While legal battle plays out, Guantánamo detainees wait

One year ago, the U.S. Supreme Court told the Bush administration that in America, even detainees swept up in the war on terror and held at the military's Guantánamo Bay prison camp were entitled to a day in court to contest their imprisonment.

But Faruq Ali Ahmed is still waiting. A young Yemeni picked up in Pakistan in 2001, he has been held since then, despite his insistence that he was doing nothing but teaching the Quran to children when war broke out. He is detained, in part, on the basis of accusations from a camp informant whom a military officer has denounced as an unreliable liar.

Like scores of other prisoners at the Caribbean outpost, Ahmed has a lawyer and has filed a court challenge to his detention. But the promise of the Supreme Court's precedent-setting decision in Rasul v. Bush last June 28 has yet to be fulfilled. Instead of court hearings, prisoners have faced a labyrinth of legal delay and a pattern of government resistance.

The anniversary of the Rasul decision comes amid rising concerns about Guantánamo. In place of court hearings for prisoners who claim they're innocent, the Bush administration has convened military tribunals, and military officers have found the military was correct in holding 520 of 558 prisoners as "enemy combatants." By last year only four detainees were charged in that system, and a federal judge halted the trials, ruling they lacked due process. The government appealed that decision, and an appeals court in Washington is expected to rule soon on the issue.

But the dozens of volunteer lawyers who filed court petitions for prisoners after last year's ruling say the tribunals — which excluded lawyers — were unfair and many prisoners are wrongly held.

At the same time, the government has fended off court intervention with a narrow, controversial reading of the Supreme Court decision — arguing that the ruling did not approve judges overseeing "war operations" — and has stymied the lawyers with a litigious approach and an obstacle course of security restrictions.

In court, they have faced resistance on such fundamental matters as whether lawyers have a right of access to their clients, notification if a client is designated for shipment to a foreign prison, and representation for prisoners who send forlorn pleas to the court on their own.

On the ground, the military has set up a system that delays legal correspondence for weeks and requires lawyers from around the country to write motions at a single, secure facility in Virginia. It has tried to redact detainees' claims of mistreatment from the public record. Detainees have alleged that interrogators have tried to turn them against their lawyers.

The Justice Department declined to comment on the charges of obstructive behavior. The Pentagon adamantly denies that it has interfered with lawyer-client relationships and says other steps are not designed to hamper prisoners' legal rights. "Simply put, these procedures exist to protect national security," said a Defense Department spokesperson.

Guantánamo was opened in 2002 as a repository for prisoners captured in the war in Afghanistan and its aftermath. The Bush administration said the prisoners were entitled to "humanitarian" treatment but not protected by the Geneva Conventions or U.S. law. Soon after, lawyers for a few detainees' families filed court cases seeking writs of habeas corpus — the centuries-old power that allows a judge to review the legality of a detention. The Bush administration said the courts had no jurisdiction, but a 6-3 Supreme Court majority disagreed last June.

Government resistance to carrying out the ruling began the very next day when the Justice Department told the trial judge handling the cases that it wasn't sure lawyers had a legal right of access to their clients at Guantánamo. She eventually ruled that they did, but it was Labor Day — two months after the Supreme Court ruling — when the first lawyer got to Guantánamo. That fight set the tone for the year just passed.

The government's position: The Supreme Court gave prisoners the procedural ability to file court petitions but not any substantive rights to assert once they got there. It argues the military tribunals resolved all questions on whether prisoners were properly held and now it wants to dismiss all the court petitions. That key issue is now before an appeals court.

Detainee lawyers, on the other hand, say the government has wrongly kept the fate of hundreds of men in the hands of tribunals answerable to the Pentagon.

In Ahmed's case, for example, he was accused of having wielded an AK-47 as a guard at Osama bin Laden's personal airport. He told the tribunal it was completely false, according to a transcript, but he wasn't told who accused him. Later, in an unusual step, Ahmed's military "personal representative" — an officer assigned to prepare each detainee for his hearing — attached a statement indicating a prime accuser was a camp informant who had lied repeatedly to get preferable treatment.

The Pentagon declined to comment on specific cases. But Ahmed's case and others like it, detainee lawyers say, reflect fundamental problems. Prisoners learn only general charges while the specifics on which panels rely are classified. They can't cross-examine or insist on witnesses.

While they believe such cases show fair hearings can occur only in courts, prisoner lawyers complain that the government has deployed an array of practical hurdles to make it as hard as possible for them to help their clients.

Lawyers, for example, have to wait weeks and months for security clearances. Any materials they want to bring to a detainee — legal papers, introductions from families — have to be submitted in advance for military screening and sometimes are prohibited or redacted. Family correspondence has been banned as "non-legal" material — because, some lawyers believe, access to it is a useful carrot in interrogations.

Once at Guantánamo, it takes the lawyers an hour each way to reach interview rooms. They can't use the Internet connection nearby. Everything clients say is presumed to be classified. Notes must be turned over to guards, and sent to a secure Pentagon facility in Virginia. At least once, interview notes were lost en route.

Lawyers from around the country all have to go to Virginia to review notes and write motions. They say decisions about what to clear can take weeks and don't always involve real security concerns.

While client correspondence is delayed, lawyers say, getting information from the military has been even harder. Some lawyers say that despite security clearances, they haven't gotten classified evidence used by tribunals. Others haven't been able to get client medical records that might document abuse.

Some of the most serious allegations focus on interference with the lawyer-client relationship. Several lawyers say prisoners have told them that guards and interrogators have looked at private legal papers, questioned them about their meetings with lawyers and suggested that inmates with lawyers will wait longer to get out. The Defense Department adamantly denies claims of intrusion into lawyer-client relationships. Other measures, it says, are overseen by courts and designed to ensure safety from dangerous men, not to hamper lawyers.

"It would be irresponsible for the Department of Defense to fail to take measures to ensure that the detainees are not a threat ... or that classified information is not inadvertently released," said the Defense spokesperson.