Defending the Defenseless

Lawyers face overwhelming odds when representing detainees


| January 18, 2007


Pentagon official Charles Stimson set off a media storm with his recent comments about lawyers who defend Guantanamo Bay detainees. The Deputy Assistant Secretary of Defense for Detainee Affairs called it 'shocking' that major law firms would stoop to defend alleged terrorists. He also insinuated that clients might show their patriotism by boycotting those law firms. The American Bar Association and others in the legal profession quickly lambasted Stimson for the remarks, and he has since apologized. But as recent news reports show, such ludicrous quips are the least of worries faced by lawyers defending inmates at the Guantanamo Bay Naval Base.

Writing for the Philadelphia City Paper, Doron Taussig profiles the efforts of one detainee lawyer and concludes that 'practicing law in Guantanamo Bay is a bit like complaining to referees in street ball. There is no law in Guantanamo Bay.' One factor contributing to this legal void is the total lack of precedent in the trials of detainees. Lawyers practicing inside the United States rely on precedents created by past decisions to construct their arguments. But Guantanamo Bay detainees are being tried by military commissions, during which legal precedents set in the country's federal courts don't apply. This situation, Taussig writes, thwarts almost any attempt to construct a compelling defense.

What's more, those shepherding detainees through this legal minefield are often lawyers who didn't choose to be on the case. Such is the case with Taussig's subject, Thomas Bogar, an Army Reserve lieutenant colonel who was chosen by the military to defend Abdul Zahir, also known as Guantanamo Bay detainee number 753. As a tax attorney -- not a trial lawyer -- and a one-time Republican candidate for school board, Bogar seems ill equipped to defend his client. But with an almost-naïve optimism and determination, he tells Taussig 'I intend to win.'

Such optimism isn't shared by H. Candace Gorman, a private lawyer voluntarily representing detainee Abdul Al-Ghizzawi. In an article for In These Times, Gorman voices her frustrations over the legal system devised for Guantanamo Bay. The government denies basic legal protections to detainees, such as the right to attorney-client privilege, and lawyers are routinely barred access to their clients. The system of bureaucratic obstruction and the lack of legal justification have led Gorman to conclude that 'there is no rhyme or reason to the world of Guantanamo -- only a cruel inhumanity.'

Go there >> The Advocate

Go there too >> Diary of a Guantanamo Attorney