Marine Corps Issues Gag Order in Detainee Abuse Case

The action has lawyers worrying they could be punished for defending Guantanamo clients.

By Carol J. Williams
Times Staff Writer

October 15, 2006

MIAMI — The U.S. Marine Corps has threatened to punish two members of the military legal team representing a terrorism suspect being held at Guantanamo Bay if they continue to speak publicly about reported prisoner abuse, a civilian lawyer from the defense team said Saturday.

The action directed at Lt. Col. Colby Vokey and Sgt. Heather Cerveny follows their report last week that Guantanamo guards bragged about beating detainees, said Muneer Ahmad, an American University law professor who assists in the defense of Canadian suspect Omar Khadr.

The order has heightened fears among the military defense lawyers for Guantanamo prisoners that their careers will suffer for exposing flaws and injustices in the system, Ahmad said.

"In one fell swoop, the government is gagging a defense lawyer and threatening retaliation against a whistle-blower," Ahmad said. "It really points out what is wrong with the detainee legislation that Bush is scheduled to sign on Tuesday: It permits the abuse of detainees to continue, immunizes the wrongdoers and precludes the detainees from ever challenging it in court."

The Marine Corps said the gag order had been issued to ensure the legal team's actions were in compliance with professional standards. "The Chief Defense Counsel of the Marine Corps, as Lt. Col. Vokey's direct supervisor, has directed him not to communicate with the media on this case pending her review of the facts," said 1st Lt. Blanca E. Binstock of the Marine public affairs office.

Defense lawyers for Guantanamo prisoners say the personal stakes are high and point to the Navy's failure to promote Lt. Cmdr. Charles Swift after he successfully challenged the legitimacy of the Pentagon's war-crimes commissions. Two weeks after the Supreme Court ruled the commissions unconstitutional and lacking in due process, Swift was passed over for advancement and will be forced by the Navy's up-or-out policy to retire by summer.

At least three other military defense lawyers for the 10 charged terrorism suspects have also been passed over for promotion in what some consider a subtle reprimand of their vigorous defense of their clients.

"We've all known that representing folks in these kind of circumstances would have consequences, but to actually see Charlie passed over after he takes his case to the Supreme Court and wins — that certainly put it in the forefront for me," said Army Maj. Tom Fleener, who represents Ali Hamza Bahlul of Yemen.

As an Army reservist with a civilian law career in Wyoming to return to in a year or so, Fleener notes he is less susceptible to pressures being exerted on the military defense lawyers.

"If I was active duty, where my livelihood depended on what my military superiors said of me, I would feel tremendous pressure," he said.

Fleener says the mood in Guantanamo defense circles has deteriorated since the government's response to the high court ruling June 29 that President Bush overstepped his powers when he created the military war-crimes commissions. Those commissions would have allowed Pentagon prosecutors to use hearsay evidence and testimony obtained through torture, and barred defendants from seeing evidence against them that prosecutors deemed classified.

Congress last month passed legislation creating a new military commissions process almost identical to the one rejected by the Supreme Court, with the added restriction that Guantanamo detainees have no right to submit writs of habeas corpus to U.S. civil courts to challenge their detention.

It was such a writ filed on behalf of Salim Ahmed Hamdan, an alleged driver and bodyguard for Osama bin Laden, that brought the tribunal case to the Supreme Court.

Swift declined to comment on not having received a promotion.

"As a defense attorney, I don't like allegations without evidence," he says of the widespread view among his colleagues that he was punished for challenging the administration's tribunal process.

"What you sought in any career was an opportunity to make a difference. I got that opportunity, and for that I will be forever grateful," Swift said.

He said the new commissions legislation appears to preclude defendants' getting a fair trial.

"A zealous defense is essential to any process that works," Swift said. "What has given the commissions any integrity so far is the ability of defense council to raise the case and concerns in all federal forums and the commissions themselves, and when necessary, in the media."