LAWFARE
David
Remes on His Latest Trip to GTMO
By Benjamin Wittes
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.
