In June, the U.S. Supreme Court ordered the Bush administration to let the hundreds of detainees it claims are terrorists meet with lawyers and challenge their imprisonment -- nearly three years behind bars for some. The high court decisions were a resounding defeat for the president, who has steadfastly asserted his right to round up and put away pretty much anyone he deems a terrorist.
So, after the court rejected Bush's arguments, government officials opened the doors of military brigs and the Guantanamo Naval Base to detainees' lawyers, right?
Wrong. Salim Gherebi is a case in point. The 46-year-old Libyan auto mechanic was nabbed in Kabul, Afghanistan, in February 2002 and eventually became one of about 600 detainees at Guantanamo. His lawyer, Stephen Yagman of Los Angeles, says Gherebi is no terrorist but was captured by bounty hunters eager for the $5,000 reward U.S. forces offered. Hundreds of others make similar claims -- that they are common criminals or unlucky innocents, not Al Qaeda terrorists.
Gherebi's brother from San Diego hired Yagman in January 2003 to represent the detainee. But lawyer and client have yet to meet, and Yagman believes Gherebi probably doesn't even know he has a lawyer.
Yagman's efforts to force Justice Department lawyers to justify Gherebi's continued imprisonment have provoked a blizzard of paperwork, court motions and foot-dragging. But there's been little progress toward a face-to-face lawyer-client meeting, let alone a hearing on the merits of his case.
Gherebi's case is hardly unique. Lawyers across the country trying to represent Guantanamo clients report that the government is, as one put it, "trying to neutralize the Supreme Court decision."
The Pentagon has let a few detainees meet with a lawyer as a goodwill gesture, providing the lawyer agrees to let officials listen in and promises not to ask about conditions of the client's confinement or if he has been abused. However, the government is contesting almost every motion and writ, tying up the cases as it continues to claim, incredibly, that the Guantanamo detainees have no constitutional right of access. At the same time, detainees are pressured to plead their cases before a military panel without the due process guarantees available in federal court, a move some are resisting.
Large holes in the Supreme Court decisions left plenty of room for the government to stall. For example, the high court didn't set timetables for court reviews or define who was eligible and who was not, leaving lower courts to work out these questions. For many detainees, that probably means years more behind bars.
Congress could step in, defining the detainees' rights to counsel, the burden of proof that would apply in court proceedings and the limits on detention. But in a nation where Pentagon and Justice Department officials must, like the rest of us, abide by the rule of law, shouldn't the Supreme Court's conclusion -- that even detainees are entitled to due process -- be the final word?