March 10, 2009, The right to not be heard
Guantanamo detainee Ghassan Abdullah al-Sharbi successfully moved to dismiss his own habeas corpus proceeding, on the ground that he did not want to participate in the process that he believed is entirely a sham. My interview with his now former attorney Robert Rachlin is here. BTW... given the astounding results to date... after over seven years, exactly three detainees have been released pursuant to habeas corpus order (while around two dozen more have been ordered released at one time or another, but are still at GTMO... with still over 200 in the hopper...), Mr. Al-Sharbi may have a point.
Al-Sharbi, one of the handful of men actually charged by the military commissions (in his case, with the nonexistent war crime of "conspiracy to commit war crimes") has steadfastly intended to refuse all counsel from the get-go, as Mr. Rachlin told us in his interview. Evidently, the district court in Washington accepted that, notwithstanding the harsh conditions of his confinement and possible abuse, that al-Sharbi could, nonetheless, freely refuse counsel, and refuse to participate in his case, despite the potential that such action was not fully "voluntary".
And just as I observed that it seemed off for the 9-11 conspirators to be permitted to confer with each other, alone, without counsel, when other [per se "less guilty" and certainly less dangerous] detainees have to exist in perpetual isolation, and indeed, with their attorneys only one at a time (and chained to the floor at that), I am bemused by the use of closed circuit video feed from Guantanamo in federal court. This is an extremely unusual circumstance; usually attorneys must mail their papers to a secure facility in Virginia from Guantanamo, and then relay things to the Court, all of which usually entail tremendous delays, typically of at least weeks, between a detainee telling his lawyer something and the lawyer conveying that to the court.
This use of video feed, representing actually hearing directly from a detainee, has not, as far as I know, been made available for, say, detainees who might be arguing about their medical care or other confinement issues or perhaps, to give evidence in support of their own claims of reasons why they are being held unlawfully. Instead, it is used, to my knowledge for the first time, but likely for one of the first times, so a detainee can dismiss his case.
Sadly, this seems to be part of a new Government tactic, as Candace suspects, of using every procedural dodge available to try to dismiss habeas cases.
Just as the Obama Administration has promised "transparency" and its much vaunted public relations promise of "closing Guantanamo" by next January... it instead behaves as if it intends to keep the GTMO mirth and merriment going indefinitely... the same stand as its predecessor. Obviously, at "day 50" of the Obama Administration, it's too early to draw any conclusions of anything... so I'll just remind [my college classmate] President Obama that "hope is not a policy"... "change" had best mean change... Mr. President, while your words are soaring and all... you will ultimately be judged by your actions.
Update (3/11/09): Candace spots something extraordinarily troubling: the Obama Administration may take the same position the Bush Administration did with respect to habeas corpus proceedings... where the government concludes a detainee is improperly held and should not be released, such a finding would purportedly divest courts of jurisdiction to do anything besides make an academic finding... only the mighty emperor dictator President can decide to actually release a wrongfully detained prisoner. [Judges? JUDGES? We don't need no stinking judges!]
And, as if this were not enough to truly give one pause... could we be seeing the reemergence of the dreaded signing statement?