Detainee’s lawyers now have grounds for hope
by Dan Heilman
U.S. Supreme Court case, upcoming election may propel process.
In the winter of 2002, when Minneapolis attorney Nicole Moen was still in law school, her federal courts class didn’t spend any time discussing the Guantanamo Bay military prison, even though the facility had been recently opened for the purpose of housing detainees deemed enemy combatants by the U.S. government.
“We talked in general terms about habeas corpus, jurisprudence and separation of powers and whether it was possible for Congress to constitutionally strip federal courts of their habeas jurisdiction,” Moen recalled. “At that time, that was kind of an academic, esoteric question — the legal scholar equivalent of ‘How many angels can fit on the head of a pin?’”
In the intervening five years, Moen has had a close-up view as those issues have gone from theory to reality. Moen and a corps of other attorneys from Fredrikson & Byron have been helping to represent Ahcene Zemiri, a detainee at the Guantanamo Bay detention camp in Cuba since April 2002.
Since the beginning of the war in Afghanistan, 775 detainees have been brought to Guantanamo. The number of detainees has been cut drastically over the past couple of years, down to about 275 now. But a number of those detainees, including Zemiri, are still being held while volunteer lawyers pursue writs of habeas corpus on their behalf.
“He’s had very little hope in the courts, and he has zero faith in the judicial system down there,” Moen said of Zemiri. “What’s continued to happen has been fascinating from an academic standpoint of constitutional law and habeas corpus. But for him, the bottom line is that he’s still there.”
Hanging in there
A team of Fredrikson lawyers first visited Zemiri in Guantanamo in early 2005, and Moen and fellow Fredrikson attorney John Lundquist visited him again this January to update him on his case. His situation hasn’t changed very much in the intervening three years. He, along with many of the retaining detainees, has been moved into Camp 6, one of the complex’s maximum-security facilities. That means isolation for all but two hours a day.
Despite that, said Moen, “he’s holding up well. Some of the other detainees are exhibiting a whole host of psychological issues that comes with extended periods of time in isolation. But our guy is hanging in there.”
Some recent and pending developments are giving Zemiri and his pro bono advocates hope. The most prominent is that the case of Boumediene v. Bush, argued before the U.S. Supreme Court last December, is due to be decided by the end of June. The case is a writ of habeas corpus submission on behalf of Lakmar Boumediene, a naturalized citizen of Bosnia being held in extrajudicial detention by the United States at Guantanamo.
The Supreme Court granted Boumediene and his co-defendants a writ of certiorari late last summer, a move that was followed by a flurry of more than 20 amicus briefs filed on his behalf by the American Civil Liberties Union, the American Bar Association, a number of retired military officers and others.
When similar cases have gone before the Supreme Court, in 2004 and 2006, the court has found that the U.S. government’s executive branch lacked the authority to deny captives access to the American justice system — only to have Congress pass anti-terror statutes restricting further writs of habeas corpus from Guantanamo detainees.
The Fredrikson lawyers feel that a positive outcome in Boumediene should have a ripple effect for other detainees, including Zemiri.
“There will be lots of coverage and analysis on what the Supreme Court rules and what the administration might do in response,” said Fredrikson attorney James Dorsey, who is also working on Zemiri’s case.
“For the first time, the constitutional issue is pretty squarely presented,” said Moen. “Congress has had to rewrite the law twice in response to those earlier decisions. So now for the first time we have statutes that the court’s going to have to address head-on.”
A court decision in favor of Boumediene could lead to “a knockout win for the detainees” because they could then be allowed to file their habeas corpus petitions in federal court.
“If that happens, all of us who have petitions in federal court know the court is going to have to have an evidentiary hearing, which means the government will have to bring our detainees into court and will have to put on whatever evidence they have in each case,” she said. “And we’ll get a chance to see it and rebut it.”
A diplomatic approach?
Another relevant development at Guantanamo is that the prison’s military commissions are starting up, with two prosecutions underway and a handful of others standing by, according to Dorsey.
“To our knowledge, Ahcene has still not been charged, nor do we expect that he ever will be,” he said.
Then there’s the upcoming presidential election: All three remaining candidates have said they would like to see the Guantanamo prison camp closed.
Even so, the release of remaining detainees will depend in part on diplomatic negotiations, something that could be a sticking point for the Algerian Zemiri.
“Presumably the U.S. and the Algerians are still talking about terms of release for most or all of the Algerian detainees, but we are not privy to those discussions,” said Dorsey.
Moen pointed out that the United States historically hasn’t had very good diplomatic relations with Algeria. “And we don’t have an extradition treaty with them, so none of the Algerians are going home anytime soon,” she said. “Assuming the court goes our way, and after the election, it could still take a while to get the detainees out of there.”
But the obstacles are by no means insurmountable. In fact, U.S. government officials are capable of addressing those diplomatic issues anytime, Moen pointed out. “It’s a question of how badly they want to.”
