Bar News - June 18, 2010
Bar Members Discuss Guantanamo ‘Trials’
By: Dan Wise
Update - After this article was written, the ABA commented in opposition to pending legislation that includes a "provision...directing the inspector general of the Department of Defense to investigate lawyers representing Guantanamo detainees." See ABA President's letter.
Gitmo panel: (left to right) Attorney Sabin Willett, Pierce Law Dean John Hutson and Robert Kirsch discuss the lack of due process encountered in representing detainees at Guantanamo detention facility.
New Hampshire’s legal community can boast that it is disproportionately represented in the ranks of attorneys who took up the unpopular cause of securing legal rights for detainees imprisoned at Guantanamo Bay naval base in Cuba.
On May 13, Concord’s Red River Theatre showed a 30-minute film that dramatically re-enacted a combatant status review tribunal conducted in 2004 at the facility where terror suspects rounded up during the early fighting in Afghanistan were being held, followed by a discussion with three lawyers who know the subject all too well.
Two attorneys with NH connections – Sabin Willett and Robert Kirsch – represented detainees in the hearings which were conducted under heavy legal constraints and after prolonged battles between the government and civil liberties advocates over the rights of detainees being held indefinitely at the offshore base. Also on the panel, Pierce Law Dean John Hutson, formerly the top legal officer for the Navy, has been speaking out nationally about the United States’ standing in the world and our civilian and military justice systems have been hurt by the treatment and deprivation of due process of the detainees. Speaking of the "war on terror" (a term that itself came under dispute at the program), Hutson said: "We won’t win this war if we are afraid of our own laws."
Following the showing of the film, the three lawyers discussed the situation and recounted their experience at Guantanamo, meeting with their clients.
Willett, a published novelist and lawyer who practices at the Boston firm of Bingham McCutchen, said the "deck was stacked" against the detainees at the hearings. "The judges [on the review panel] did not even have the details of the accusations, much less identities of the accusers," he said, pointing out that the film, "The Response" was too mild in its depiction of the hearings’ difficulties. In some of Willett’s cases (he helped represent six Uyghurs, Chinese Muslims), "When the panel ruled someone was not an enemy combatant, the authorities would hold another hearing… until they got the correct outcome." Even after they were set to be freed, the Uyghurs faced another hurdle as their home country did not want them returned if repatriated.
Kirsch, whose case went all the way to the US Supreme Court where he prevailed on his claim that the tribunal process was inadequate (by a mere 5-4 majority), reflected on the experience of being on the Guantanamo base.
"There was a big difference between being on the windward side where all the heavy stuff was [heavily secured prison facilities] and the leeward side which was where we lawyers were. I’d go in to meet my clients and have them tell me all this horrible stuff – all of which was happening in this physically stunning place. It was agonizing – you’re in the middle of this depressing situation that you can’t fix."
Kirsch, a Concord resident, is a partner in the law firm of WilmerHale in Boston. Also serving on the firm’s pro bono team representing Gitmo detainees is Stephen Oleskey, who grew up in Concord and graduated from Concord High School in 1960. Approximately 180 people remain confined at Guantanamo and the effort to close the prison at the base, boldly announced in the earliest days of the Obama administration, have foundered.