February 7-13, 2007

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Open Mic

The Late Writ

By David. L. McColgin

Sometimes, we just didn't get the right folks.
--Gen. Jay Hood, Commander, Guantanamo Bay, January 2005, commenting on the detainees held at Guantanamo prison

It has now been five years since the first detainees were brought to the U.S. Naval Base at Guantanamo Bay, Cuba. My client, Muhammed Qasim, has been detained there for nearly four years without charges. I think about Commander Hood's comment every time I travel to Guantanamo to see Muhammed, a gentle, 30-year-old man with a deep penetrating gaze.

In the years before Guantanamo, Muhammed supported his mother and sister on their small family farm in Zormat, Afghanistan. He raised vegetables and cattle to feed the family, and sold any surplus in the local market. As he sits shackled before me in the dry heat of Camp Echo, thousands of miles away from his family farm, he dreams of waking up in his bed in Zormat and discovering that the last four years have just been a nightmare.

Late at night on Feb. 7, 2003, Muhammed says that U.S. and Afghani troops took him from his home at gunpoint. Someone in his village--Muhammed still does not know who--had said he was with the Taliban. The U.S. military in Afghanistan was passing out fliers offering to pay a $500 to $5,000 bounty to identify anyone connected with the Taliban. In a culture rife with long-standing feuds, many named personal enemies as a profitable and safe way to settle old scores.

Muhammed says that is what happened to him. The government has no physical evidence. The U.S. forces found no guns, rockets or anything else connected with the Taliban in Muhammed's home when they took him away, but it makes no difference. Evidence is not required. The government will not even identify his accuser.

Based only on the whispered word of an unidentified person in Afghanistan, Muhammed has been held for nearly four years as an "unlawful enemy combatant" at Guantanamo prison along with about 500 others. After the Supreme Court ruled in 2004 that the detainees have the right to challenge their detention, the government established Combatant Status Review Tribunal. These tribunals accord the detainees no genuine rights.

Muhammed appeared before such a tribunal in 2004. He was not allowed to see any evidence. He had no right to have a lawyer with him. He had no meaningful right to present evidence to show that he was not connected to the Taliban or to call witnesses to testify on his behalf. His only right was to make a statement. The tribunal ruled that he was an "unlawful enemy combatant."

Case closed.

Muhammed has not been charged with any crime. He will never have a trial, even before a Military Commission. This means he has even fewer rights than the handful of detainees at Guantanamo who have been charged with war crimes. They at least get a Military Commission trial. Yet the government claims the right to hold Muhammed at Guantanamo "indefinitely."

Muhammed's one hope for challenging his detention is habeas corpus. Habeas corpus is a fundamental right older than our Constitution, renowned in our history as "the Great Writ." It is the right to compel the government to justify in court why it has imprisoned someone. But Congress and the president last fall abolished that right for all those, like Muhammed, held as unlawful enemy combatants.

Muhammed's only hope now is that Congress will either repeal the law abolishing habeas corpus, or that the Supreme Court will strike it down. In the meantime, Muhammed waits and wonders what has become of his sisters and mother and their family farm. And he hopes the U.S. someday soon will wake up and end this long nightmare called Guantanamo.

David L. McColgin, Esq., is part of a team of attorneys and investigators in the Federal Community Defender Office in Philadelphia who have agreed to represent detainees held at Guantanamo Bay at the request of the Federal Court in Washington, D.C. The Byrne Report will return next week.

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