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Supreme Court Hears Guantanamo Case

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David Cynamon
Attorney for Kuwaiti Detainees at Guantanamo
Tuesday, December 4, 2007; 1:00 PM

On Wednesday, the Supreme Court will hear arguments on the habeas corpus rights of detainees the U.S. has declared "unlawful combatants." David Cynamon, an attorney for four Kuwaiti detainees at Guantanamo, was online Tuesday, Dec. 4 at 1 p.m. ET to discuss his client's case, the arguments in favor of putting these detainees through U.S. courts, and the upcoming hearing.

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The transcript follows.

Cynamon, a partner with Pillsbury Winthrop Shaw Pittman LLP, is a senior litigator with more than 30 years of experience.

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David Cynamon: Hi, this is David Cynamon. I represent the Kuwaiti detainees at Guantanamo, and I represent those same parties in the case before the Supreme Court that will be argued tomorrow. I will now start taking questions

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Washington: Do you believe it is possible for the courts to find a constitutional right to habeas corpus for noncitizens? How do you believe MCA's role will play out in this?

David Cynamon: Yes, that is the main issue before the Court in the case that will be argued tomorrow. There is technically no constitutional right to habeas. Rather, habeas is a common law right, going back to the Magna Carta, and the Constitution says that this right cannot be suspended except in times of invasion or rebellion. No one in the Administration or Congress claims that we are in a state of rebellion or invasion. So the question for the Court is whether the MCA is constitutional when it stripped the right of the federal courts to hear habeas claims by the Guantanamo detainees.

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Boston: Does your firm risk a reputational or even economic hit because of your representation in this case? Is it difficult for top-tier firms to accept this risk? If so, is it difficult for there to be strong adversarial representation to stand up to a government that may be overreaching in its powers?

David Cynamon: There has been no "hit" or any sort because of our representation. Quite the contrary. Last January, Cully Stimson, then the Deputy Assistant Defense Secretary for Detainee Affairs, commented in a radio interview that clients of corporate law firms like ours should boycott us because we represent "terrorists." The backlash was swift and came from all points on the ideological spectrum. One thing that most Americans agree upon is that the function of lawyers is to represent people who are accused of crimes or wrongdoing, even when, or especially when, those accused are unpopular. Stimson resigned in embarrassment, and I have seen no further public effort to stigmatize the lawyers involved in these cases.

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Washington: I am concerned that there is a hidden hand of Kuwaiti business or government interests behind you. Does your law firm represent any Kuwaiti business or government interests? How much does your law firm bill these firms?

David Cynamon: There is nothing "hidden" about the hand of Kuwait in this. Our firm does not otherwise represent Kuwait or Kuwaiti businesses, but Kuwait has been quite open about its desire to have its citizens who were detained in Guantanamo returned to their home country. Indeed, Kuwait's Head of State has twice personally requested President Bush to return the Kuwaiti detainees.

Originally, there were 12 Kuwaitis taken to Guantanamo. Eight have been returned to Kuwait, where they were put on trial of assisting enemies of Kuwait and the United States, and all were acquitted. Keep in mind that Kuwait is probably our country's closest Arab ally in the Middle East, even supporting our unpopular war in Iraq. Kuwait's government has even more to worry about radical terrorists than the U.S. So the fact that these detainees were given trials in court, and acquitted, says a lot about the arbitrary nature of the detentions at Guantanamo. I also find it ironic, and somewhat shameful, that the detainees had to go to Kuwait to get the kind of fair trials that we used to take for granted in this country.

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CM1515: Since when do these beings have any civil liberties under our laws? They are detainees brought from the battlefield.

David Cynamon: Actually, the vast majority of the detainees -- more than 80 percent according to the Defense Departments own records -- were not "captured on the battlefield" but rather were turned in for bounty payments. Only 8 percent of the detainees at Guantanamo were allegedly captured while engaged in hostilities against the U.S. and allied forces. The whole point of habeas is to have a neutral, independent judge hear the evidence why the person is imprisoned and decide whether in fact that person should be in prison. Without such hearings, how do we know which of the detainees are "brought from the battlefield" and which ones are innocent?

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Toronto: Congratulations on your work defending the rule of law and the principle of the presumption of innocence. One aspect of the American reaction as news of the true nature of the Guantanamo captives has become public shocks me. Many commentators react as though the rule of law and the presumption of innocence are luxuries that can be dispensed of -- when doing so is necessary for public safety.

After reading many of the transcripts from the captives' CSR Tribunals, the very limited review those proceedings provided have been the only sanity checking the "evidence" against them has ever undergone. Abandoning the rule of law has decreased public safety -- Guantanamo is merely a factory for manufacturing totally unreliable information, and to the extent decisions are made based on that bad information, we are all less safe.

David Cynamon: Thank you. Of course, I completely agree with your position. One of the things that has mystified and saddened me about the Administration's policies at Guantanamo are that our country's greatest strength is that it was built on the rule of law and just and fair treatment for individuals. It seems to me that the Administration has inadequate faith in America's institutions, including our judicial system. They seem to be saying, "Unlike our previous enemies, like the Nazis, or the Soviet Union, these terrorists are so powerful that we can only defeat them by abandoning our tried-and-true principles and reduce ourselves to the same lawless level." I don't understand or agree with that thinking. Our military, civil and criminal justice systems are more than strong enough to handle this challenge.

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Washington: What was the problem in terms of giving them counsel and putting them in American courts in the first place? We damage our standing in the world, and for what? Close it and close it now, before anything else.

David Cynamon: Your question is exactly the issue that will be before the Supreme Court. The Administration's original idea behind Guantanamo is that it was beyond the reach of U.S. law, but it also is not subject to any other country's law -- sort of a legal "black hole." Since, according to the Administration, the people brought to Guantanamo were not entitled to any of the protections of the Geneva Conventions, they could be captured and imprisoned indefinitely without recourse to any court.

I agree with you that this policy has severely damaged our standing in the world, and in that way we have hurt, rather than helped, our efforts to confront and defeat Islamist terrorists.

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Seattle: How do you intend to get over the hurdle of "Guantanamo isn't U.S. soil"? That seems to me to be the government's first and best shot at getting this case dismissed.

David Cynamon: That's an excellent question and one to which the briefs in the Supreme Court devote a lot of attention. The fact is that Guantanamo is for all intents and purposes U.S. soil. When the Supreme Court looked at this question in 2004, in its Rasul decision (when it held that the detainees have a right to habeas corpus), Justice Kennedy said, "From a practical perspective, Guantanamo belongs to the United States."

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Washington:"I also find it ironic, and somewhat shameful, that the detainees had to go to Kuwait to get the kind of fair trials that we used to take for granted in this country." Sir, I find your comments both offensive and out of touch with reality. Kuwait is a dictatorship without a free judiciary, so your comments about fair trials and being ashamed are ridiculous and misguided. Also, in every American war we have had enemy combatants and put them before military tribunals.

David Cynamon: I disagree with you about Kuwait. They have an elected Parliament and an independent judiciary. And, as I stated in my previous answer, why in the world would Kuwait, a conservative Arab government with close ties to the U.S., want to allow radical terrorists to run free on its soil? Osama bin Laden and al-Qaeda have threatened to bring down Arab governments like Saudi Arabia and Kuwait, just as much as they threaten the U.S. Kuwait and the U.S. are on the same side in this battle.

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Washington: If you win, will that mean that persons captured and detained in Iraq or Afghanistan can file habeas corpus actions in United States Courts?

David Cynamon: No. The issue in this case is whether the men imprisoned in Guantanamo have a right to habeas in U.S. federal court. Guantanamo is unique because it is a territory that is under the complete control and jurisdiction of the U.S.. Cuba has no rights or power over Guantanamo unless and until the U.S., in its sole discretion, cancels the permanent lease for the base and returns it to Cuba. So the only law that can apply in Guantanamo is U.S. law. In Iraq and Afghanistan, the governments and laws of those countries are in control, so there is no risk, as there is in Guantanamo, of a legal black hole in which no country's laws could provide any protections.

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Princeton, N.J.: Certain rights in the Constitution are restricted to citizens, but others apply to all people, such as ensuring that everyone receives a fair shake in U.S. courts, citizen or not. I agree heartily with your positions, but the courts in general -- and SCOTUS in particular -- seem to have spewed forth a huge amount of bad law dealing with security cases. This goes back to the first national security case against the Air Force in 1953 (I believe) where the USAF claimed national security and got the case thrown out. Later it came out that they simply lied. How can you expect to succeed with this Supreme Court?

David Cynamon: The issue in the Supreme Court will turn in part on the question whether, as of 1789 (when the Constitution was adopted), the common law writ of habeas corpus would have extended to protect both citizens and noncitizens in places like Guantanamo. In 2004, in the Rasul case, the Supreme Court said that the historical writ did apply, so I think there is a reasonable chance that it will do so again, although Justice O'Connor, who was part of the majority decision in Rasul, is no longer on the Court.

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Atlanta: Do you have an explanation as to why have other nations not protested more vociferously and raised the diplomacy stakes over our detention of their citizens after all these years?

David Cynamon: I think other nations have protested strongly. The U.K., for example, has been successful in getting the British citizens at Guantanamo returned.

Much of what is going on, however, is behind the scenes. For example, the U.S. recently returned detainees to Tunisia and Libya, hardly U.S. allies or countries that are noted for human rights. One of the downsides of not having habeas hearings is that the process by which the U.S. sends people out of Guantanamo is just as opaque and arbitrary as the process for bringing them there.

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Washington: Years ago I represented Haitian refugees interned at Gitmo and was denied access to counsel or habeas corpus. The 11th Circuit rejected our claims, and the Supreme Court denied cert. Why do you think the Court is more receptive to determining the rights of Gitmo detainees now than it was back in the '90s? And will your decision affect future waves of refugees if they are interned at Gitmo? Will it cause the Coast Guard to turn such refugees back while still in the water, rather than let them touch ground at Gitmo?

David Cynamon: That's a good question. Sometimes the denial of cert. by the Court doesn't indicate how it would rule on the merits. Perhaps it saw the Haitian refugee cases as different because it assumed that at some point those refugees would be given asylum or returned, whereas the current detainees are imprisoned indefinitely, and perhaps for some, permanently. But ultimately, why the Court takes a particular case and not another is a mystery to me.

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Washington: The first thing Khalid Sheik Mohammed said when he was captured was "I will see you in court with my lawyers." He should go before a military tribunal ... then to jail for the rest of his life.

David Cynamon: I have no problem with military tribunals for people captured in the course of hostilities. In fact, in Afghanistan, the military wanted to follow the U.S. Code of Military Justice and provide "field commissions" to determine whether captured individuals were or were not enemy combatants. That's what we've done in prior wars, including Vietnam and the Persian Gulf War. Unfortunately, the civilian leadership in the Administration overruled the military and decided that there would be no process of any sort for the people captured. The result of that decision has us in the mess we're in now.

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Washington: These men were fighting for stateless armies ... which are called terrorist organizations. They have no right to habeas corpus. The Geneva Convention is pretty clear about fighting for stateless armies.

David Cynamon: "These men were fighting for stateless armies." That begs the very question that habeas hearings are designed to answer: was the individual "fighting for a stateless army," or was the individual not involved in any hostilities but captured in error or because the captors knew they would get a bounty if they turned in any Arab that they could get their hands on? The whole point of the basic right of habeas is to sort out the innocent from the guilty.

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Washington: You said that the issue is what was the common law in 1789. But do not statutes supersede the common law? Specifically, the Military Commission Act and the Detainee Treatment Act say that federal courts do not have authority to hear detainee cases (except the D.C. Circuit on review of a decision of a military commission)?

David Cynamon: Whether the statutes -- the MCA and DTA -- supersede the common law is exactly the question before the Court. We argue that the Suspension clause of the Constitution prohibits Congress from suspending the writ of habeas corpus, and therefore the MCA and DTA are unconstitutional. The government responds that the statutes are constitutional because the prisoners at Guantanamo would not have been entitled to habeas corpus under the common law, and, in any event, since they are not citizens and not in the US, they can't invoke the protections of the Constitution.

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London: What precedents will be set by the outcome of this case?

David Cynamon: Hard to say. The situation at Guantanamo is unique, so although the case is very important in terms of upholding the basic right of habeas corpus, it may not as a practical matter have a broader effect. The main precedent it would establish, I hope, is to deter future administrations from abandoning the rule of law when we are involved in non-traditional conflicts.

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Oakland, Calif.: Thank you for taking these questions. My question is more basic: Do Justices (or judges in other courts as well) decide cases by what they want the outcome to be? It sure appears -- at least to this layman -- that Supreme Court judges decide what outcome they want, then find case law, legislative intent or logic and selective evidence that supports their predetermined choice.

David Cynamon: Lawyers debate these questions, and, in our more cynical moments (some would say lawyers only have cynical moments), think that cases are decided the way you suggest. I think that most judges at least think that they are deciding cases based on the law and facts before them, but the way they look at the law and facts is affected by their underlying philosophies and ideologies. A true "judicial conservative" is a judge who recognizes his or her biases and tries as best as possible to eliminate those biases from the decision. Some judges are better at that than others. I have my views on the current Justices, but discretion compels me to keep them to myself.

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Lyme, Conn.: I know this is not a legal question, but how do you believe this case affects our international reputation? I believe we have an obligation to be the example of how democracy and justice works properly and one of the reasons why so many other nations looked to us was because of our fair treatment of our own citizens and even our relatively far better treatment of military and foreign prisoners. I fear we may be risking not only our international stature but possibly inviting retribution -- or at least we will find we have less of a right to protest should our citizens be tried in other countries with legal and police processes we find offensive. What are your thoughts on this?

David Cynamon: The points you have made have been raised by others, including many former military officials who are concerned that we are setting a dangerous precedent that will be used against us by our enemies in future wars. Sen. John McCain, who knows firsthand what torture is, has been particularly outspoken and eloquent on this point.

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Toronto: Perhaps you can answer some things that have mystified me. Major Jeff Groharing, Omar Khadr's prosecutor, claimed Brig. Gen. Thomas Hartmann -- the supposedly "impartial" advisor -- ordered him to withhold the existence of the potentially exculpatory witness from Khadr's lawyers. But Hartmann was just appointed last summer, and the prosecution must have known about this witness since 2002. Who do you think really was responsible for burying this evidence? Could it have been Fred Borch -- the first chief prosecutor -- who had to resign his commission in disgrace when his promises to bury evidence was revealed in memos from his subordinates? How the heck could Borch have been re-hired by the prosecution as a civilian consultant?

David Cynamon: Good question. Lots of strange things have happened. If you have followed the news about the Guantanamo cases, you may have seen the reports of the affidavit filed by Lieutenant Colonel Stephen Abraham, an Army Reserve intelligence officer, who served on a Combatant Status Review Tribunal and acted as the liaison between the CSRT office and intelligence agencies. His testimony demonstrates pretty graphically that the whole CSRT process was a sham.

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David Cynamon: Thank you all for participating.

The argument in the Supreme Court tomorrow may be broadcast live, so if you are interested, check the Supreme Court Web site.

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Editor's Note: washingtonpost.com moderators retain editorial control over Discussions and choose the most relevant questions for guests and hosts; guests and hosts can decline to answer questions. washingtonpost.com is not responsible for any content posted by third parties.


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