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Lawyers Cite Democracy in Appeal

Courts: Stephen Yagman and Erwin Chemerinsky argue that by denying legal representation to terror suspects, we become like them.


Accusing the federal government of subverting democratic values, Los Angeles lawyers asked an appellate court Wednesday to allow them to represent more than 500 foreign prisoners detained at Guantanamo Bay naval base in Cuba in the aftermath of the Sept. 11 terrorist attacks.

"Who are we?" asked civil rights attorney Stephen Yagman, speaking before a three-member panel of the 9th Circuit Court of Appeals. "The answer is we're Americans. We're not them."

He asserted that if the U.S. continued to indefinitely hold the detainees captured in Afghanistan without making their names public or stating why each is being held, "We shall become them"--an undemocratic society like that of our enemies.

"These are people purported to be held by our government, perhaps in perpetuity, who don't have access to lawyers," Yagman said. "There has to be someone in our system of liberties who can come into court and say something for these people."

Earlier this year, Yagman and USC law professor Erwin Chemerinsky sued President Bush, Secretary of Defense Donald Rumsfeld and other federal officials, contending that the prisoners were being unlawfully confined and were entitled to a court hearing.

In February, U.S. District Judge A. Howard Matz dismissed the suit, saying that the attorneys had no relationship with the prisoners and therefore no right to represent them. Moreover, Matz said no U.S. judge has jurisdiction because the detainees are being held on Cuban soil.

The appellate panel--composed of Judges Marsha Berzon, John Noonan and Kim M. Wardlaw--heard an hour of arguments and is expected to issue a ruling later this year.

Defending the federal government, Justice Department Deputy Solicitor General Paul D. Clement said the situation is unique, framed by the terror attacks that left thousands of Americans dead.

Matz's ruling was "exactly right"' that no U.S. court had any jurisdiction over the detainees, Clement said. And even if a U.S. court did have jurisdiction, he said, Yagman and Chemerinsky have no right to represent the detainees because they have no relationship to any of those held at Guantanamo.

He cited prior federal appellate decisions, saying that if an attorney wants to represent a defendant in essence, as a "next friend," the attorney has to have some relationship to the individual.

Most of the leading cases in which there have been clashes over whether an attorney has the right to file an action on behalf of an inmate with whom he does not have a relationship involve the death penalty. In those cases, a prisoner is seeking to abandon his appeals and an attorney is attempting to keep the case alive. The key issue is whether the attorney really has the best interest of the client at heart.

Chemerinsky said that there never had been a decision by the Supreme Court or any federal appellate court denying "next friend" standing to an attorney in a situation in which the prisoner had no access to a court.

Berzon asked whether the Guantanamo detainees really had no access to U.S. courts because two lawsuits have been filed in Washington on behalf of 14 detainees from Australia, England and Kuwait. The cases were consolidated and a ruling is pending on the government's motion to dismiss the case.

Wardlaw asked, "What is the rationale for allowing someone in your position, with no relationship to the detainees, to pursue litigation on their behalf when the other people capable of doing so?"

Yagman said that he and Chemerinsky did not claim to represent the individuals in the Washington cases, whose families had managed to obtain the attorneys for them.

Moreover, Chemerinsky said it was a "logical fallacy to infer that the rest of detainees have access to U.S. courts. Nothing on the record indicates these people have any access to courts other than through this case," Chemerinsky said. He suggested to the judges that if they had any doubts, they should send the case back to Matz with orders that he hold an evidentiary hearing on whether these detainees had any access to lawyers.

"This case requires you to face a question no other court has yet faced," Chemerinsky said. "If there are individuals with no other access to a court, can a suit be brought for them by someone with relationship to them? Our position is international law and [rulings of] the Supreme Court require access to the courts."

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