The continuing limbo of accused terrorists at the American military base in Guantánamo Bay has sparked a global debate, with officials in the White House fielding barbs from Arab capitals, from the European Commission, even from the offices of the State Department at Foggy Bottom.
But the only formal legal challenge to the government’s conduct will be heard next Thursday in federal court here in Los Angeles.
The reason for that improbable happenstance of legal geography is simple, according to Stephen Yagman, the civil rights attorney who filed the action. “We had one motivation,” Yagman said in a telephone interview. “Why hasn’t anyone else done anything about this, and if nobody has, who will?
“Generally there are established groups that immediately step into the breach when something of this genre occurs,” Yagman said. But when it came to the al Qaeda foot soldiers in Cuba, he said, “There appeared to be a void.”
Yagman filled it by calling a few friends, who in turn recruited a few more. The result was a singular collection of clergy, academics and lawyers. Among the 17 plaintiffs are former U.S. Attorney General Ramsey Clark, of New York, and Harold Lewis Jr., a law professor in Georgia who is the past chair of the civil rights section of the American Association of Law Schools, but most hail from Los Angeles. They include three rabbis, three professors at USC and several prominent civil rights attorneys, most of them veterans of police-abuse suits filed against the LAPD. For USC law professor Erwin Chemerinsky, it’s the first time he’s ever joined a lawsuit as a plaintiff.
“I just feel it’s so important for the United States to follow the law,” Chemerinsky said. “We’re not seeking to aid the terrorists, but no matter how heinous their crimes are, we have to follow the law.”
The petition, expected to be heard February 14 by U.S. District Judge Howard Matz, demands that the prisoners in Cuba be afforded the minimum protections of due process: that they be named, that a cause be stated for holding them and that the prisoners be presented before a judge.
Those measures might not seem so much to ask, but they mirror the provisions of the Geneva Convention, which calls for due process in handling people captured in a military campaign. And if, in stating the charges against them, the government classifies the al Qaeda fighters as prisoners of war, then the Geneva treaty would severely limit any effort to interrogate them.
So far, the U.S. has held the accused al Qaeda soldiers under the blanket category of “unlawful combatants,” and rejected appeals that it follow international protocols. Some 158 prisoners are being held at Guantánamo, while more than 3,000 remain under guard at a squalid prison in northern Afghanistan.
Judge Matz, at a hearing last month, has said he had “grave doubts” over whether he had jurisdiction to hear the case, and the government filed a blistering response, holding Yagman and his coalition to be “uninvited meddlers” with no basis to press their claim. Moreover, the U.S. Attorney argued that any intervention on behalf of the “enemy aliens” of al Qaeda would “interfere with the foreign affairs and Commander-in-Chief powers” of the president.
But if the lawsuit faces serious obstacles in court, the challenge it raised has been echoed both within the administration and throughout the anti-terror alliance. On January 23, three days after the suit was filed, the government suspended the transfer of Arab prisoners there.
That same week, Secretary of State Colin Powell pressed President Bush to adhere to the Geneva Convention. And Powell agreed on the particulars with Yagman and his coalition: The point was not to classify those held at Guantánamo as prisoners of war, but to follow the rules guaranteeing captives the right to a hearing.
Powell requested a review of the official policy after attending an international conference in Tokyo, where he heard persistent grumblings about the U.S. decision to ignore the venerable Geneva treaty.
Attorney Yagman said his concerns about Guantánamo were spurred by a similar experience. An acerbic lawyer, with an office on the Venice Boardwalk, who specializes in lawsuits against the LAPD, Yagman said he was berated during a flight from France by a Norwegian passenger who told him that people across Europe were “up in arms” over the U.S. policy. “It was embarrassing to me as an American,” Yagman said.
Asked why he thought Bush would ignore the Geneva Convention, Yagman said, “The Bush administration is an illegitimate administration who stole an election, headed by a man who is not intelligent and who is surrounded by uninformed, ill-advised warmongers who are so arrogant they will do as they please so long as they think they can get away with it.”
USC law professor Chemerinsky voiced the same objection. “I don’t see much concern on the part of [Defense Secretary Donald] Rumsfeld or even Bush in following the law.”
Chemerinsky said he was surprised at the vitriol the lawsuit has engendered, including death threats at his office on campus and at home. “I’ve never done anything that’s gotten the quantity of hate mail this has gotten,” he said.