New York Times
May 5, 2007
By William Glaberson
Many of the detainees at Guantánamo Bay, Cuba, are no longer cooperating with their lawyers, adding a largely invisible struggle between the lawyers and their own clients to the legal battle over the Bush administration’s detention policies.
Some detainees refuse to see their lawyers, while others decline mail from their lawyers or refuse to provide them information on their cases, according to court documents, writings of some of the detainees and recent interviews.
The detainees’ resistance appears to have been fueled by frustration over their long detention and suspicion about whether their lawyers are working for the government, as well as anti-American sentiment, some of the documents and interviews show. “Your role is to polish Bush’s shoes and make the picture look good,” a Yemeni detainee, Adnan Farhan Abdullatif, 31, wrote his lawyer in February.
Some of the lawyers accuse Guantánamo officials of feeding the detainees’ suspicions of the lawyers, a charge Pentagon officials deny.
Lawyers said many of the relationships appeared to have deteriorated as the detainees’ legal cause has suffered setbacks in Congress and the courts, and as Justice Department officials have begun efforts to limit lawyers’ access to detainees, raising new concerns among the detainees about their lawyers’ effectiveness.
“Every lawyer is afraid, every time they go down there, that their clients won’t see them,” said Mark P. Denbeaux, a professor at Seton Hall University School of Law who represents two Guantánamo detainees. “And it’s getting worse, because it’s pretty hard to say we’re offering them anything.”
The situation is awkward for the lawyers, who have become a considerable force not only in the courts but also in legislative, diplomatic and public debates about detention policies. Tense relationships or outright resistance from their clients could undercut their credibility and complicate their legal work.
The Justice Department, in a recent court filing, asked a federal appeals court to limit the number of times lawyers challenging detention could visit detainees and to allow officials to read lawyers’ mail to detainees. Some of the lawyers said that court fight would be likely to further weaken their ties to some detainees because it raised questions about whether their communications would be confidential and whether they would be able to continue to see their clients.
Some detainees are clearly cooperating with their lawyers and are engaged in regular dialogue with them. In interviews, some lawyers denied there were problems in their relationships with detainees or declined to discuss the difficulties, saying such information would embolden the government. But other lawyers estimated that a third or more of the detainees who have worked with lawyers in cases challenging their detention were now resisting cooperating with them.
Of 10 detainees publicly identified by military prosecutors as targets of possible war-crimes charges, many, if not most, either have refused American lawyers or are now uncooperative or uncommunicative, four of the lawyers involved in the war crimes cases said. Some of those detainees face possible life sentences.
“The relationship of the lawyers with many of the clients who still see us is very strained and tense,” said David H. Remes, a Washington lawyer at Covington & Burling, who represents 17 Yemeni detainees in efforts to challenge their detention.
At times, the lawyer-client battles provide an insight into detainees’ attitudes. Mr. Remes said one client grew furious when he learned his lawyers had interviewed his family members in Yemen to gather information for his case. The detainee assumed, Mr. Remes said, that his lawyers were acting as investigators for the American government.
Mr. Denbeaux said one client had pleaded with him to bring toothpaste. When he did on a later visit, military guards confiscated it and his client took that as proof that the lawyer was powerless. “I said, ‘They took it from me,’ ” Mr. Denbeaux recalled, “and he said: ‘What good are you? You can’t even get me toothpaste.’ ”
Neal R. Sonnett, a Miami lawyer who has been an American Bar Association observer at Guantánamo, said the deterioration of the relationships could become an issue as courts continue to sort through the thicket of legal questions presented by the administration’s detention policies. “Due process,” he said, “includes the ability of the lawyers to effectively prepare their cases.”
A Justice Department spokesman, Dean Boyd, declined to comment.
In the interviews, lawyers described differing reasons for the resistance from their clients, including what several lawyers described as depression or other mental illness, or resignation more than five years after the United States naval base at Guantánamo was opened as a detention camp.
Several said there had been cycles of wariness and peer pressure to reject American lawyers. Some of the lawyers said a new cycle might have gained intensity after a federal appeals court in February approved legislation Congress passed last year intended to strip the courts of the power to hear the habeas corpus cases, the main legal vehicle many of the lawyers had used to try to challenge their clients’ detention. Last month, the Supreme Court declined to review that ruling.
Some of the detainees’ comments, in writings given to the lawyers or recorded in their declassified notes, showed confusion about what role the lawyers were playing. Mohammed Nasser Yahia Abdullah Khussrof, a 61-year-old Yemeni, explained a common suspicion of the lawyers among the detainees.
“Some people don’t have full trust in attorneys,” Mr. Khussrof said, according to Mr. Remes’s notes. “They think you work for government.”
Several lawyers noted that in the war-crimes cases, defendants were assigned military lawyers who visit them dressed in uniforms similar to those of some of the jailers.
Clive A. Stafford Smith, a lawyer who represents 35 detainees, said one of his clients, Omar Deghayes, a Libyan, had said that in lawyer-client meetings at Guantánamo, “we all know that everything we say in these rooms is being monitored by them.” Military officials say they do not eavesdrop on those meetings.
Mr. Stafford Smith also said several of his clients had described what he said were efforts by Guantánamo officials to foster detainees’ distrust of the lawyers. He said detainees had described investigators’ telling them that their lawyers were Jewish or gay or that prisoners with lawyers were less likely to be released than those without them.
Mr. Stafford Smith and other lawyers also said clients had told them of investigators who posed as lawyers and then questioned detainees.
The military spokesman in Guantánamo, Cmdr. Richard W. Haupt, said each of those accusations was false. “It is our policy to in no way interfere with legal counsel,” he said. He said that military officials had worked to make it as easy as possible for lawyers to visit detainees and that there had been an increase in such meetings this year.
Court records show that the detainees’ concerns about whether lawyers’ mail will remain confidential may be based, in part, on experience. Officials acknowledged in court last year that during an investigation after three suicides at Guantánamo in June they seized written materials and personal items from all detainees, a total of more than 1,100 pounds, “including legal material and other correspondence.”
Although the detainees’ lawyers have had some notable successes in American courts, no detainee has been freed as a result of a court order. Some have come to rely on the lawyers as their only conduit to the outside world. But even in that capacity, the lawyers said, military rules have often made it impossible for them to satisfy simple requests.
Mr. Remes, the Washington lawyer for the 17 Yemenis, said military officials had barred lawyers from giving detainees rudimentary reading materials, including a Dr. Seuss book and “Jack and the Beanstalk.” Commander Haupt said lawyers were permitted to provide “properly cleared” reading material to the detention camp library.
Joseph Margulies, a detainee’s lawyer who teaches at Northwestern University School of Law, said the growing skepticism of some detainees was not surprising. “They don’t trust that we will be able to accomplish anything,” he said.