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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.