The Bush Administration claims credit for granting Jose Padilla and Yasser Esam Hamdi access to their attorneys. But under the restrictive rules imposed by the Pentagon, the legal visits are nothing more than an empty façade.
Deemed “enemy combatants” by the President, the two men— both U.S. citizens—have been held incommunicado in U.S. military brigs. After nearly two years in isolation, they will no doubt be pleased to have visitors. But neither they, nor the public, should have any illusions as to the nature of these meetings. Although the two men can see and speak with their lawyers, they cannot consult with them in any meaningful way.
Under the Pentagon’s rules, the meetings between lawyers and these particular clients are not confidential. Rather than the customary attorney-client privilege, which protects the secrecy of discussions between lawyers and the people they represent, these meetings are completely open to the military. Indeed, a military official is present at each meeting, and everything is videotaped and audio-recorded. No lawyer conscious of his ethical obligations would allow his client to talk about the facts of his case under such conditions.
Donna Newman, Padilla’s lawyer, has not yet met with her client. But after holding a ninety-minute meeting under these restrictions, Frank Dunham, Hamdi’s lawyer, told us he still does not know his client’s version of the facts.
The Pentagon indicated to Dunham that anything Hamdi revealed would not be used against him in a criminal prosecution. But Hamdi is not being prosecuted—and anything he says could affect the military’s determination as to whether his continued detention is warranted. With the military attending to Hamdi’s every word, Dunham knows better than to inquire into Hamdi’s past actions. He is unable even to confirm whether Hamdi was captured in Afghanistan, as the Pentagon claims, or arrested somewhere else. Although the Pentagon’s rules make this reticence necessary, they cripple Dunham’s ability to build a case for Hamdi’s release from detention.
Nor does Dunham know how the military has treated Hamdi during his long months of detention and interrogation. Another restriction on Dunham’s access to his client is that he cannot ask Hamdi anything that might reveal sources or methods of intelligence gathering. In other words, if Hamdi was abused—if U.S. officials crossed the line in interrogating him—Dunham has no way of finding out.
Worse, even if Dunham did somehow learn of mistreatment, he would be unable to protect his client by alerting others to the problem. Under the Pentagon’s restrictions, every word Hamdi says to his lawyer is classified. Dunham could not even give us an answer when we asked him if his client knew anything about the pending legal battles over his case. He did say that he provided Hamdi with copies of the briefs and pleadings, and that Hamdi certainly knew now that he was the subject of an important Supreme Court case.
It is the existence of this case, in all likelihood, that led the Bush administration to allow Hamdi and Dunham to meet. The administration had previously insisted that national security would be harmed if the military’s interrogation of Hamdi and Padilla were interrupted by visits from lawyers. In both cases, the administration decided that this danger no longer existed—just before the government filed briefs with the U.S. Supreme Court. Not surprisingly, few people who have followed the administration’s use of the enemy combatant label believe that the timing is coincidental.
But in granting the two men access to counsel, the Pentagon emphasized that it was doing so “as a matter of discretion and military authority.” It made clear, in other words, that neither domestic nor international law compelled such access.
The Pentagon’s position before the Supreme Court is the same. In the aftermath of September 11, the government claims that there are no legal limits to its power over terrorist suspects. It falls to the Supreme Court to rule on whether U.S. citizens can be subject to such unconstrained executive authority.
And one day, if the Court rules as it should, Hamdi and Padilla will get legal visits that are more than just a sham.
