The tug of war over the due process rights of the 385 prisoners still detained by the Bush administration at Guantanamo Bay, Cuba, goes on, in and out of Congress.

On April 26, in the latest step in the contest, the Bush administration filed suit in federal court to ask that the right to attorney of Guantanamo detainees be severely restricted. Specifically, the government is asking the courts to rule that detainees are entitled to only three meetings each with attorneys, and also that the government be allowed to read their attorney-client correspondence.

Under normal proceedings there is no limitation on such meetings, and attorney-client communications are almost always shielded from the prying eyes of the authorities.

From the beginning, Bush and his two successive attorneys general, John Ashcroft and Alberto Gonzales, have claimed that due process rights available to U.S. citizens inside the United States do not apply to the Guantanamo detainees, because the Guantanamo base is not part of sovereign U.S. territory, but rather belongs to Cuba.

The Center for Constitutional Rights, other defenders of due process and the volunteer attorneys for the detainees have argued back that the U.S. has total control over Guantanamo; that the detainees there, after all, are not being held captive by the Cuban government but by the U.S. government; and that the detainees therefore have to be afforded the same rights as people under arrest in the U.S., including the right to representation by attorneys.

The federal courts have produced a mixed set of rulings on this affair. Initially, the government was told by the courts that the mere fact that the prisoners were held outside U.S. national territory did not extinguish their due process rights. Responding to this, in the fall of 2006, Congress passed the Military Commissions Act, which, among other things, strips the Guantanamo prisoners held as ‘enemy combatants’ of habeas corpus rights.

(Habeas corpus is the very ancient legal doctrine that requires the government to release any prisoner it holds if, within a given period of time, it cannot put forward sufficient preliminary evidence to convince a judge that the prisoner should be held for trial).

In February, the U.S. Court of Appeals for the District of Columbia ruled in favor of the government, Boumedienne v. Bush, stating that the Military Commissions Act was constitutional. On April 2, the Supreme Court refused to review this decision.

Buoyed by these court decisions, the Bush administration has now moved to restrict access to the Guantanamo prisoners by attorneys. Attorney General Gonzales has asserted that attorneys have been stirring up discontent among prisoners by means of provocative communications not needed for their legal defense. At the same time, attorneys for the detainees have complained that the government has been deliberately trying to sow suspicion between the detainees and themselves — the old police station tactics of warning the person you have arrested not to talk to lawyers, because they are all crooks.

Barry M. Kamins, head of the New York Bar Association, responded to Gonzales’ statement by saying that it is ‘astonishing’ that the same government which has subjected the prisoners to harsh treatment and taken away their hope of ever having justice is now blaming the inevitable unrest among the prisoners on the attorneys.

Meanwhile, Sen. Dianne Feinstein (D-Calif.) has introduced legislation into Congress, S 1249, requiring that the Guantanamo Bay prison be closed within one year of enactment; that all detainees be either transferred to a detention facility in the U.S. and charged under normal criminal or military law, or placed at the disposal of an international tribunal under the authority of the United Nations, or transferred for trial to their countries of citizenship or third countries as long as there is a guarantee that prisoners will not be subjected to ‘torture or cruel, inhuman or degrading treatment’; or released completely or placed in a military detention facility in the U.S. without being charged with a violation of the law ‘if the detainee may be held as an enemy combatant or detained pursuant to other legal authority that Congress may authorize.’

In the latter case, the government could at least no longer claim that the detainee was not under jurisdiction of the United States, which would open up more possibilities for due process claims.

Rep. Sheila Jackson-Lee (D-Texas) has hinted that similar legislation will soon be introduced in the House of Representatives.

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