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Candace Gorman

H. Candace Gorman is an attorney specializing in civil and human rights

May 16th, 2011 11:54 PM

Change I Can't Believe In

You see, he was my junior senator for a time so I had a chance to see how he voted on national issues. A disheartening example was his vote for the Detainee Treatment Act of 2005 (DTA),  the first attempt by Congress to take away the writ of habeas corpus from the men at Guantanamo after the Supreme Court said the men could have lawyers and challenge their detention. Eventually the Supreme Court struck down that law but it was one of many delays that kept my clients in that hellhole. As luck would have it I had the opportunity to talk to Barack Obama at a fundraiser in 2006, back when Joe Lieberman was still his senate mentor and before he announced his presidential candidacy. As you might imagine, I was quite angry at Obama for voting for the DTA: I expected more from him.  Indeed, I was one of the “Lawyers for Obama.” As I am not the type to hold back, however, I looked Obama in the eye and told him that he should be ashamed of himself, as a civil rights practitioner and constitutional law instructor, for voting for the DTA. His immediate response was “it was going to pass anyway.” I shot back “oh, is that your standard now?” I knew he regretted what he said but it was so spontaneous that it clearly reflected his true feelings. I also knew I no longer wanted him as my senator. What I did not know was that while I would get my wish, I would be trading him in as senator only to get him as president!

But, as Studs Terkel was fond of saying “hope dies last.” When Obama was the only game in town for the presidency I actually flew back from The Hague, where I was a visiting professional at the International Criminal Court, to work on the final weeks of his campaign (not, however, as a “lawyer for Obama” and definitely not as a “Guantanamo lawyer for Obama”). And on January 21, 2009 when his first real work as president started and he signed the executive order to close Guantanamo, I even allowed myself to hope.  My constrained optimism, alas, was short lived.

As an attorney for two men at Guantanamo I had a front row seat to the real meaning of “change you can believe in….”  Unfortunately there was change... but it has been for the worse. It became instantly clear that Obama was not going to “lead” on closing Guantanamo. Yes, he issued his executive order, but he has not learned that orders don’t execute themselves and one doesn’t "lead" with entrenched bureaucrats (many of whom were appointed by his predecessor who established Guantanamo in the first place): one leads with people actually committed to your stated goals. Also clear was that there was no "adult supervision" over in the Department of Justice. Evidently afraid of the very change Obama promised, the Obama justice department has stuck to the Bush agenda in the courts. 

We finally did get habeas hearings (thanks to the Supreme Court, not Obama) but with no presidential leadership and no change in the Bush agenda, the hearings have turned into little more than a circus and an embarrassment to any country claiming belief in the rule of law (obviously we no longer succumb to such folly anymore). In my client Razak Ali’s case I watched the government radically alter its theories about why Razak should be forever detained on no less than five separate occasions, the last one deliberately timed so as to deprive us of enough time to uncover the government’s latest lies. And just to keep things interesting they threw in some other dirty tricks- what I have witnessed from our own government makes BP look like a church group.   And when the hearing was completed and the evidence contradicting the government's lies started to trickle  in, the good folks of our government shrugged their shoulders and just claimed they didn’t know anything at all. Perhaps the only honest position they have taken.

And what about this indefinite detention, Mr. Obama? Too dangerous to free despite no actual evidence to hold? Let me give you one example I know best, my client Razak Ali. What is so dangerous about my client? He was staying in a guesthouse in Pakistan where Abu Zubaydah also spent a few days. Zubaydah was a man the government thought was a big shot in al-Qaeda. Shortly after Zubaydah arrived at the guesthouse, it was raided and Zubaydah was off to be waterboarded 100 times, left in coffin like boxes and otherwise tortured. Oops on that one, however. It turns out  Zubaydah wasn’t actually al-Qaeda after all. But no worries, he probably did something at some point to justify that treatment, right?….As for my client Razak, the Obama government argued that just being in the same guesthouse, and nothing else, not even the fact that other completely innocent people were also staying at the same guesthouse and set free, was more than enough to hold Razak, forever, without charge (after all, Razak is an Arab, and sadly that is sufficient evidence). It did not take much more than that for the judge to agree with the Government.

And transparency? Don’t make me laugh…all of the court habeas procedures were changed when Obama became president and hence almost every court document in the habeas proceedings is now filed under seal. If you were to look at the public docket sheet for my cases you would see that until November 2008 you could read just about all of the pleadings- there might be some names or other information redacted but the documents themselves are there.  From that point on, however, you  will see many notices that documents have been filed with the Court Security Office-and very few documents that ever make it to the public court docket.

From where I am sitting, hope without courage looks a lot like the totalitarianism first set up by Bush to “keep us free.”  Change I can’t believe in.   And while the nation might want to let out a sigh of relief at the death of Osama Bin Laden, we might well want to consider whether the travesty of the habeas proceedings is actually a key part of Bin Laden’s own agenda. After all, if he really did “hate us for our freedom,” nothing could be more diabolical than getting us to surrender the basic legal cornerstone of all of our freedoms Habeas Corpus itself, by turning it from “the great writ” into the no-so-great parlor game as now played out in the courts, where “evidence” based on tortured statements, illogical “connections” and ultimately, just being an Arab in the wrong place and nothing else, are now “legal justification” for life imprisonment without charge or trial. One might wonder if Bin Laden went to his death satisfied with his "legacy" after all.   

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