Local lawyers representing detainees at Guantanamo see big changes

For the record: Today is President Obama's self-imposed deadline for closing the military prison at Guantanamo Bay in Cuba. To no one's surprise, he will miss it.

Even so, Twin Cities attorneys who represent detainees at the controversial lockup say they have seen significant changes since Obama took office.

One abrupt change came last night when a team of Minneapolis lawyers representing an Algerian detainee named Ahcene Zemiri received notice from the U.S. government that he has been transferred to his homeland where the Algerian government will take custody of him.

It is not clear what Zemiri's status will be there, said Nicole Moen, one of the attorneys. But "he has always maintained his desire and his willingness to go home," she said.

For the most part, though, change hasn't come nearly as fast as even Obama expected. Thorny legal questions entangle 196 detainees who remain behind Guantanamo's bars. Beyond a few high-profile cases, the government has yet to say how or if it will prosecute the men and whether it will continue to hold anyone indefinitely in legal limbo.

If anything, the politically charged context is muddier than it was a year ago. New security worries — the rise of a new terrorist front in Yemen, the arrests of home-grown terrorists from Minneapolis to New York and the attempted bombing of a plane bound for Detroit in December — have forced Obama and his ideals down dark avenues with no clear endpoints.

These, of course, are not questions to be answered by Obama alone. Tough treatment of suspected terrorists was a major campaign theme for Republican Scott Brown's stunning victory this week in the Massachusetts senate race.

So it's a safe bet all of us will be challenged to rehash this debate in this election year.

Less isolation, more sunshine
Sorting through the issues can begin with a look at what has changed at Guantanamo.

For starters, the conditions of confinement have improved, said Moen, who made her sixth trip to Guantanamo in December.

Zemiri, who also is known as Hasan Zemiri, had been captured in Afghanistan in November 2001 as he and dozens of other Arab men tried to sneak out of the country during the heat of war. He has denied participating in terrorist activities. You can read more background on his case here and here.

In 2004, Zemiri petitioned to challenge his detention in federal courts through the constitutional right known as habeas corpus. The petition was on hold through a series of legal battles over whether Guantanamo detainees had habeas rights. In 2008, the Supreme Court said they did.

Meanwhile, attorneys were among the few advocates for the detainees who actually saw them and assessed their physical and mental conditions. Zemiri had a wife and son in Canada and many relatives in Algeria. Of course, none of them have been allowed to visit him.

Zemiri once joined other Guantanamo detainees in a hunger strike. In December, though, Moen said she found him "in good spirits."

One reason is that he and many other detainees no longer were held in solitary confinement. Another is that they were getting more time outdoors.

"They have more contact with each other during the day," Moen said. "He looks better, and he told us he felt better."

The most significant development is that the detainees' cases are proceeding in several ways. The Obama administration is moving to prosecute Khalid Shaikh Mohammed, the self-described mastermind of the Sept. 11 attacks, and four co-conspirators in a Manhattan federal courtroom. And the administration is reviewing the security implications of bringing another detainee to trial in Washington, D.C., the Associated Press reported.

U.S. Attorney General Eric Holder also said in November that five detainees will be prosecuted before a military commission.

Finally, an interagency government task force is reviewing the remaining cases to determine which detainees can be prosecuted, released or handled through "other lawful means."

Zemiri's transfer to Algeria was approved by that task force, the Justice Department said in a statement released Thursday night. One other Algerian detainee, Adil Hadial Jazairi Bin Hamlili, also was transferred to the custody of the Algerian government.

The task force review of the two men's cases "examined a number of factors, including the potential threat posed by each individual and the receiving country's demonstrated capabilities to mitigate potential threats posed by the individuals in their home country," the statement said.

After so many years of working on Zemiri's case, Moen said she was "shocked" at the decision.

Dozens of other detainees have been cleared for release, although the government can't find any country that will take a good many of them.

Too dangerous to release?
One group of detainees defines the center of a debate that is sure to flare in election campaigns. They are deemed too dangerous to release. But the evidence against them is weak, and some of it may be tainted because the detainees had been subjected to coercive interrogations or torture.

As many as 50 detainees may fall into this category, the New York Times reported today, quoting an unnamed "administration official."

Human rights advocates and detainees' attorneys are urging the administration to either charge the men in federal courts or let them go.

Rep. John Kline of Minnesota is among many Republicans in Congress who vehemently disagree, citing grave national security concerns, even about prosecuting the cases in federal court. If the detainees are tried in civilian courts, "the government would be forced to reveal all of its intelligence on detainees and how it obtained it," Kline said on his Facebook page.

Moen dismissed that claim as "inaccurate." Hundreds of terrorism cases have been successfully prosecuted in federal courts since 9/11, she said, and a federal law — the Classified Information Procedures Act — spells out secure handling of sensitive information.

"Federal judges have plenty of experience dealing with exactly those concerns," she said.

For Moen, the notion of holding prisoners indefinitely without rights to their day in court runs contrary to "hundreds of years of jurisprudence and our history as a nation."

Like most attorneys for the detainees, she said, "I seek due process for the clients not only to protect individual rights but also because that's how we determine the truth in our system of justice."

Punishment for what?
Other attorneys see both sides, though.

There are limited provisions in U.S. law for holding someone indefinitely, said Tung Yin, formerly a law professor at the University of Iowa and now at Lewis & Clark Law School in Portland, Ore.

Certain defendants — famously, O.J.Simpson after the 1995 murder of his wife and her friend — are held throughout their cases. And, controversially, certain sex offenders can be detained indefinitely after they have served their time for specific crimes.

"The courts have upheld detention in those cases," Yin said.

More basically, he said, federal courts don't exactly fit the Guantanamo cases. Typically, courts serve to determine whether someone should be punished for breaking a specific law beyond a reasonable doubt.

But the point of military detention is not punishment in the same sense. Even if they killed American soldiers in battle, enemy combatants captured during war have not been prosecuted for murder, Yin said, as long as they fought within the rules of international law — didn't, for example, wave false white flags. The point of holding them was to keep them on the sidelines for the duration of the war.

"Of course, being detained is unpleasant, but the purpose was not punishment," Yin said. "It's simply incapacitation."

Detainees like Khalid Shaikh Mohammed clearly can be prosecuted for specific crimes. But how about other men who did not take direct action against the United States?

"If you want to argue that we should prosecute them, the question is, 'For what?'" Yin said.

One suggested charge has been conspiracy against the United States.

"But if they just don't like us, and they say they want to do us harm that's stretching conspiracy pretty widely," Yin said. "That could start to spill over into all sorts of non-terrorism cases. ... if we say just conspiracy to have bad intentions is enough to prosecute them."

A dangerous enemy, but not a country
Al-Qaida's shadowy nature can be blamed for much of this complexity.

Had the United States been engaged in a more conventional war, that is intergovernmental war, there would be a clear right to detain fighters in the opposition forces until the end of the conflict, said Prof. David Weissbrodt, an expert in international human rights law at the University of Minnesota Law School.

"You get certain rights as a prisoner of war, but you don't have the right to be released, and you don't have the right to a trial unless they charge you with a crime," Weissbrodt said.

"The problem here is that al Qaida is not a country, and it certainly has not ratified any of the (international) treaties," he said.

So POW provisions of the Geneva Conventions do not apply directly to these cases. There is a short provision dealing with conflicts that are not between official states. It gives simple rights to people who are not taking an active part in hostilities, including the right not to be tortured or killed. And it says if they are going to be sentenced they are entitled to a fair trial.

How long they can be kept in legal limbo is a "difficult question," Weissbrodt said. If this were a conventional conflict, the answer would be until the war ended.

But when will the conflict with al Qaida end? Will we even know for sure if it does?

Weissbrodt, who has done defense work for some detainees, agrees that the best option is to put them all before federal courts. To be sure, some may go free. But most of the 800 men who had been locked up at Guantanamo already have been released.

"I'm not persuaded that the people who are left are significantly different for the most part from the people who have been released," Weissbrodt said. "I can't understand why they are still in detention."

Take the case of Canadian Omar Khadr, who was 15 years old when he was detained in 2002 on allegations he killed a U.S. soldier in Afghanistan. Weissbrodt worked on his defense.

"The most that could be true of him, if you believe the allegations, is that he and a number of other individuals were under attack by a U.S. military unit. ... He or someone else threw a hand grenade at the attacking soldiers. ... I'm not sympathetic to his cause because he killed an American soldier, but it's really hard to understand how this 15 year-old-child could be a threat to the United States. ... If he is the worst of the worst then somebody has got some wrong categories."

Going to Illinois
One option Obama has considered — moving the detainees to the Thomson Correctional Center in Illinois — would sidestep the question of how long they can be held. For that reason, some human rights advocates have dismissed the proposal as "Gitmo North."

Still, it would be symbolically significant. For many Americans and for al-Qaida's recruiters, Guantanamo has come to symbolize the abuse of hundreds of Muslim men.

"To the extent that Guantanamo has become a symbol for a place without law, there is value in closing it," Moen said.

Even that move may prove difficult, though, in an election year.

Yes, the abuse associated with Guantanamo "undermines vital counterterrorism cooperation from our Western allies," John Bellinger III, former legal adviser to Secretary of State Condoleezza Rice, said at a forum of the Council on Foreign Relations where he is Adjunct Senior Fellow for International and National Security Law.

The perception that there has been serious abuse may or may not be fair, but it has "proved impossible to shake," he said.

Still, the political reality is that Obama "will likely not be able to shutter the prison in 2010, and possibly not even during the next three years," Bellinger said.

"Politically gun-shy Democratic majorities are unlikely to vote to move the Guantanamo detainees into the United States during an election year, and may be unwilling to do so at all," he predicted.

We'll see a year from now.

Sharon Schmickle writes about national and foreign affairs and science. She can be reached at sschmickle [at] minnpost [dot] com.