In 2002, the terms “war on terror,” “enemy combatant” and Guantánamo Bay had only recently become buzzwords in a post-Sept. 11 United States, under the first term of President George W. Bush ’68.
That year, Yale Law School Dean Harold Hongju Koh and visiting lecturer and private-practice lawyer Jonathan Freiman LAW ’98 co-founded the Law School’s National Litigation Project. They established it under the Allard K. Lowenstein Human Rights Clinic with a goal in mind: to address human rights and civil liberties issues arising from the Bush administration’s anti-terrorism policies.
Now, in one of numerous developments to emerge from the clinic since its founding, Freiman and his colleague Tahlia Townsend LAW ’05 — who both work for the New Haven-based law firm Wiggin and Dana — obtained documents revealing that U.S. military officers applied standard operating procedures from the U.S. naval base in Guantánamo, Cuba, to three detainees held without charge in two military jails on U.S. soil.
“The release of these documents is a significant success on the part of the clinic,” wrote Hope Metcalf ’96, an associate research scholar in the Law School and a fellow and clinical instructor for the NLP, in an e-mail. The development, she said, comes in the context of much legal work toward disclosing the government’s anti-terrorism procedures.
Freiman and Townsend obtained the documents through a Freedom of Information Act request submitted about a year ago on behalf of the Lowenstein Clinic. Representing Jose Padilla, one of the prisoners named in the documents, the lawyers filed their request through the clinic because of its previous work in support of the detainees, Freiman said.
Padilla, an American citizen, was arrested in 2002 under the suspicion that he was part of an al-Qaida plot to detonate a “dirty bomb” in the United States. The Bush administration labeled Padilla an “enemy combatant,” and he was held without charge for four years in a Charleston, S.C., brig, Freiman said.
There, he explained, Padilla was subjected to extreme interrogation and sensory deprivation and, for the first two of those four years, was kept incommunicado.
The government eventually dropped the dirty bomb charges, and instead, Padilla was tried last year in Florida, where he was convicted of involvement in terrorist activities in Kosovo, Bosnia and Chechnya in the 1990s. In January, Padilla was sentenced to 17 years and four months in prison. Freiman said Padilla is now in federal prison in Florence, Co., but his conviction is on appeal.
The other two detainees named in the document are Ali Saleh Kahlah al-Marri and Yaser Esam Hamdi. Al-marri, a legal U.S. resident and citizen of Qatar, was arrested in Illinois in 2001 as a material witness to the Sept. 11 attacks and charged with credit card fraud the next year. He was sent to the Charleston brig in 2003 — where he now remains — when Bush declared him an “enemy combatant.” Hamdi, who was seized in Afghanistan in 2001, was originally detained at Guantánamo and later moved to the United States. He was released in 2004 on the condition that he give up his U.S. citizenship.
‘An island outside of the law’
The 91 pages of documents obtained by Freiman and Townsend — referencing the treatment of Padilla, al-Marri and Hamdi — show that military officers in the Navy’s U.S. Fleet Forces Command, which oversees military brigs in Charleston and Norfolk, Va., wrote e-mail messages “up the chain of command” indicating alarm that they were ordered to treat prisoners in ways they said were inconsistent with military traditions and values, Freiman said.
The e-mails — with sender and recipient names kept anonymous — describe detainees being denied access to lawyers, mail and family contact, as well as to simple diversions such as soccer balls, board games and televisions and VCRs. Freiman said the e-mails are the first revealed government documents to show that standard operating procedures applied at Guantánamo were also used in military prisons inside the U.S.
One e-mail reads, “One issue that I haven’t quite come to grips with yet is the lash-up btw GTMO and Charleston,” using the common moniker for Guantánamo. “Are you aware of any formal arrangements btw GTMO and Charleston…?”
Freiman said Guantánamo was created by the Bush administration as an “island outside of the law.”
“These documents show that once Guantánamo was created, people would be treated in the same horrific ways in the United States,” Freiman explained.
But while the Bush administration has argued that the Constitution does not apply to Guantánamo detainees because they are imprisoned outside the United States, Freiman said there is “no question” that the Constitution does apply within the country.
Metcalf agreed that “it was obvious at the time that these techniques were unconstitutional.”
The Lowenstein Clinic
The Lowenstein Clinic is one of a many law school clinics throughout the country that are involved in human rights issues and, in many cases, particularly those related to the government’s anti-terrorism policies pos-Sept. 11, Freiman said.
While no law students were involved in Freiman’s work on releasing the documents, the NLP encompasses a Law School course called “Balancing Civil Liberties and National Security Post 9/11.” In the class, teams of students tackle real-life cases or issues with faculty advisors, usually through direct representation of clients or amicus briefs, Freiman explained.
In an e-mail message, Metcalfe wrote that the NLP proves that students can play a significant role in tackling some of the nation’s most important legal issues. She offered as an example the NLP’s securing the transfer of Padilla from his “unlawful military detention” to the regular criminal justice system in 2006.
“[Freiman’s work] is just one part of trying to put together this whole picture of what happened — why decisions were made to treat people in this way and what went wrong,” she said.
The ACLU’s Jonathan Hafetz, who represents al-Marri , requested the release of the documents in collaboration with the Lowenstein Clinic while he was working for the Brennan Center for Justice, a legal think tank at the New York University School of Law.
Hafetz said the release of the documents is important in that the public has a right to know about what he called Bush’s “imperial presidency.”
But this issue, Freiman said, is not one of the NLP’s projects that has gotten the most press. He said the case has likely been shadowed by the media’s coverage of other events, such as the presidential elections, and also, he added half-jokingly, of baseball.
But with the documents’ release, Metcalf said, “This very well could not be the end of the story.”
Padilla is still involved in a suit asserting that his treatment was unconstitutional, and for al-Marri, Hafetz is engaged in litigation focusing on achieving due process, she explained.