It is an unlikely journey from the swanky surrounds of Allen & Overy‘s (A&O) New York HQ to a 10ft x 15ft cell in Guantanamo Bay. But it is a trip that Sarah Havens, a second-year associate with the firm, has so far made four times this year to advise A&O’s least likely clients: a bunch of Yemeni nationals accused by the US government of being enemy combatants.
“When we first went out there, our assumption was that they had to be held there for a reason,” relates Havens, a 28-year-old banking litigator. “But we felt that, legally, it was wrong for the US to be holding them without charge and without any due process. We were all shocked when we realised how little a threat most of these people posed.” The lawyer, together with her colleague Douglas Cox from the London office, has just returned from the Yemen, where last week they met with their clients’ families for the first time. “They certainly aren’t what they’re described by the US government as being.” Which is? “A bunch of terrorist hijackers and people who hate us,” she replies.
It is the 12-month anniversary of the US Supreme Court ruling in Rasul v Bush, which held that federal courts had jurisdiction to hear habeas corpus petitions filed by detainees at Guantanamo Bay. Following that case, the Centre for Constitutional Rights, a New York-based human rights group, marshalled lawyers to file habeas corpus petitions on the detainees’ behalf. Within days of Rasul, firms such as A&O, Clifford Chance, Dorsey & Whitney and Paul Weiss Rifkind Wharton & Garrison made petitions on behalf of some of the 550 detainees. They are the so-called ‘Guantanamo Bay Bar Association’ and form a striking coalition of City firm lawyers, law professors, human rights lawyers and activists.
Cox and Havens first became involved when they worked on an amicus brief for the Rasul case some 18 months ago. They then filed a habeas petition in July 2004 on behalf of 14 Yemeni citizens. The two lawyers are now acting for 11 of the 14 pretty much on a full-time basis under the supervising partner Pamela Rogers Chepiga. They commute from New York via Fort Lauderdale, Florida, to the infamous naval bay every six weeks, usually staying for a week at a time. A&O has around 10 lawyers all working pro bono for the detainees.
Cox and Haven have fairly good access to their clients and spend anything from three hours to a day in their company in what they call “private consultation”. The interviews are videotaped, but the government assures them that the recording only “sees shapes” and has no sound. “It’s supposedly for our own safety,” says Havens. “It’s there so they’ll be able to tell whether or not a detainee has lunged across the table to try and strangle us.” Although she adds: “It’s never crossed our minds.” She says that all the lawyers are “very comfortable” meeting their clients and would be “even if they were not shackled”.
So what state are their clients in? Is there evidence of the kind of abuse revealed in the press? “We’ve been through that with all the clients,” says Cox, a capital markets lawyer. “Some of them prefer not to talk about it and some have gone into some of the details of mistreatment, especially in the early days in Guantanamo. Most of our clients were captured in Pakistan, not on any battlefield, and then held for a while in Kandahar and Bagram, and some [of their accounts] were pretty gruesome.”
“All of our clients have evidenced some psychological trauma as a result of what they’ve been through,” adds Havens. “For some, it’s not really noticeable, but for others it’s had a profound effect on them.”
Havens says their clients do not want to talk about abusive treatment. “To the extent we’ve had information, it’s been like pulling teeth,” she says. “We’ve been trying to convince them that it’s okay to tell us what happened, that they aren’t going to face retribution, it isn’t something they should be ashamed of, and it’s not selling out other people who’ve had worse treatment.”
Havens says that all the lawyers have been “struck by the credibility” of their clients. Her colleague acknowledges that the treatment of the 11 Yemenis has been “consistent with a lot of the reports about different kinds of treatment, whether psychological, sexual or just plain physical abuse”.
Havens reports that some of their clients have “long term and recurring medical problems”. She continues: “It’s perfectly clear to us that the medical personnel at Guantanamo are there to assist interrogators and the ongoing intelligence-gathering operation, and so our clients don’t trust the medical care.” Cox says that this trust was lost a long time ago.
Despite the Supreme Court ruling, the habeas applications have become lost in legal limbo. “The government response was, when the petitions came to the lower courts for determination, to argue for the narrowest possible reading of Rasul. That’s to say that people have the right to physically file papers, but there is no underlying substantive right to enforce them,” explains Cox. The lawyers believe there are “another two appeals [which are] possibly another year away” from habeas proceedings.
So how do they see their roles as lawyers? “We’re focussing on the legal issues before the court right now and also trying to keep our clients in the spotlight so the Bush administration can’t get away with hiding them for four years without any pressure,” says Havens. One of the reasons for this month’s Yemen visit, apart from meeting with the families of the prisoners, who have not seen them for more then three years, was to establish what kind of reception they would have if they were transferred back there. The A&O lawyers also want to secure their clients access to a local lawyer as soon as they disembark from the plane. So far, a number of detainees have been moved back and, the lawyers claim all are held without charge under orders from the US not to release them. The lawyers have filed a motion that would require the US administration to give them 30 days’ notice if the clients are removed.
So what do the two lawyers make of their country’s treatment of detainees at Guantanamo? Havens says there are undoubtedly some people who should not be running free, but “not as far as I know any of our clients”. She adds: “The way the US government has handled this situation is to have botched any chance of legitimate law enforcement against terrorists who are out there, because they’ve got information through torture and holding people without charge. That’s damaging the war against terror and the security of the US on a long-term basis. The further you get into this the more you realise that they’ve botched things up from the start – and it’s going to be hard to fix.”