Defending Due Process for Guantanamo Detainees

Article excerpt

Defense attorneys for Guantanamo detainees stand up for due process despite hate mail, threats, and Dick Cheney's daughter.

At first, Joshua Colangelo-Bryan didn't know whether his client was a terrorist. Jumah al-Dossari had been rumored to work with Al Qaeda and to have fought for Islamic causes around the world. His name was familiar to anyone following the news after 9/11.

But Mr. Colangelo-Bryan, a Manhattan corporate litigator doing pro bono work for Mr. Dossari, needed more: "Certainly I'm not going to conclude that someone is a terrorist on the basis of Google," he said. He'd faced accused war criminals before, working with the United Nations on the prosecution of war crimes in Kosovo. But Guantanamo, the US naval station in Cuba where detainees in the war on terror are held, was new territory.

"This kind of offshore penal colony is not something that we do very often," he says. He was drawn initially to the legal challenge - "the novelty and cutting-edge aspect of it. There was also what seemed like the fundamentally unfair notion that the government was holding people just because it said they should be held, without any form of due process ... so there were important principles at stake."

Still, the first time he flew to Cuba to meet his client, he didn't know what to expect: "I walked into this little room for my first-ever meeting with a Guantanamo Bay detainee, worrying maybe I was going to have some lunatic jump across the table and try to choke me. Instead, there's this slight, smiling, shackled man sitting there who introduces himself as Jumah, and within 10 minutes, we're talking about the fact that his favorite movie is 'Jumanji.' "

Colangelo-Bryan was one of roughly 500 lawyers, many of them private attorneys working for no fee on the cases of Guantanamo detainees. They may be the most unpopular defense lawyers in America. They're harassed on the phone, get hate mail and e-mail, and some get death threats.

They've also come under fire from Liz Cheney, daughter of former Vice President Dick Cheney, whose political action committee recently released a Web ad implying that Department of Justice lawyers with prior experience defending detainees sympathized with terrorists. The ad calls them "the Al Qaeda-7" and questions the loyalty of the entire department, asking, "DOJ: Department of Jihad?"

Prominent conservatives have criticized the ad, saying in an open letter, "The American tradition of zealous representation of unpopular clients is at least as old as John Adams's representation of the British soldiers charged in the Boston massacre."

Indeed, the right to due process implies that someone has to defend the "bad guys." The Rosenbergs, executed as traitors in 1953, had lawyers. In 1977, the neo-Nazis of Skokie, Ill., had Aryeh Neier, a Jew who saw himself as defending free speech.

While some conservatives debate whether detainees deserve due process, the Supreme Court, in two rulings, established that detainees have the right to hear the accusations against them, to a lawyer, and to a trial. The Obama administration is expected to decide shortly whether those trials will be held by military commissions or in criminal court.

Due process admits something that the court of public opinion, in the heat of the moment, may not: The "bad guys" may not be who everyone thinks they are. That's possible even in Guantanamo Bay: Of the 779 imprisoned there since 2000, 705 have been released or cleared for release. Of those remaining, 30 are scheduled to be prosecuted.

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When Colangelo-Bryan opened the files, he didn't see much to prosecute. "There were no transcripts of phone calls that had been intercepted involving [Dossari]. There were no photographs of him with [Al Qaeda leader Osama] bin Laden. There were no fingerprints on incriminating materials. There was really nothing that any judge would consider reliable evidence," he says. …