As the Senate prepared to vote Thursday to abolish the writ of habeas corpus, Sens. Lindsey Graham and Jon Kyl were railing about lawyers like me. Filing lawsuits on behalf of the terrorists at Guantanamo Bay. Terrorists! Kyl must have said the word 30 times.
As I listened, I wished the senators could meet my client Adel.
Adel is innocent. I don't mean he claims to be. I mean the military says so. It held a secret tribunal and ruled that he is not al Qaeda, not Taliban, not a terrorist. The whole thing was a mistake: The Pentagon paid $5,000 to a bounty hunter, and it got taken.
The military people reached this conclusion, and they wrote it down on a memo, and then they classified the memo and Adel went from the hearing room back to his prison cell. He is a prisoner today, eight months later. And these facts would still be a secret but for one thing: habeas corpus.
Only habeas corpus got Adel a chance to tell a federal judge what had happened. Only habeas corpus revealed that it wasn't just Adel who was innocent -- it was Abu Bakker and Ahmet and Ayoub and Zakerjain and Sadiq -- all Guantanamo "terrorists" whom the military has found innocent.
Habeas corpus is older than even our Constitution. It is the right to compel the executive to justify itself when it imprisons people. But the Senate voted to abolish it for Adel, in favor of the same "combatant status review tribunal" that has already exonerated him. That secret tribunal didn't have much impact on his life, but Graham says it is good enough.
Adel lives in a small fenced compound 8,000 miles from his home and family. The Defense Department says it is trying to arrange for a country to take him -- some country other than his native communist China, where Muslims like Adel are routinely tortured. It has been saying this for more than two years. But the rest of the world is not rushing to aid the Bush administration, and meanwhile Adel is about to pass his fourth anniversary in a U.S. prison.
He has no visitors save his lawyers. He has no news in his native language, Uighur. He cannot speak to his wife, his children, his parents. When I first met him on July 15, in a grim place they call Camp Echo, his leg was chained to the floor. I brought photographs of his children to another visit, but I had to take them away again. They were "contraband," and he was forbidden to receive them from me.
In a wiser past, we tried Nazi war criminals in the sunlight. Summing up for the prosecution at Nuremberg, Robert Jackson said that "the future will never have to ask, with misgiving: 'What could the Nazis have said in their favor?' History will know that whatever could be said, they were allowed to say. . . . The extraordinary fairness of these hearings is an attribute of our strength."
The world has never doubted the judgment at Nuremberg. But no one will trust the work of these secret tribunals.
Mistakes are made: There will always be Adels. That's where courts come in. They are slow, but they are not beholden to the defense secretary, and in the end they get it right. They know the good guys from the bad guys. Take away the courts and everyone's a bad guy.
The secretary of defense chained Adel, took him to Cuba, imprisoned him and sends teams of lawyers to fight any effort to get his case heard. Now the Senate has voted to lock down his only hope, the courts, and to throw away the key forever. Before they do this, I have a last request on his behalf. I make it to the 49 senators who voted for this amendment.
I'm back in Cuba today, maybe for the last time. Come down and join me. Sen. Graham, Sen. Kyl -- come meet the sleepy-eyed young man with the shy smile and the gentle manner. Afterward, as you look up at the bright stars over Cuba, remembering what you've seen in Camp Echo, see whether the word "terrorist" comes quite so readily to your lips. See whether the urge to abolish judicial review rests easy on your mind, or whether your heart begins to ache, as mine does, for the country I thought I knew.
The writer is one of a number of lawyers representing Guantanamo Bay prisoners on a pro bono basis.