LAWFARE

David Remes on His Latest Trip to GTMO

By Benjamin Wittes

Sunday, August 26, 2012 at 9:34 AM

David Remes, who represents several Yemeni clients at Guantanamo Bay, writes in with the following reflections on his latest trip to Guantanamo:

David Remes’ Latest GTMO Adventures

I returned from GTMO on Thursday, unexpectedly soon. I had flown down on Monday for an extended visit, but the visit was cut short when I and others were evacuated in the face of the threat from Tropical Storm Isaac.

A surreal flight back

We boarded a chartered commercial jetliner, bound for Andrews AFB, which is how the military ferries habeas lawyers and individuals associated with military commission cases to and from the base. On board were members of families of 9/11 victims, military commission judges and officials, commission prosecutors and defense counsel, translators, and, at the very rear, NGO observers and the media, and me. Aptly, all involved in this sad drama, except the detainees themselves, were bound together in this self-contained reality.

Before the cabin door was closed, crew members came down the aisle and told those of us in the last 34 rows (the media, observers, and me) to relocate to empty seats further up, to make room for a contingent of prisoners. We were incredulous, but we had heard this from the crew, and we anticipated a spectacle. Journalists began twittering and unpacking recording devices. I planted myself in row 33, expecting to see some of my clients. After about 15 minutes, crew members returned to tell us that it was all a misunderstanding and we could return to our original seats.

Quis custodiet ipsos custodes?

As usual, in my two days of client meetings, I had an escort, courtesy of the Joint Task Force. Habeas lawyers must be escorted at all times. Commission lawyers, by contrast, may roam at large. This time, however, my escort had an escort – an Army Legal guy – presumably to keep the escort on his toes.

Someone must have instructed the Army guy never to let me out of his sight. A literalist, he trailed me everywhere – into the Subway’s, into the McDonald’s, and even up and down the aisles of the NEX, the base’s supermarket. He was never more than 10 feet behind me. He stood close by when I was at the magazine rack in the back picking magazines for my clients.

The incredible shrinking meeting schedule

In the two days I spent with clients at GTMO this week, I spent the maximum time currently allowed – 5 hours a day. In the beginning, however, when lawyers started visiting the base post-Rasul, they were allowed to meet 9 hours a day, seven days a week – a weekly total of 63 hours. See Shayana Kadidal, “Confronting Ethical Issues in National Security Cases: The Guantánamo Habeas Litigation,” 41 Seton Hall L. Rev. 1397, 1409-10 & n.50 (2011) (final proof). Today, a lawyer can work only 5 hours a day, as noted, and only 5 days a week – a weekly total of 25 hours.

Let’s not go all the way back, though, but instead start with the January 2008 schedule. Under that schedule, a lawyer could meet with clients 6.5 hours a day (9 am—11:30 am and 1—5 pm) five days a week – a weekly total of 32 hours. But we were also allowed meetings on weekends, if we had a good reason, and during lunch and prayer times. A lawyer working a seven day week could easily clock 42 hours. We took the 5:30 pm ferry back to the leeward side of the Bay, where we live, allowing us time to shop for dinner at the NEX before leaving.

(Actual meeting time under the January 2008 schedule was less than 6.5 hours a day, due to the time we lost passing through the security checkpoint; hassling over what papers we might bring into our meetings; waiting for the guards to bring clients to the interview sites and then “secure” them; getting ID badges, and simply being driven around.)

A new schedule, issued in April 2011, cut our meeting time from 6.5 to 5 hours a day. So it has remained. The current boundaries are 9:15 am—11:30 am and 1:15 pm—4 pm. We are not allowed to meet with clients on weekends or during lunch or prayer times, leaving us just 25 hours a week for client meetings (assuming no slippage), versus the original 63 hours per week. We must also take the 4:30 ferry back to leeward, leaving no time for counsel and translators to shop for dinner.

The current schedule is the current commander’s idea of reasonable client access under the protective order that in GTMO habeas cases since 2004. I shudder to think how he might exercise his discretion under the Memorandum of Understanding (MOU) that the government is now trying to foist on detainee lawyers and their detainee clients. At least the protective order is supervised by the court. The MOU makes the commander a law unto himself.

Links to Lawfare’s excellent coverage of the protective order/MOU dispute are provided here.