What if Ahcene Zemiri truly is a terrorist?
The question is chilling. But it hasn’t deterred a team of Minneapolis attorneys from donating hundreds of hours and making four trips at their own expense to Guantanamo Bay, Cuba, to represent the Algerian detainee.
They are riveted on a different question: Does the U.S. Constitution call for Zemiri and more than 300 other detainees at the U.S. facility on Guantanamo to get their day in a proper court? The Minneapolis attorneys say it does.
“Vent the charges then let the chips fall where they may,” said John Lundquist, one of Zemiri’s attorneys.
While the world watches, intense debate over the detainees’ rights has thrust the United States into a constitutional showdown where courts, Congress and the White House are vying to shape new legal ground for the age of terrorism.
Now, the U.S. Supreme Court is poised to weigh in on the debate for the third time. It is scheduled to hear arguments Dec. 5 in cases testing whether foreigners locked up at Guantanamo have a right to challenge their detention in U.S. federal courts. A decision in the two combined cases — Boumediene vs. Bush and Al-Odah vs. United States — would come before the end of June.
“This is the defining struggle of our time internationally,” said James Dorsey, another Minneapolis attorney working on Zemiri’s case. “We’ve got to determine how we are going to fight this war on terror and what we do when we pick up these suspicious people. There’s got to be a way other than deciding on our own that we can keep them forever.”
Telephone death threat
The drive to find that other way started in Minneapolis after President Bush assumed in 2001 that federal court jurisdiction would not reach offshore to Guantanamo. Detainees held there would not be prisoners of war, the administration said. But they also would not be ordinary criminals who would have routine access to the full measure of due process provided by the Constitution.
Joseph Margulies, who practiced law in Minneapolis at the time, was deeply disturbed by the turn of events. He and his wife, former Hennepin County public defender Sandra Babcock, set up a conference call with attorneys who did human rights work.
Lundquist and Dorsey at the law firm Fredrikson & Byron were among the first contacted, and few to accept, Margulies said, speaking from Italy. He’s currently on sabbatical from his position as clinical associate professor of law and assistant director at the MacArthur Justice Center in Chicago.
It was difficult to get law firms involved, Margulies said.
“The fog of war, post-Sept. 11, made it hard to see the transformations that were going on in the judicial system,” Margulies said. One of Margulies’ partners involved in a detainee case got a telephone death threat in the middle of the night. The firms of some attorneys who agreed to represent detainees lost clients.
For the Minneapolis attorneys, though, it was a fascinating new venture.
Lundquist had started his career in a five-lawyer firm representing clients charged with driving while intoxicated, dealing drugs, rape and murder. After he won a jury verdict for a doctor accused of sexual abuse he moved into white-collar health-care criminal defense.
“Our guy is like one of my old criminal defense clients,” said Lundquist, speaking of Zemiri.
Dorsey added a measure of military savvy as well as human rights experience. He was a first lieutenant in the U.S. Marine Corps during the 1970s. He normally practices commercial litigation. But his other pro bono work has included a death penalty case in Louisiana, housing discrimination and civil rights matters. He is a co-founder of Minnesota Advocates for Human Rights, and he has assisted with human rights investigations in Guatemala, South Africa, El Salvador, Nicaragua and Mexico.
‘It’s my job’
A need for multilingual attorneys, including French speakers for Algerian detainees, led to Nicole Moen at Fredrikson & Byron, who also practices commercial litigation. Moen had studied French during the 1980s at Minneapolis South High School and polished her skills through her graduation from Harvard Law School in 2003.
Moen explained her interest this way: “We are lawyers. We are officers of the court, and I believe in the rule of law. It’s my job.”
Other Minneapolis attorneys who have worked on the team include Debra Schneider, who specializes in immigration law at Fredrikson & Byron. The nationwide defense effort is coordinated by the Center for Constitutional Rights in New York. Some attorneys in the New York office of Minneapolis mega-firm Dorsey and Whitney are among those who have participated.
Now, Zemiri’s Minneapolis team is getting ready to make a fifth trip to Guantanamo in January.
But they also are watching a potential new development. The Algerian news organization Echorouk Online reported Monday that the United States is preparing to deport Algerians who are detained at Guantanamo. Neither the Algerian government nor the United States has confirmed the report, which was attributed to an Algerian official speaking on a radio program.
For the Minneapolis lawyers, a typical trip to see Zemiri has involved flying to Fort Lauderdale and boarding a propeller-driven plane owned by a charter company that has clearance to land at Guantanamo, Moen said.
“It was just like something out of ‘Indiana Jones,’ ” Moen said. “The plane is old. The seats are mismatched. There is not really an aisle, so you have to climb over some of them to where you are going to sit. And the luggage was piled in the back of the plane covered by tarps.”
Their sleeping quarters were on the leeward side of the bay in facilities called the Combined Bachelor Quarters, which Moen described as “an aging but well-tended HoJo.”
Thousands of U.S. military forces staff the base, which is equipped with a well-stocked PX, food services and even a Starbucks.
“Most of it has a pretty easygoing, laid back feel,” Moen said.
The atmosphere changed, though, when the lawyers took a bus to the bay and boarded a ferry to cross to the detention camp.
“You have to go through various security checkpoints,” Moen said. “The guards are all very quiet and serious and heavily armed.”
No cameras or recording equipment were allowed.
Zemiri arrived hooded and shackled in leg irons that were bolted to the floor of the secure interview room. His hood was removed, and he sat in a plastic chair at a small, flimsy table with the attorneys.
He declined to shake Moen’s hand, not comfortable touching a woman. But he smiled a lot, Moen said.
Lundquist called the work “frustrating and rewarding.” Frustrating because it has taken so long, rewarding because, so far, “we’re on the winning side,” he said.
One major victory came in 2004 when Margulies brought Rasul vs. Bush to the U.S. Supreme court, arguing that the U.S. naval base at Guantanamo is subject to the jurisdiction of federal courts and that men held there could contest their detention with the help of a lawyer. The court agreed.
In response, the Pentagon created combatant status review tribunals. A three-person panel was to determine whether a given detainee was an enemy combatant.
The procedure has alarmed legal scholars and even some former prominent Pentagon officials. Among other concerns, detainees have not been allowed to see the evidence against them, and attorneys haven’t been allowed to represent them at the hearings. Instead, a military officer acts as “personal representative.”
Meanwhile, in 2006, the Republican-controlled Congress passed the Military Commissions Act, which said no court had jurisdiction to hear the detainees’ challenges, effectively suspending habeas corpus for the men at Guantanamo.
In June, the Supreme Court shocked spectators worldwide when it rescinded its own April order and instead agreed to consider whether the act is constitutional. That’s the case that will be argued in December.
Regardless of how the Supreme Court rules, Zemiri will be locked up for a long time, Lundquist said.
“Even if they rule in our favor, we go back to get into the facts of whether he should be incarcerated,” Lundquist said. “It could take a couple of years to get through that process.”
And then come the merits of his case. What if he truly is a terrorist?
Sharon Schmickle writes about foreign affairs and science. She can be reached at sschmickle [at] minnpost [dot] com. Judith Yates Borger reports on legal affairs, science and other subjects. She can be reached at jyatesborger [at] minnpost [dot] com.