Yesterday we told you about the Obama Justice Department’s invocation of a sweeping state secrets privilege in a warrantless wiretapping case. But that may not be the only area in which the new administration’s war on terror tactics recall the worst excesses of the Bush years.
Last year, the Supreme Court ruled that detainees at Guantanamo had the right to appeal their detentions in federal courts. But since then, only a few cases have been completed. And in an interview with TPMmuckraker, David Cynamon — a lawyer for four Kuwaiti Gitmo detainees who are bringing habeas corpus claims against the government — said that the Justice Department has been consistently dragging its heels in the case, denying detainees their basic due process rights and furthering what he called the “abandonment of the rule of law.”
“The Department of Justice has been doing everything in its power to delay and obstruct these cases,” said Cynamon, whose clients were picked up in the Afghanistan-Pakistan region in the period after the 2001 U.S invasion of Afghanistan. “They’re not doing anything to move the case along, and doing everything to avoid it.”
Asked whether he had observed a shift of any kind in the government’s approach since the Obama administration came into office, Cynamon flatly replied: “None whatsoever.”
That has been, to me, the biggest disappointment and mystery. It did not surprise me in the slightest that the Bush administration would do everything in its power to subvert the Supreme Court’s ruling. I expected that. What I did not expect is that there would be absolutely zero change in the stonewall strategy when the [new] administration came in.
Cynamon said he didn’t expect to see a change “on January 21st.” But, “there’s been enough time now that you can’t simply say ‘it’s still operating on auto pilot from the previous administration’. So I have been disappointed and frustrated not to see a change.”
And he added that, based on conversations with other lawyers defending Gitmo clients, the government’s stonewalling strategy was being applied not just to his case, but more broadly.
Cynamon detailed three specific areas in which the government is stonewalling. First, he said, it has taken an unduly long time to produce declassified evidence. Indeed, in February, Judge Colleen Kollar-Kotelly ordered one government lawyer removed from the case for failing to comply with repeated orders to make the evidence available. In a court document, the judge wrote that the lawyer’s “compliance was not optional,” and added that the court “has serious concern about counsel’s ability to read and comprehend its orders.”
Second, Cynamon said the government is resisting requests for discovery, slowing things down by forcing defense lawyers to go to court at each stage. “Across the board they basically say no,” he said. “It’s whatever bullshit excuse - ‘it’s too burdensome, its not relevant, its beyond the narrow….”
But the government’s “most egregious” stonewalling tactic, said Cynamon, parallels the misconduct famously displayed by the prosecutors in the Ted Stevens case: It has consistently failed to produce exculpatory evidence in its possession, as it is legally required to do. “They have completely, in my view, ignored that obligation,” said Cynamon. “We have come across a number of items of exculpatory evidence that the government should have given us and didn’t.”
For instance, said Cynamon, one his clients had military commission charges issued against him, and as a result was appointed a military defense counsel, who has access to a secure government database. The defense counsel, Cynamon explained, “fairly quickly and fairly easily found some documents on that secure database that were very helpful and exculpatory and helpful to our clients…that should have been produced to us in our case.”
Cynamon said that Obama should be given credit for his pledge to close Guantanamo within a year. But he said that doesn’t address the core issue.
“The fundamental problem is that there has been a complete abandonment of the rule of law and a denial of the most basic due process, which is: ‘If you get thrown in jail, you ought to have the right to have an independent judge look at the basis on which you’re in jail to decide whether you should be there,’” he said. “And closing Guantanamo doesn’t address that, if they just end up getting transferred to prisons in other places.”
Cynamon continued: “What I have been hoping for, and am getting increasingly frustrated about, is to see that closing Guantanamo be matched with a change in policy at the Justice Department to actually try to get these cases heard to test the evidence and then to determine, if there’s no evidence, to release these people. That part I haven’t seen at all.”