Mind your rights, Gitmo lawyer says
Published 12:26 pm Saturday, April 26, 2008
Under current law, even a U.S. citizen could be seized and held indefinitely as an enemy combatant.
“Anyone could be taken, even if they’re nowhere near the war,” attorney Joe McMillan told a Bainbridge High School crowd Tuesday night. “It could be someone from Bainbridge Island.”
Which is one reason why everyone should be concerned about legal precedents being forged in the war on terror, said McMillan, a Bainbridge resident and lawyer for Guantanamo Bay detainee and former Osama bin Laden driver Salim Hamdan.
McMillan, a guest speaker for the BHS Amnesty International Club, was welcomed by a crowd of more than 100.
He said that though his client’s challenge of U.S. military tribunals had won out in the Supreme Court, U.S. anti-terror laws maintains a frightening disregard for the civil rights, and Guantanamo Bay remains a judicial no-man’s-land.
“It has been described by one government official as the legal equivalent of outer space,” McMillan said.
His client’s legal odyssey began in 1996 when the young Yemeni’s citizen was looking to help his “muslim brethren” in jihad. After failing to enter Tajikistan, friends introduced him to Bin Laden, who needed a driver on his estate in Afghanistan.
Hamdan went to work driving agricultural trucks, and occasionally drove bin Laden himself.
Following the U.S.-led invasion of Aghanistan in 2001, Hamdan was captured by Afghan rebels as he fled for Pakistan with his family. He was sold for a bounty to U.S. troops and interrogated.
He admitted to driving bin Laden, but denied any involvement in any acts of terror.
“His close association with bin Laden is enough, apparently, to convince U.S. personnel that he had participated in the terrorist attacks or, in some way, had harbored bin Laden,” McMillan said.
In 2002, Hamdan was shipped to the U.S. detention camp at Guantanamo Bay, Cuba, where he has been held ever since.
A Navy attorney, Lt. Commander Charles Swift, was appointed to defend Hamdan. But McMillan said Swift was ordered to “negotiate a guilty plea” before President Bush’s newly created military commission.
Swift refused to cooperate. Instead he filed for a writ of habeas corpus, essentially demanding the federal government declare their case against Hamdan, and challenging his detention as unlawful. Swift’s request was quickly rebuffed.
“The position of the U.S. government was ‘no law applies’” McMillan said. “Guantanamo is outside the law.”
So Swift sued the administration, calling on McMillan’s law firm Perkins Coie of Seattle, to secure Hamdan a hearing in the 9th Circuit, which had not yet ruled on habeas corpus rights for detainees.
“This is why Swift is a hero,” McMillan said. “It’s not a career advancing move if you are an official in the U.S. military, to sue the President of the United States.”
McMillan and a legal team from Perkins Coie, working pro bono, helped Swift launch a three-pronged challenge to Bush’s military tribunal system.
In Hamdan v. Rumsfeld, they argued first that the president did not have the constitutional authority to create a judicial body. Second, that the military commission did not comply with the U.S.’s own code of military justice. And finally, that Hamdan had been denied rights for fair trial guaranteed by the Geneva Convention for a Prisoner of War.
In November of 2004, a district court agreed with their positions and froze the military tribunal in Guantanamo in the middle of Hamdan’s hearing. But soon after, an appellate board of judges, including Chief Justice John Roberts, reversed that decision, leaving McMillan and Hamdan’s legal team had just one last shot to argue their case, this time before the Supreme Court.
In November 2005, with Roberts abstaining, the Supreme Court handed down a 5-3 decision in favor of Hamdan, rendering the military tribunals unlawful.
It was a short-lived victory. Less than a year later, Congress passed the Military Commissions Act, restoring military tribunals with few added liberties for detainees.
McMillan said Hamdan is being held alone a 10-by-6-foot cell in Guantanamo, in a state of legal limbo.
Of the more than 300 terror suspects held at Guantanamo, Hamdan is one of only two charged with a crime.
But more is at stake than one man’s guilt or innocence, McMillan said, because the government is denying universal legal rights, most importantly those of habeas corpus.
“It’s called the Great Writ, it is the most exalted writ under law,” he said. “It’s something people have fought for for generations and it can’t be let go.”
