JURIST Guest Columnist J. Wells Dixon, Senior Staff Attorney for the Guantánamo Global Justice Initiative at the Center for Constitutional Rights, says there is a systematic dysfunction within the bureaucracy of the Guantánamo Bay detention facility that impacts the capability of attorneys to adequately represent their clients…

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he seizure and review of attorney-detainee legal materials by officials of the Joint Task Force Guantánamo is disturbing. Anyone remotely familiar with the adversarial legal system in the US knows that a jailor cannot sift through privileged information to reveal a prisoner’s confidential defense strategies. Any first-year law student knows why this is especially improper in the context of a death penalty case. What is unknown is why this event occurred at Guantánamo now, particularly given the government’s admission that it was “not in response to any particular security threat.” The likely answer is there was no principled reason. Having traveled to Guantánamo numerous times over many years to meet with men detained there, it comes as no surprise to me that someone, somewhere in the bureaucracy of Guantánamo, ordered a disruptive and ultimately needless examination of legal papers and correspondence kept by detainees, including materials clearly marked as privileged. Bad decisions and pointless exercises abound at Guantánamo, often for no apparent purpose. Indeed, little changes at Guantánamo except the rules and procedures about legal mail, what you can say and do, what paperwork is required, what box must be checked, and so forth. The only certainty from month-to-month is there will be some new administrative obstacle for lawyers to overcome in order to represent their clients.

If the government cannot figure out “small” issues such as the proper handling of legal mail, it is unclear how it will address complex substantive matters, such as the contradiction in its claim that terrorist suspects who attack coalition forces are war criminals triable by military commission because they are not soldiers with a right to engage in belligerency, yet CIA drone pilots, who also lack combat immunity, may legally target citizens of Pakistan and Yemen (including children) with Hellfire missiles under the laws of war.

It is important to consider that January 11, 2012, will mark the 10-year anniversary of Guantánamo. For nearly a decade, the US has held about 800 men and boys in a prison that was designed to be outside the protections of any law. All were Muslim, few have been charged with any offense and none has received a fair trial. There are currently 171 men still imprisoned at Guantánamo and 89 have been unanimously approved for transfer by all relevant military, law enforcement and intelligence agencies. The identities of the cleared men remain inexplicably withheld from the public, however, and no one has actually been transferred within the last year except an Algerian who was forcibly repatriated despite his fear of persecution in his home country. Others have commented that, for the cleared men, as well as the 36 slated for prosecution and the 46 who will be held indefinitely, Guantánamo has become “The Forever Prison.”

The military commissions, which recently ruled that the seizure and review of capital defendant Abd al-Rahim al-Nashiri’s legal mail infringed his rights, also underscore the dysfunction of Guantánamo. The military commission system was designed to serve only one purpose: to manufacture predetermined guilty verdicts for Muslim men who have been dehumanized and rendered unworthy of the protections provided by the US Constitution and laws, including international law. After nearly a decade of false starts, the commissions are notable only for convicting a chauffeur, a child and a video propagandist, none of whom is responsible for the attacks of September 11, 2001. Who will be next, a Taliban cook, or perhaps an al Qaeda gardener? The consistent missteps and false starts at Guantánamo raise the question of what President Barack Obama is trying to achieve there at this point — Guantánamo is a fiasco by any measure.

Recent events of the so-called “Arab Spring” also bring new perspective to the failures of Guantánamo. Across North Africa and the Middle East, men and women are demanding widespread political and social change. They are rejecting the vestiges of old authoritarian regimes which have long oppressed them — torture, indefinite detention, unfair military trials and impunity — the very features that Guantánamo was created to embody and which persist there today. It is ironic, and hypocritical, that the US claims to be the world’s leading democracy, but when it comes to Guantánamo the country lags behind students marching and dying in the streets of Sana’a and Damascus.

Guantánamo Bay demeans the US and should be closed, yet the government continues to dither about and obstruct lawyers’ ability to represent their clients.

J. Wells Dixon joined the Center for Constitutional Rights in 2006. He works on the Guantánamo Global Justice Initiative, where he challenges the detention of prisoners and represents clients in federal court and before the military commissions at Guantánamo Bay. He previously worked at Kramer Levin Naftalis & Frankel LLP, where he specialized in white collar criminal defense and securities litigation.

Suggested citation: J. Wells Dixon, Continued Dysfunction Marks Guantanamo Bureaucracy, JURIST – Hotline, Nov. 18, 2011, http://jurist.org/hotline/2011/11/wells-dixon-guantanamo-dysfunction.php.

This article was prepared for publication by Michael Glenn, an assistant editor for JURIST’s professional commentary service. Please direct any questions or comments to him at professionalcommentary@jurist.org