Friday, January 28, 2005

Right to Habeas, No Right to Disclosure of Identity?

There has been much discussion about "ghost detainees" and the "forcibly missing" individuals in the war on terror, but there is a larger issue that is right under our nose. Specifically, the U.S. claims somewhere in the range of 550 - 600 detainees at Guantanamo Bay, and Rasul and its progeny give those detainees both a right to some due process (although how much is being debated) and a right to counsel. Currently, only about 60 of those detainees are being represented by counsel. So why aren't the rest represented by counsel? For a very practical reason...their names have not been disclosed by the government. Without knowing who the individuals are, it is nearly impossible for an attorney to find a "next friend" for habeas purposes.

Query (as my old Torts professor used to start most of his sentences) is it possible to have a right to habeas and a right to counsel, but NOT to have a right to have your name disclosed as being held? Seems rather doubtful under U.S. habeas jurisdiction (not to mention international law which is being willfully disregarded). Alas, ours is not to reason why...but to actually do something about it. So the question now turns to whether permissive joinder of John Does 1-500 is possible or whether a habeas class action can be obtained. Stay tuned.

DISCLOSURE: I represent several individuals detained at Guantanamo Bay.

1 comment:

JMoore said...

So what happened to that RICO suit? Were they granted class action status? I googled it but couldn't find any up to day news.