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Reporter Envy (Or Why a Guantánamo Attorney Dreams of Being a Reporter)

I really would like to see exactly what goes on at those hearings. I often imagine they are all laughing to themselves at the absurdity of this process... I would like to see for myself.
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I was a journalism major for three semesters in college, before I moved on to something more practical, philosophy. And now, after being an attorney for almost 25 years, I find myself wishing I had gotten that degree in journalism instead of philosophy. I go to bed dreaming of being a reporter. I dream about sneaking press credentials. I wonder if I can get anyone to give me credentials as a favor.

These weird dreams began shortly after I was in court on one of my Guantánamo cases. I have two clients and over the summer when I was getting ready to visit my first client for the first time, I filed an emergency motion in front of a second judge asking him to allow me to see my other client while I was down at the base. I explained that I was a solo practitioner (not from a big firm) that I was paying for this on my own and it would be cost effective if I could see both clients at one time. The good judge granted my motion.

I got to the base and to make a long story short, I didn't get to see my second client. When I explained to the officials at the base that I received a court order shortly before arriving, allowing me to see my second client during the same visit, I was told "judges' orders don't work here, we consider those only advisory." I just smiled politely and wrote down that little quote. As it turned out the court order didn't work. I guess they decided not to take the advice of the good judge.

First, I was told that the name they had for my second client was different than the name I had given. Then I was told that he was from a different country than I had listed. I was told there was no way he was the right guy. I was leaving the next morning so I gave an official a piece of paper with a couple of different possible spellings of my client's name. I asked him to give me the name of whoever was on their list so that I could sort out the identification problem when I got home. That evening another attorney brought me correspondence from the official. It was the same piece of paper on which I had written the various spellings of the detainee's name, beneath these they had written the spellings they had for his name. They were the same - there had been no identification problem.

Judges don't like their orders disobeyed. They don't consider their orders "advisory." I filed papers in front of the judge asking the judge to enter what we lawyers refer to as a "rule to show cause." It means that the other side has to come to court and explain why they should not be held in contempt of court. The judge entered the Rule. We had a hearing. The department of justice filed an affidavit from some higher-up at the base that I had never met or spoken to. He swore, under oath, that I really did not want to see my second client. That instead of seeing my second client I wanted to (prepare yourself) go bird watching. This individual also said that I refused to see my client because he did not speak English and that I also refused to see him because he was not the brother of my first client. Wow, how weird is that? I had never imagined that my clients were brothers. Fortunately, the judge did not believe one word in the government's affidavit and told the government to arrange to get me to the base, at their expense. One point for the little lady.

This is when my dreams of being a reporter kicked into action. The government attorney emailed me right after court and offered to have me flown on a military plane the following week. He explained that this was a plane that was reserved for the press. When I got back to Chicago and saw the email I immediately wrote back and said "yes."

I guess someone thought better of sending me on a plane with the media (or maybe they were hoping that I wouldn't want to go with less than one week's notice on the Thursday before Labor Day weekend - then they could tell the judge I refused their fair, considerate, generous offer?). After I said yes, the attorney wrote back and said that he just learned I was not allowed to fly on that plane because it was only for the press. I emailed him back and said that restricting me from the plane because I was not a reporter was ridiculous and that they should reconsider their offer to me. (Maybe I should have mentioned those three semesters when I was journalism major). They would not budge. I would have to go to Guantánamo the same way all of the other habeas counsel were forced to get there: fly to Fort Lauderdale and then fly on a small private cargo airline to the base - a three hour flight without a toilet. (Don't even ask why it takes three hours to get from ft. Lauderdale to Guantánamo....)

When arrangements couldn't be made between the government and myself for a trip to the base on their dime, I had to go back to see the good judge. I explained to him that they offered me a trip to the base on a military jet that they provide to the press which I accepted,but then they reneged on the offer. The judge looked at the government attorney and asked why couldn't I be put on that plane (I later learned that they had similar planes available for the press quite regularly). The government explained that the plane was only for the press and habeas counsel were not allowed on it. The judge asked why? And here it is: the government attorney said that they give a briefing to the press that habeas counsel are not allowed to hear. (Perhaps they don't want habeas counsel to correct the many lies being told to the press?) The judge looked at the attorney and very calmly stated "when you tell the press you are telling the world." However the government wouldn't budge on this and the judge finally ordered them to work something out to get me there.

I really wanted to fly on that plane. I wanted to hear what it is that habeas counsel are not allowed to hear. I wanted to fly on a jet instead of a cargo plane. And, yes, I wanted a toilet.

But it turns out that this is not the only perk for the press. I have now learned that the press is allowed to witness the detainees' Combat Status Review Tribunals (CSRT's) and the Administrative Review Boards (ARBs). These "hearings" are held to determine if a detainee is an enemy combatant or a non-enemy combatant and to determine if the detainee is a danger to the United States. Not only are the habeas lawyers not allowed to witness or participate in their own clients CSRT's and ARB's, we have to fight like hell to get the paperwork from those proceedings. They are classified. They are secret. Somehow releasing them will destroy the security of our only the military and the press can watch the actual proceedings.

Many of the habeas counsel have not been able to get copies of the files from the CSRT's and the ARB's and so we have no clue as to the reasons that the government claims our clients were picked up in the first place and why our clients have been designated enemy combatants (if in fact they are designated as enemies). In my first client's case, the judge did order the government to turn over the CSRT documents to me and what I found out from reading them was that my client was found not to be an enemy combatant. Washington turned that bad ruling around... they couldn't have my client sitting around for 3 years and not be an enemy combatant... so they got themselves a new panel and lied and said they had new evidence (five weeks later!) and declared him an enemy combatant after all. I can tell you there was no new evidence, it was all a crock.

In October, one of my clients had his annual ARB. He sat in a little room and answered the bizarre questions that these idiots asked, hoping maybe this time they will set him free. I, of course, was not allowed to attend this hearing. They wouldn't even tell me when it was going to take place and I don't know if I will ever get to see the paperwork from that hearing. But somewhere in the United States... or perhaps in Europe or Asia (the press do not have to be US citizens or be subject to the same security clearances as the habeas attorneys) are members of the press that were allowed to watch my client's hearing and write about it.

So I dream about being a reporter. I dream of being able to go and watch (although the part about sitting quietly probably wouldn't work so well for me). But I really would like to see exactly what goes on at those hearings. Who is sitting where, what is being said. I would like to look at the demeanor of the panel members... I often imagine they are all laughing to themselves at the absurdity of this process... I would like to see for myself.