Q&A: Defending the Detainees

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Guantanamo Bay

In the first federal court review of government evidence against Guantanamo Bay detainees, a judge ruled Nov. 20 that the Bush administration's case against five Algerians (first detained in Bosnia) was too weak to prevent their release. The hearing followed a June Supreme Court ruling giving the men the right to argue against their detention in court. In a rare move, Judge Richard Leon urged the government not to appeal the verdict, saying the men, who have been imprisoned for seven years, should be released "forthwith." (A sixth defendant was ruled an "enemy combatant" who should stay in government custody. He is appealing.) TIME spoke to one of the case's lead defense attorneys, Stephen Oleskey, about the actual cost of pro bono work, what it's like to visit one of the world's most secret detention camps 17 times, and why one of the detainees got sick celebrating Barack Obama's election. See pictures from inside Guantanamo

Were you surprised by Judge Leon's ruling?
It was clear that the government's case was collapsing even before trial. Then it further disintegrated in the course of the trial. It would have been surprising if there had been some other outcome.

What are the implications for the rest of the detainees at Guantanamo?
In the context of the Obama's administration's stated intention to close Guantanamo, which would involve a review of the remaining cases, this should accelerate that process.

Do you feel optimistic that the facility will be closed?
Absolutely. President-elect Obama has been consistent on this. When the decision on our case came down on June 12 from the Supreme Court, he praised it as a well thought out decision that the Constitution required. I think there's no doubt that it will happen and happen relatively early in his administration.

But the story of Guantanamo doesn't end with closure of the facility. What would be next on your agenda if that happened?
Making sure we don't warehouse most of the prisoners in some other facility in this country and forget about them. Give these men hearings and we all abide by the result or let them go home.

Are your clients aware that Barack Obama was elected and that he wants to close Guantanamo?
They are. One client, Mr. [Lakhdar] Boumediene, the lead plaintiff, has been on hunger strike for two years. Twice a day they strap him in a chair, force his head back and put about two liters of the liquid protein Ensure down a tube through his nose into his stomach. It's a very brutal procedure, but they're determined that he not fast himself to death, so they do this to him. [When he found out Obama was elected] he was so excited that he ate a piece of pizza, which was the first solid food he'd had in two years. He promptly became sick to his stomach because you can't have liquid Ensure for two years and eat solid food, particularly pizza. But that shows you their confidence that the election represented some potential justice for them.

How have your clients' dispositions changed over the time you've known them since 2004?
Right now I think they're more optimistic than they've ever been, but it's been a very rocky road. Think about being in a prison setting for seven years. For the first three, you're denied access to almost anybody besides the Red Cross and interrogators and finally lawyers get there in 2004. And yet the lawyers aren't able to do anything effectively for you until four years later. It's a long time to wait.

Do the living conditions for the five detainees change because of the ruling?
We've asked to have them moved to the least confined location at Guantanamo — still inside the prison complex, but in a barracks with good recreational opportunities. They should be, as much as possible, treated as free men who happened to be living in a prison environment.

How many times have you been to Guantanamo?
We've been there 17 times.

When you go to Guantanamo, where do you stay?
We stay on one side of the bay in a military motel. Every morning, we get on a ferry and go across Guantanamo Bay and we're picked up and taken to the prison camp on the other side.

How did the Washington, D.C. hearing work with your clients imprisoned at Guantanamo?
They actually testified by live video link. One of my partners examined them in Guantanamo in a large room with a camera and then the government cross-examined them from Judge Leon's courtroom in Washington. I think that may have been a first as far as I know.

Do you work on other cases as well?
I have clients who are good enough to pay for my services, because these clients in Guantanamo are obviously penniless and destitute and couldn't pay anything. We've spent millions of dollars of donated legal time and hundreds of thousands of dollars in out-of-pocket money because the translators have to be paid. We've had an investigator in Bosnia working with us for three years. He has to be paid. Every time we fly to Washington, the only place you can look at this evidence, every time we fly to Florida to fly to Cuba and so forth. It's a very, very expensive case.

Are the men's families still in Bosnia?
Two of the families are in Algeria. The other men's wives and children are all in Bosnia. One of the sons said to his mother last Friday, not having seen his dad in seven years, "I have this major sports competition coming up in two weeks. Do you think Dad will be home in time to see it?" Those families are primed and ready for these men to come home.

You must be happy to be able to spend some time with your families now that this decision by the judge has come down.
Yes, but of course I have the ability to talk to my family and these men don't. That's what motivates you.