Khaled Abd el Ghabar Mohammed Othman is a Yemeni refugee who has been detained in Guantánamo for over eight years. His case is one of many where the government and habeas counsel have been in an ongoing dispute over the ability to have direct access to detainees to assess whether they in fact want to be represented by counsel.
Othman v. Obama was a petition for habeas corpus filed on behalf of Khaled Abd el Ghabar Mohammed Othman by his family members in Yemen as “next friends” (the traditional mode of challenging detention by the executive when the detainee has no way to contact counsel directly because he is held incommunicado from the outside world).
After the Supreme Court’s decision in Boumediene v. Bush, the government continued to fight bitterly to deny lawyers access to detainees who has not previously met with habeas counsel. The government demanded that after two attempted meetings—whether or not the detainee and lawyer managed to meet—counsel submit signed authorizations empowering the attorneys to proceed with the cases. Most Guantanamo detainees had been asked for years to sign statements handed to them by interrogators, rendering many of them naturally suspicious of American attorneys asking them to do the same thing with an unfamiliar legal form after two meetings.
In Othman’s case, the district judge held a status conference in December of 2008 at which this issue was discussed. Nearly every time counsel traveled to Guantanamo to see him, we were told that he “refused” to come out of his cell to be transported to the meeting rooms to see us.
One major reason for such “refusals” is that detainees are told, when a lawyer visits, that they have a “reservation” – the same term that is used for interrogation sessions. That, in fact, is one reason the note-writing process described above so often results in the client coming out: often clients tell us they thought at first they were being asked to go to an interrogation session. Moreover, the process of moving clients to meeting rooms sometimes starts in the middle of the night the prior day, or even earlier (in the past there have been cases of men moved to isolation for 11 days (in Camp Echo-1) to receive an attorney visit). The move is also quite unpleasant – involving hooding and often being driven about a random route in a windowless van – meaning that for many clients the cost-benefit balance sheet of meeting an attorney is negative, especially since for many years prior to Boumediene attorneys had little success in forcing release through the courts.
At Guantanamo, the military’s standard practice is to allow habeas counsel to write a one page (unprivileged, non-confidential) note, usually then translated by our interpreters into the client’s native language(s), which is then taken back to the cell and offered to the client. In the past the military would have interpreters read the note if the detainee would not accept it by hand; more recently the standard seems to be that the detainee is asked if he wants the note, asked if he wants it left with him, and then asked if he wants the note read to him, and if he does not give a clear affirmative indication, the military reports back to counsel that the detainee has “refused” the visit.
At the status conference held in this case in December 2008, we presented six options to Judge Richard Roberts for mechanisms that would better allow counsel to come to a fair evaluation of whether a detainee wanted counsel:
1. Translators could enter the cell blocks in person. Our translators could be allowed to walk back into the cell blocks of the prison and read out our note to the detainee. There is a small circle of translators who accompany most habeas counsel on visits to Guantanamo, and they tend to be as well known (and trusted) among the prisoners as the most active lawyers. Because literacy is a concern with the written note process, reading the notes out loud is much preferable to simply passing them to the detainee. (CCR had a client who had regularly seen us, but allegedly refused after a note was passed to him; we were told later by another detainee that our client had not refused our visit, and that no linguist was present to actually converse with him about what the note said.)
2. Counsel could enter the cell blocks in person. In most jurisdictions public defenders are allowed visual access to clients as a component of the client’s right to counsel. This allows the attorney to observe demeanor, make observations for use in evaluations of mental competence, etc.
3. The note itself should be treated as privileged legal mail. Because the notes are not treated by Guantanamo staff as privileged, attorneys are limited in how specifically they can characterize important developments or legal crises in the case in the note.
4. Counsel could be allowed to deliver letters from family members vouching for their trustworthiness and encouraging cooperation with the process (prior to an initial meeting with the detainee). Similarly, counsel could be allowed to deliver letters from home country lawyers or human rights groups, or letters from some of our other clients (either at the base, or released) vouching for counsel and the process.
5. Counsel could be allowed to call a “refusal” client at the base. This was done with certain detainees just prior to an authorization deadline in a case before Judge Urbina, and every client that had previously “refused” visits came to the room set up to receive calls, perhaps simply because the idea of a phone call was novel, and perhaps because the novelty conveyed to the detainees the seriousness of the occasion/situation.
6. The judge could directly contact the detainee. One thing that occasionally stands in the way of meetings with clients is the feeling that the habeas process is an elaborate sham and, as noted above, that there are costs involved in participating in it. If none of the other options worked, we suggested that the Judge might consider writing the detainee a letter indicating that, post-Boumediene, cases are now (finally) being heard on their facts, and he would need to meet with counsel if he wanted his case to move forward.
Counsel are continuing their efforts to get directly in touch with Mr. Othman.