By
Ari Kaplan
Cuba has long
been the enigmatic romanticized land of
Hemingway with its blue skies and majestic
landscape. But its mysteries are no longer
about fictional fishing boat captains or
the sun’s rise over the horizon.
Today, they are about Bahía de Guantánamo,
the site of the now infamous Guantanamo
Bay Naval Base located at the southeastern
end of the island nation.
It is on that base that hundreds of suspected
enemy combatants, including purported al-Qaeda
and Taliban prisoners captured in Afghanistan,
Pakistan, Iraq, and elsewhere, are being
held in detention camps bearing names such
as Delta, Echo, Iguana, and the now-closed
X-Ray (named from the NATO phonetic alphabet).
Much has been made of the claimed injustices
that have taken place—torture, lack
of due process, and questionable holding
conditions. These reports have adversely
impacted the world’s view of the
United States and have even impaired the
country’s view of itself.
Beyond the din of protest voices and graphic
photos posted on the Internet, there is
an elite group of modern day freedom fighters
toiling behind the scenes with little fanfare
to ensure that America’s values and
the rule of law protect even the most feared
and reviled in our society. They are working
tirelessly (many for free), under arduous
conditions and in the spirit of the values
set forth by the founders on an early July
day more than two hundred years ago. They
bring honor to the legal profession, and
they embody what it means to be from the
land of the free and home of the brave.
Military and civilian alike, these are
the members of what is affectionately called
the Guantanamo Bay Bar Association. And,
as one might expect, some of its most prominent
members are part of the GW Law School community.
Professor Gregory E. Maggs
 Prompted by the attacks of Sept. 11, 2001,
and the subsequent initiation of the war
on terror, on Nov. 13, 2001, President
Bush issued a military order titled “Detention,
Treatment, and Trial of Certain Non-Citizens
in the War against Terrorism.” This
military order states generally that certain
noncitizens captured in the war on terrorism
could be detained and brought before military
commissions.
Immediately after President Bush signed
his proclamation, Professor Gregory E.
Maggs, a U.S. Army reservist in the Judge
Advocate General’s Corps, was called
to active duty for a two-month period to
serve on the team that prepared what was
to become the Department of Defense Military
Commission Order No. 1, “Procedures
for Trials by Military Commissions of Certain
Non-United States Citizens in the War Against
Terrorism.” “The rules had
to be consistent with the president’s
order,” he says.
Following that active duty period, Maggs,
who was appointed to the Committee for
the Uniform Code of Military Justice
by Secretary of Defense Donald H. Rumsfeld,
spent six months providing advice to
government prosecutors.
Col. Will A. Gunn, LLM ’94
 The implementation details of the president’s
order were first articulated on March 21,
2002, when Order No. 1 was issued. It provided
for, among other things, the creation of
an Office of the Chief Prosecutor and an
Office of the Chief Defense Counsel. U.S.
Air Force Col. Will A. Gunn, LLM ’94,
was contacted in May 2002 by the Office
of the General Counsel for the U.S. Department
of Defense and told he was nominated to
be the first chief defense counsel. He
had previously served as San Antonio, Texas-based
chief circuit defense counsel for the Air
Force Central Circuit, covering 11 states
between Texas and North Dakota and from
Louisiana to New Mexico. “I had experience
in the defense world,” he says.
After multiple interviews, Gunn, now retired
and serving as the president and CEO of
the Boys and Girls Club of Greater Washington,
assumed the job of chief defense counsel
on Feb. 17, 2003. Gunn recalls that it “looked
to be a very unpopular position.” While
it was not on Gunn’s short list of
assignments, “it was a very important
role,” he says.
Gunn’s initial duties were to review
Order No. 1 and to provide recommendations
to the Office of the General Counsel. He
also was required to hire a staff. Ironically,
Gunn was not allowed to represent any detainees
himself. He did, however, hire lawyers
that shared his convictions and “would
be proud to hold the government to its
burden and bring fairness to the issues,” he
says.
“I wanted courageous people who were
fighters, who would put the well being
of the clients up against the well being
of their careers,” he recalls. Of
the lawyers in the Office of the Chief
Defense Counsel, he emphasizes “you
have a lot of people who would make the
legal profession and the American people
proud.”
Kristine A. Huskey, Adjunct Instructor
 In March of 2002, while Maggs was advising
the military on procedures for the commissions
and Gunn was being considered for the
role of chief defense counsel, an associate
at Shearman & Sterling in Washington
was about to embark on the legal adventure
of her career. Kristine A. Huskey, now
an adjunct instructor in GW Law’s
International Human Rights Clinic, began
assisting Tom Wilner, a Shearman partner
who was contacted by the families of 12
Kuwaiti citizens suspected of being held
at Guantanamo Bay.
By way of background, Huskey notes that
it was only six months after 9/11 and “nobody
knew what was happening or what was being
done at Guantanamo Bay.” Initially,
Huskey’s clients simply wanted confirmation
that their sons were alive. She and her
team filed a traditional complaint suing
for due process in May 2002, captioned
Al-Odah v. United
States, in the U.S. District
Court for the District of Columbia naming
Secretary Rumsfeld, the Guantanamo Bay
naval base commander, and others. Al-Odah was ultimately consolidated with Rasul
v. Bush, a series of petitions for habeas
rights filed on behalf of two Australian
and two British citizens, also pending
in the D.C. district court.
“When we first filed suit, it was
not the issue it is today,” she says.
The government’s lawyers claimed
that the district court did not have jurisdiction
to hear the case because Guantanamo Bay
is a sovereign territory of Cuba (though
there is a lease dating back to 1898 ceding
control of the territory to the United
States) and because the plaintiffs are
not U.S. citizens. The issue was litigated
for more than two years with Huskey facing
disappointing rulings at both the district
court and the appellate court levels. But
on June 28, 2004, the U.S. Supreme Court
held in a 6-3 decision that U.S. courts
have the authority to decide whether non-U.S.
citizens held in Guantanamo Bay were rightfully
imprisoned.
Following the Court’s decision in
Rasul, the case was remanded back to the
district court and various issues concerning
visitation rights, monitoring communications,
and attorney-client privilege continue
to be litigated. As the district court
grappled with issues resulting from the
decision in Rasul, the case of another
detainee was making its way up to the Supremes.
Hamdan v. Rumsfeld is the case of Yemeni
citizen, Salim Ahmed Hamdan, who was captured
in Afghanistan in April 2004 and charged
with conspiracy to commit terrorism in
July 2004. A formal Combatant Status Review
Tribunal determined that Hamdan was justifiably
being detained by the United States as
an enemy combatant. But in granting Hamdan’s
petition for habeas corpus in November
2004, the D.C. district court held that
he could not be tried by a military commission
before his prisoner of war status was confirmed
under the Geneva Convention.
The U.S. Court of Appeals for the D.C.
Circuit reversed the lower court and
Hamdan is currently pending a decision
by the Supreme Court. (The opinion was
written by U.S. District Court Judge
James Robertson, LLB ’65.)
Associate Professor of Clinical Law Arturo
Carrillo, JD ’91
 Despite the maturing judicial understanding
of the issues, many questions remained.
To help answer some of them, Associate
Professor of Clinical Law Arturo Carrillo,
JD ’91, director of GW Law’s
International Human Rights Clinic, and
his students spent the spring of 2004 researching
international law to determine whether
the military commissions had subject matter
jurisdiction and to clarify how evidence
should be treated. The clinic is the only
human rights program in the country dedicated
primarily to litigating human rights cases
before U.S. and international tribunals.
U.S. Navy Lt. David Shull, JD ’05
 That fall, David Shull, JD ’05, then
a third-year law student in the clinic,
worked alongside two JAG Corps members
defending a detainee at Guantanamo Bay.
He researched whether conspiracy was a
valid charge under international law, but
more importantly he was inspired to become
more involved. Now a U.S. Navy JAG Corps
lieutenant in Rhode Island, Shull highlights
that the current convergence of international
humanitarian, international criminal, and
international human rights law is giving
JAG Corps lawyers an extraordinary opportunity
to formulate American legal principles. “I
had already been interested in joining,
but the research firmed things up for me,” he
says. “It confirmed that if I were
to have an impact, I would like to do it
as an attorney in the JAG Corps on the
front lines.”
David A. Berz, JD ’73
 Like Shull, David Berz, managing partner
of the D.C. office of Weil, Gotshal & Manges,
was deeply impacted by the issues. Berz
was first exposed to the situation at
Guantanamo Bay in 2004 when assisting
The Center for International Human Rights
at Northwestern University in preparing
its amicus brief to the D.C. circuit
in Hamdan. In February 2005, he and a
team at his firm agreed to assume the
representation of five Saudi Arabian
detainees.
They arranged to meet with the families
of the detained in Bahrain and received
authorizations to represent their family
members. Most importantly, they received
family photos and letters, which, according
to Berz, were used “to establish
our bona fides once we met our clients
at Guantanamo Bay.”
One of the realities about representing
the detainees is that most do not initially
believe that the lawyers are there to represent
their interests. “We tried to get
them to trust us,” Huskey recalls. “They
thought that we must be government lawyers
because the military told them that they
had no rights.”
Berz described his initial meeting with
his clients as “an eye-opening experience.” The
military facility is a large series of
modular jails divided into four or five
camps. The meetings with the detainees,
who are fully shackled at the arms and
legs, are held in Camp Echo. “You
can meet with them alone, but there are
strict rules about what can be discussed,” Berz
says.
He stresses the fact that while the detainees
were interrogated when they first arrived
at the base, some have not been interrogated
for as long as a year. “You immediately
get a sense of how isolated these people
are,” he notes. “These are
people who are just sort of stuck in this
unreal, very isolated world. There is something
very Kafka-esque about that.”
Berz and his team are now involved in facilitating
diplomatic activity between the United
States and Saudi Arabia. There are two
major issues holding up the repatriation
of his clients. First, the United States
wants assurances that it will have continued
access to these detainees. Second, U.S.
officials want assurances that these men
will not be mistreated. “It has been
a fascinating experience,” Berz says.
Carol Elder Bruce, JD ’74
 “Fascinating” also can describe
the work of Carol Elder Bruce, a partner
with Venable in D.C., and the plight of
her three Egyptian clients. In February
2005, the American College of Trial Lawyers,
one of the premier legal associations in
America, asked Bruce to assume the representation
of her clients.
The former assistant U.S. attorney and
independent counsel in the investigation
of Interior Secretary Bruce Babbitt was
specially tapped for this assignment
because of the complex rendition issues.According
to Bruce, traditional rendition occurs
where the United States transfers suspects,
without any court hearing or process, to
a foreign state where the person is wanted
for a crime. In the “war on terror,” however,
Bruce advises that there is ample evidence
that the United States has been shipping
some suspects to foreign states—like
Egypt—that are known for their
brutal interrogation techniques. This
practice has become akin to outsourcing
torture and “has been scorned by
many civil rights activists,” she
says.
Bruce and her team of six lawyers from
Venable filed petitions for habeas corpus
on behalf of the “next friends” of
three Egyptian men. The “next friends” are
family members or other interested parties
entitled by statute to file a lawsuit
when the plaintiffs themselves are incapable
of doing so. Bruce noted that all three
of her clients were in Pakistan, not
in Afghanistan at war with U.S. troops. “They
are certain that they were sold to the
U.S. government,” she says. Berz
and Huskey echo this comment. One of
Bruce’s
clients was actually found not to be
an enemy combatant in January 2005, prior
to her representation, but she was not
informed of this finding until the fall
of 2005. And, he remains a detainee to
this day. Thanks to Bruce, though, he
was transferred from Camp Delta to Camp
Iguana, which was built on a cliff overlooking
the Caribbean Sea where he is allowed
to walk freely all day in a caged compound
and view the water, unlike those in other
camps.
She describes her role as counsel to
these detainees as “one of most significant
things I have done in my career.” She
also notes, however, “whenever
I leave Guantanamo, I walk away shaking
my head. I want my clients to know and
believe that there is another side to
the United States and they are seeing
it in these lawyers who are trying to
get them due process under the Constitution.” Of
the military lawyers, Bruce notes, “every
contact I have had with every military
lawyer has
been outstanding.”
Col. Dwight H. Sullivan, Adjunct Instructor
 The outstanding nature of those communications
is due in part to the precedent set by
retired Col. Gunn as the first chief
defense counsel and by Col. Dwight Sullivan,
the current chief defense counsel. After
nine months in the position, Sullivan
highlights that his role is to ensure
that everyone detained is represented
by counsel.
Prior to being recommended by Gunn to
succeed him in this position, Sullivan
was a civilian lawyer in the Court of
Appeals for the Armed Forces and an adjunct
instructor in GW Law’s trial advocacy
program. “I
thought it was a great challenge and
extremely important work,” he says
of his role as chief defense counsel. “I
think that all of the civilian lawyers
that have been working on these issues
deserve great credit,” he adds. “This
is really in the noblest tradition of the
legal profession; these people are trying
to preserve liberty at no personal benefit
and at substantial cost to themselves.”
While he is on active duty until August
2007, Sullivan recognizes that a Supreme
Court decision in Hamdan invalidating
military commissions would effectively
eliminate his job. Otherwise, there is
a lot of work to be done. Of the approximately
492 detainees at Guantanamo, only 10
have been referred for trial. Of those
10, four are stayed pending various administrative
proceedings.
Col. Mark Harvey, JD ’81
As the commissions proceed, it is retired
Col. Mark Harvey that documents them
in full detail. As the first clerk for
the commissions, he ensures that all
public records are available online so
that the public can decide on the fairness
of the commissions.
While currently in a civilian role, Harvey
was an appellate judge on the Army Court
of Criminal Appeals and also worked in
the Pentagon. “This is very rewarding
work,” he says. “I think
that the country is doing the right thing
by giving the detainees a fair trial.”
Professors
Stephen A. Saltzburg and Robert W. Tuttle
 To ensure that fairness, the Military
Commission rules require that each detainee
be represented by an attorney. This requirement
has created a curious problem for Maj.
Tom Fleener, a U.S. Army JAG Corps defense
lawyer in Sullivan’s office who has
been appointed to serve as counsel to Ali
Hamza Ahmed Sulayman al Bahlul. Al Bahlul
has insisted that he wants to represent
himself, which violates the requirement
of the military commission order that all
detainees have military defense counsel,
but it presents an ethical problem for
Fleener. In December 2005, Fleener sought
legal advice from Professors Stephen Saltzburg
and Robert Tuttle.
“The question is one of the lawyer’s
obligation when a client wants to represent
himself,” Tuttle says. “People
do not have lawyers forced on them,” he
adds. Fleener’s dilemma is that the
supremacy clause does not trump the obligations
he owes to the Wyoming and Iowa state bars.
 “It is about as controversial as anything
is,” Saltzburg says.“We
combined professional responsibility,
criminal procedure,
and constitutional law in our advice,” he
notes.
That history is being made by lawyers
fighting for liberty and justice in a way
that lifts the American spirit. When Huskey
or Bruce or Berz return to Guantanamo Bay
for yet another challenging visit, the
3.5-hour nonpressurized Air Sunshine charter
prop ride from Fort Lauderdale will not
be as painful. Each has a comfortable pair
of earplugs and, once there, knows the
leeward side airport and aged motel at
the base quite well. Each is even comfortable
with the daily bus and ferry ride required
to visit clients at Camp Echo. One may
stop at the Subway for food to bring to
a client or at Starbucks for a much needed
latte. Despite the familiarity, the scene
remains surreal. As they struggle with
the system, so too do their clients struggle
with fate. The military escorts remind
them they are no longer on K Street and
that the horizon line is formed not at
the point where the heavens meet the earth,
but at the intersection of hope and reality.
To their clients, they represent both.
Ari Kaplan, JD ’97, is an attorney
and a freelance writer based in the metropolitan
New York area.
Voices from Guantanamo
GW Law event features former prisoners
speaking out for the first time
Former detainees accused of terrorism
and held at the U.S. Naval Base at
Guantanamo Bay, Cuba, publicly discussed
their experiences for the first time
at an event sponsored by GW Law’s
Human Rights Law Society, the GW
Law International Human Rights Clinic,
and the Center for Constitutional
Rights in March. The event fostered
discussion of the Bush administration’s
use of detention and intelligence
operations at the base. The released
and exonerated detainees spoke to
an audience of students, journalists,
scholars, and C-SPAN viewers nationwide
via live teleconference feed from
London.
“The purpose of today’s
program is to cast sunlight on an
issue that is currently in need of
sunlight,” said Dean Frederick
M. Lawrence. Toward that end, speakers
including GW Law professors, defense
attorneys, military specialists,
and family members of former detainees
led discussions with the exonerated
prisoners and shared information
with the audience.
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