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Gitmo Litigation: More Kafka Than Kafka

This Sunday magazine piece from The Chicago Tribune, The Guantanamo Labyrinth, by Tom Hundley, is the best description I've read of what it is like to be a lawyer representing a Guantanamo detainee. The story focuses on Candace Gorman, a Chicago lawyer with "a pronounced soft spot for underdogs and seemingly hopeless causes," who shut down her regular law practice two years ago to devote all her attention to two clients, both Guantanamo detainees. She makes no money from these cases, incurs enormous out-of-pocket expenses, and "knows there is no pot-of-gold settlement waiting at the end."

But she carries on. Last year, she took a temporary position with the International Criminal Court in The Hague to earn some income and lives there still as she continues to fight for her two clients. When she first took on the two cases, "the task ahead of her seemed pretty cut and dried," Hundley writes. "After all, the Supreme Court, in the 2004 Rasul decision, had firmly rejected the Bush administration's claim that U.S. courts did not have jurisdiction to hear cases against the Guantanamo detainees." Five years later, Gorman is still trying to get the two their day in court.

One obstacle blocking the way of Gorman and every other Guantanamo lawyer is the "byzantine thicket of rules and procedural dead ends that would have impressed Franz Kafka."

The typical drill goes like this: After meeting with clients in Guantanamo, lawyers are obliged to immediately turn over all of their notes to the government for inspection. The inspection can take weeks, and when copies of the notes are finally returned to the lawyer, large sections often are blacked out. The unredacted originals are kept at a secret "secure facility" outside Washington where they can be viewed by defense counsel but not removed. Government lawyers' briefs are deposited at the secure facility, and defense attorneys have to travel to Washington to see them (lawyers are not allowed to reveal the precise location of the facility). For a storefront attorney such as Gorman, travel costs can add up fast.

Let's say Gorman wants to review the written record of accusations against her clients. She must again travel to the secure facility. If she wants to use this material in preparing a defense for her clients, she must do all her work on secure government computers at the facility and use the facility's secure printer. If she uses her own computer at the facility, that computer becomes "tainted" and is subject to confiscation. Defense lawyers are not permitted to file any document with the court without first submitting it to the Court Security Office, which then shares the document with the government's lawyers. At times, the government's obsession with security borders on the absurd: When defense lawyers work on detainee cases in their own offices, they are supposed to draw the shades.

Gorman tells Hundley that, yes, she re-read Kafka during the course of her work on these cases. "Guantanamo is more Kafka than Kafka," she said. I've talked to several lawyers who represent detainees or who have been to Guantanamo for other reasons. But this article gave me a better sense of what it is actually like to be fighting in those trenches than conversations with any of them ever did. 

Posted by Robert J. Ambrogi on May 12, 2009 at 12:20 PM | Permalink | Comments (1)


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