I apologize for my extended absence. My work in private practice is often prohibitively time consuming. Part of my absence was also due to an week long trip to Guantanamo Bay, Cuba to meet with my clients. Unfortunately, until my notes are declassified by the government, I am unable to discuss those meetings, however, I can discuss Gitmo generally and discuss information from our clients that has been declassified from our last trip to Cuba.
It has become clear to me that the stories of abuse and torture of the GTMO detainees have recently fallen victim to (1) public torture fatigue, and (2) a feeling that it is okay to torture detainees in order to save innocent lives. Obviously, I think this is disturbing, BUT, I don't plan on using this post to fight these understandable feelings. Having said that, I DO want to note that these individuals have never been abused to find out information to save lives. Much of the unclassified factual returns released by the government indicates that the government has been primarily interested in finding out individual stories of the detainees. Exactly the type of information you would use to prosecute an individual for a crime (a crime that has already taken place). Unfortunately, those crimes are not taking place.
What I want to discuss is a different kind of abuse. One that may resonate more with average Americans. That abuse is the abuse of the attorney / client relationship. A recent NY Times article discusses several instances where detainees have been harshly interrogated after meeting with their attorneys, have been questioned about privileged conversations with their attorneys, and where the goverment has taken attorney-client mail has been taken by the government.
Interfering with the attorney-client relationship is the clearest way to undermine an adversarial system of justice. While I was in GTMO our military escort asked me why we defend individuals he clearly thought should be locked away forever. I told him that the U.S. has an adversarial system of justice and that as part of that system, those who believe in the rule of law believe that between two sides working fervently for their clients, the truth will rise and justice will be done. Not a perfect system by any means, but a system that has served us well. I told him that for every day I am working to free our detainee clients there is someone over at the government working feverishly to keep them detained. I don't feel any anger toward that government employee, because he is a part of a system from which I believe justice springs.
Anyway...interfering with an attorneys access to privileged communications with his client undermines this adversarial process. Undermining this process retards the balanced element from which the truth can arise. It is also symbolic of the larger struggle of these detainees to get a habeas hearing where the government is forced to explain their detention. The true tragedy of these detentions lies not only in physical incarceration, but in the unilateral justification which has not been probed by the justice system.