“It just seems to me that with all the technology that we have that there has to be some way that can be accomplished,” said Walton. “Again, it’s the government’s decision to house this man at Guantanamo. The government does have the option of bringing this man to the United States and housing him here at a secure facility in the United States.”
“So, the government is going to have to make some decisions: either you provide the mechanism by which counsel can have this kind of telephonic communication with the client and if you can’t do that then the government may have to bring him here to the United States while the pandemic is in play,” added the judge, an appointee of President George W. Bush. “I don’t think the government can have — what my mother always said: you can’t have your cake and eat it, too.”
A Justice Department lawyer, Terry Henry, quickly told the judge that bringing Guantanamo prisoners to the U.S. is a nonstarter because the National Defense Authorization Act prohibits such transfers.
“I just want to clarify the government does not have the option to bring the detainee to the U.S. because of the statutory restriction,” Henry said.
Walton said that if the Trump administration could always ask Congress to change the law. “It’s not something you couldn’t at least attempt to do,” the judge said.
An attorney for Duran, Wells Dixon of the Center for Constitutional Rights, chimed in that his client would certainly be willing to leave Guantanamo for the first time in 13 years and come to the U.S. And Dixon said he believes the language in the NDAA is flexible enough to permit such a move. “If your honor were to order petitioner brought to the U.S. for the duration of the pandemic, we believe your honor would be able to do that consistent with the statute,” the lawyer said.
Walton ultimately gave the government 30 days to figure out a way for lawyers in so-called habeas cases to speak to their clients at Guantanamo. If that doesn’t happen, he said he’ll take legal briefs from both sides on whether he has the authority to move Duran to the U.S.
It seems unlikely that the Trump administration would acquiesce in such a move, especially during the pandemic or a presidential campaign, so the option of better telephonic or video links to the island prison seems more viable.
The main group of prisoners in Duran’s predicament appears to number about 10 — men who are considered high-value detainees, but not scheduled for trial by military commissions.
“I’m sure all would want the same kind of treatment. So, it’s not an easy answer,” Henry said.
Henry said arrangements for secure video conferences between military commission detainees and their lawyers are being considered by the military judges overseeing those proceedings.
Prior to the Friday hearing, Dixon described the Pentagon’s resistance to phone calls with his client as unjustified.
“It’s crazy. … It’s grossly unfair,” said Dixon. “It’s just a telephone call.”
The government, for its part, has warned that allowing such calls risks the disclosure of “top secret” classified information, like details about the CIA-led interrogation program that critics have described as torture and facts regarding the facility at Guantanamo where the high value detainees are held, known as Camp VII.
Justice Department attorneys and Pentagon and CIA officials argue that allowing detainees and their lawyers to speak on unclassified telephone lines poses an unacceptable risk that someone will obtain that classified information by intercepting or overhearing those communications. The claim is a curious one, detainee lawyers say, since detainees and their lawyers are permitted to discuss both classified and unclassified information during in-person meetings at Guantanamo.
“Unclassified, non-secure line telephone calls between Petitioner and his counsel risk the potential, unremediable disclosure of classified information on such calls and thereby present unacceptable risks to national security,” an unnamed CIA official wrote in a formal declaration filed in the habeas case brought by Duran, a 46-year-old Somali citizen.
Duran was captured in Djibouti in 2004. U.S. officials have accused him of casing a U.S. military facility there for a potential truck bomb attack, but he was never charged criminally for that and officials have said there is no plan to do so. He is considered one of Guantanamo’s so-called forever prisoners.
“I find it ironic to say the least that criminal defendants like Roger Stone and Michael Flynn are walking free while I can’t even get a phone call with my client, who is not charged with a crime and isn’t even designated for prosecution,” Dixon said in an interview Thursday.
Duran’s lawyers contend that military personnel who review notes and other materials taken in and out of Guantanamo by detainee attorneys could be placed on the phone calls to make sure only unclassified matters are discussed, but the government says that is an impractical and inadequate safeguard.
The chance of any of the remaining 40 detainees at Guantanamo winning actual release as a result of the pandemic seems remote. Even if a judge declared that a prisoner had “won” his habeas case, current legal precedent appears to preclude any detainees release in the U.S. Instead, a judge might order the State Department to push to release the prisoner overseas.
However, detainee lawyers say it is striking that the U.S. government seems willing to take a chance on essentially forfeiting the prisoners’ suits in order to prevent the detainees’ access to phone calls with their attorneys.
“The government is running the risk that the court could order their release. Whether that is likely or not, I don’t know, but they are running that risk,” said Dixon, one of Duran’s attorneys.
Detainee lawyers and the government are also at odds over the viability of in-person visits to Guantanamo at this time. The government says they haven’t been banned, but attorneys for the prisoners say the already cumbersome logistics of getting to the U.S. Navy-run base are now so complicated that visiting a client is all but impossible.
New arrivals at Guantanamo are required to do a two-week quarantine and flights sometimes only operate every week or two, Dixon told the judge, so a visit to one’s client there could effectively put a lawyer in physical isolation for a month or more.
“Although counsel would have the Court believe that detainee visits are impossible, they are not,” Henry wrote in a submission to Walton on Tuesday.
But Walton said it did sound like too much to make lawyers go through to spend a couple of days talking with their client. “I think it’s just too onerous for counsel to undertake,” the judge said.
Henry also complained in a court filing that Duran’s lawyers were seeking to hold the government “hostage … to counsel’s preferred method of communication.”
Henry said Duran’s lawyers are free to exchange letters with their client, although if classified information is involved, the attorneys would have to travel to a secure facility in the Washington area to see the letters.
The battle over access to Guantanamo prisoners comes as Democratic senators are expressing concern that Covid-19, the disease caused by the novel coronavirus, could endager the lives of prisoners there and put U.S. personnel at grave risk. The Navy acknowledged that at least one service member tested positive in March but has declined to release any detailed tallies, citing security concerns.
On Wednesday, Sen. Elizabeth Warren (D-Mass.), a member of the Senate Armed Services Committee, and 14 colleagues wrote to Defense Secretary Mark Esper, pressing him to explain how the prisoners and U.S. military personnel are being protected from the virus, especially given a strict legal ban on transferring detainees to the U.S. The senators noted that the virus can be deadly for individuals who are old or suffer from chronic illness, as many of the aging detainees increasingly do.
“We are concerned that our military personnel responsible for detention operations, as well as the detainees themselves, are at a heightened risk of contracting COVID-19 and suffering severe health consequences,” the senators wrote.
While most recreational activities for service members and their families were suspended in March, they were recently allowed to resume with social distancing measures.
Military commission proceedings which have proceeded at a glacial pace at the base for more than the past decade have also been suspended indefinitely due to the viral outbreak, although there has been discussion of using classified video conferences to allow lawyers in those cases to consult with their clients.
Prior to the pandemic, the Trump administration seemed stymied about what to do about Guantanamo. At various points during the 2016 presidential campaign, Donald Trump talked of sending more prisoners to the facility. In 2018, as the battle with ISIS escalated, Trump signed an executive order to spur planning for new transfers to the U.S. Navy base.
However, last September, Trump told reporters he thought the island prison was way too expensive. He stopped short of saying he was considering closing it, but indicated he was open to other ideas.
“I know about that,” Trump said at the time, referring to reports that it costs the U.S. about $13 million a year per prisoner to keep the detention center running. “I think it’s crazy. It costs a fortune to operate, and I think it’s crazy.”
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