), Twitter, Flickr and YouTube. Also see the six-part definitive Guantánamo prisoner list, The Complete Guantánamo Files, the definitive Guantánamo habeas list, the full military commissions list, and the chronological list of all Andy’s articles.

Please also consider joining the Close Guantánamo campaign, and, if you appreciate Andy’s work, feel free to make a donation.

7 Responses

  1. Andy Worthington says...

    When I posted this on Facebook, I wrote:

    Here’s my latest article, a cross-post, with my own introduction, of a powerful article by 41 lawyers in the Cincinnati area, urging Donald Trump to close Guantanamo. As they explain, the US Constitution applies at Guantanamo, and indefinite detention without charge or trial is unconstitutional, so the men still held should either be released or charged and tried. As they also explain, with particular reference to one of their number, Rick Kammen, who worked on the military commissions, but resigned when it became clear that the government had been spying on attorney-client meetings, the commissions are incapable of delivering justice, so if anyone is to be charged and tried, it needs to be in federal court.
    I was delighted to see 41 lawyers from just one area of the US come together to write this, and to get it published, and I can’t help imagining how powerful it would be if this was replicated across the US. Could we get 5,000 lawyers to tell Donald Trump to close Guantanamo, do you think?

  2. Anna says...

    Great initiative and may many more follow.
    After 16 years of reading about these lawless procedures, I still get baffled now and then by the twists of their absurdities:

    “the military judge prohibited Kammen and his legal team from informing their client of concerns about attorney-client confidentiality on grounds that would result in disclosing classified information.” Kafkaesque is too much of an understatement …

  3. Andy Worthington says...

    Yes, exactly, Anna. Beyond Kafka: America’s post-9/11 descent into brutal absurdity.

  4. june cutright says...

    one thing that i just will never understand: all this wrangling over due process. we either believe we are all created equal or we aren’t: it doesn’t matter which rock someone stands on or from which rock they departed. honestly. ‘we are endowed with equal rights under the law’ cannot apply only to certain people: once we start choosing who & who not, equality is no longer our principle. wtf? i don’t expect an explanation andy. there is no reasonable one. we are f’n endowed- from the magna carta we evolved from divine right of kings to right of everyone. ffs

  5. Andy Worthington says...

    Thanks, June, Perfectly put. As I always say, human rights are for all human beings, not just some of us.

  6. june cutright says...

    may be another good day for this poem which i copied from my fb notes. comments about author at bottom.

    Before I start this poem by Emmanuel Ortiz

    Before I start this poem,

    I’d like to ask you to join me

    in a moment of silence

    in honour of those who died

    in the World Trade Centre and the

    Pentagon last September 11th.

    I would also like to ask

    for a moment of silence

    for all of those

    who have been harassed, imprisoned,

    disappeared, tortured,

    raped, or killed

    in retaliation for those strikes,

    for the victims in both Afghanistan

    and the U.S.

    And if I could just add one more thing…

    A full day of silence

    for the tens of thousands

    of Palestinians who have died

    at the hands of U.S.-backed Israeli forces

    over decades of occupation.

    Six months of silence

    for the million and-a-half Iraqi people,

    mostly children,

    who have died of malnourishment

    or starvation as a result

    of an 11-year U.S. embargo

    against the country.

    Before I begin this poem:

    two months of silence

    for the Blacks under Apartheid in South Africa,

    where homeland security made them aliens

    in their own country.

    Nine months of silence

    for the dead in Hiroshima and Nagasaki,

    where death rained down

    and peeled back every layer

    of concrete, steel, earth and skin

    and the survivors went on

    as if alive.

    A year of silence

    for the millions of dead

    in Vietnam–a people, not a war-

    for those who know a thing or two

    about the scent of burning fuel,

    their relatives’ bones buried in it,

    their babies born of it.

    A year of silence

    for the dead in Cambodia and Laos,

    victims of a secret war … ssssshhhhh ….

    Say nothing …

    we don’t want them to learn

    that they are dead.

    Two months of silence

    for the decades of dead in Colombia,

    whose names, like the corpses they once represented,

    have piled up and slipped off our tongues.

    Before I begin this poem,

    An hour of silence for El Salvador

    … An afternoon of silence for Nicaragua …

    Two days of silence for the Guetmaltecos …

    None of whom ever knew a moment of peace

    45 seconds of silence for the 45 dead at Acteal, Chiapas

    25 years of silence for the hundred million Africans

    who found their graves far deeper in the ocean

    than any building could poke into the sky.

    There will be no DNA testing or dental records

    to identify their remains.

    And for those who were strung and swung

    from the heights of sycamore trees in the south,

    the north, the east, and the west…

    100 years of silence…

    For the hundreds of millions

    of indigenous peoples from this half of right here,

    Whose land and lives were stolen,

    In postcard-perfect plots like Pine Ridge,

    Wounded Knee, Sand Creek, Fallen Timbers,

    or the Trail of Tears.

    Names now reduced to innocuous magnetic poetry

    on the refrigerator of our consciousness …

    So you want a moment of silence?

    And we are all left speechless

    Our tongues snatched from our mouths

    Our eyes stapled shut

    A moment of silence

    And the poets have all been laid to rest

    The drums disintegrating into dust

    Before I begin this poem,

    You want a moment of silence

    You mourn now as if the world

    will never be the same

    And the rest of us hope to hell it won’t be.

    Not like it always has been

    Because this is not a 9-1-1 poem

    This is a 9/10 poem,

    It is a 9/9 poem,

    A 9/8 poem,

    A 9/7 poem

    This is a 1492 poem.

    This is a poem about what causes poems like this to be written

    And if this is a 9/11 poem, then

    This is a September 11th poem for Chile, 1971

    This is a September 12th poem for Steven Biko in South Africa, 1977

    This is a September 13th poem for the brothers at Attica Prison, New York, 1971.

    This is a September 14th poem for Somalia, 1992.

    This is a poem for every date that falls to the ground in ashes

    This is a poem for the 110 stories that were never told

    The 110 stories that history chose not to write in textbooks

    The 110 stories that CNN, BBC, The New York Times,

    and Newsweek ignored

    This is a poem for interrupting this program.

    And still you want a moment of silence for your dead?

    We could give you lifetimes of empty:

    The unmarked graves

    The lost languages

    The uprooted trees and histories

    The dead stares on the faces of nameless children

    Before I start this poem

    We could be silent forever

    Or just long enough to hunger,

    For the dust to bury us

    And you would still ask us

    For more of our silence.

    If you want a moment of silence

    Then stop the oil pumps

    Turn off the engines and the televisions

    Sink the cruise ships

    Crash the stock markets

    Unplug the marquee lights,

    Delete the instant messages,

    Derail the trains, the light rail transit

    If you want a moment of silence,

    put a brick through the window of Taco Bell,

    And pay the workers for wages lost

    Tear down the liquor stores,

    The townhouses,

    the White Houses,

    the jailhouses,

    the Penthouses and the Playboys.

    If you want a moment of silence,

    Then take it

    On Super Bowl Sunday,

    The Fourth of July

    During Dayton’s 13 hour sale

    Or the next time your white guilt fills the room

    where my beautiful people have gathered

    You want a moment of silence

    Then take it

    Now,

    Before this poem begins.

    Here, in the echo of my voice,

    In the pause between goosesteps

    of the second hand

    In the space between bodies in embrace,

    Here is your silence.

    Take it.

    But take it all

    Don’t cut in line.

    Let your silence begin at the beginning of crime.

    But we,

    Tonight we will keep right on singing

    For our dead.

    Emmanuel Ortiz works with the Minnesota Alliance for the Indigenous Zapatistas (MAIZ) and Estación Libre. He was a staff member of the Resource Centre of the Americas, the non-profit publisher of americas.org

  7. Andy Worthington says...

    Thanks, June. That is very powerful indeed!

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Andy Worthington

Investigative journalist, author, campaigner, commentator and public speaker. Recognized as an authority on Guantánamo and the “war on terror.” Co-founder, Close Guantánamo, co-director, We Stand With Shaker. Also, singer and songwriter (The Four Fathers) and photographer.
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