PITTSBURG/KUWAIT: Lt Col Barry Wingard has spent four years fighting a losing battle. Col Wingard, a military attorney and Allegheny County public defender, represents Fayiz Al-Kandari, a Kuwaiti who has been held at Guantanamo Bay detention center since 2002.
In June, the charges against Al-Kandari were dropped with no explanation. In just about any judicial realm, that’s a victory.
In Guantanamo, it means instead that Col Wingard’s client is now in the group of prisoners on indefinite detention. Since the government planned no prosecution against his client, it saw no reason for Col Wingard to work on the case.
Col Wingard’s access to Al-Kandari was reduced. He can no longer travel to Kuwait or elsewhere to investigate the case. His correspondence with his client is reviewed. Government translators/interpreters are no longer provided to enable him to communicate with his client. He has regularly traveled to Guantanamo since taking the case, spending a week of each month there. His most recent planned military transport flight was canceled.
These restrictions began about the same time as a new protocol for civilian attorneys representing Guantanamo prisoners was put into effect. Lawyers were told they had to sign a memorandum of understanding in which they agreed to certain restrictions in order to continue to see their clients.
Col Wingard, 45, long maintained that the charges against his client — material support of terrorism and conspiracy — were based on flimsy, third-hand evidence. But now that they have been dropped, his client’s situation is worse, since there is now no real hope of a judicial proceeding, and his ability to advocate for Al-Kandari is reduced.
Air National Guard Col Wingard served in the Army and then as a US Air Force JAG (Judge Advocate General) attorney. He prosecuted more than 100 cases in Iraq involving more than 170 individuals who had attacked coalition forces in Iraq. He also investigated various crimes in Bosnia during the conflict there.
Col Wingard, of Dormont, is married and has two children, ages 3 and 5. He lives mostly in Washington, DC, where he works in the Office of Military Commissions (the military judicial system in place to handle Guantanamo). He intends to return to his job as an Allegheny County public defender when his Guantanamo work is done. There is no set date for that, but the colonel hopes to finish next year.
Al-Kandari is one of the 166 men still held at Guantanamo Bay. The prisoners now fall into three rough groups: those the government says can be tried; those that are cleared for release, but have not been released because there is nowhere for them to go; and the 40-plus who are to be detained indefinitely.
Since it opened as a detention center for terrorism suspects in 2002, Guantanamo has spurred a torrent of litigation. (“They litigate everything but the breakfast cereal down there,” one Department of Defense official said — off the record.)
At the heart of much of it is the question of whether the US government can lawfully hold prisoners without charging them or giving them an opportunity to appear in a judicial proceeding to hear the evidence and defend themselves.
Department of Defense spokesman David Oten gave the rationale for the government’s position: “The United States is detaining individuals at Guantanamo Bay pursuant to the Authorization for the Use of Military Force, as informed by the law of war. Detention in wartime has long been recognized as legitimate under international law. We hold at Guantanamo detainees we assess as continuing to pose a threat in our ongoing armed conflict. And we will continue to hold these individuals in a manner that complies with our domestic and international obligations, and is consistent with our values.”
Though President Barack Obama came into office saying he would shut the facility down, in the end his administration has taken much the same stance as that of the Bush administration regarding the need for the facility and the practice of indefinite detention for prisoners. It has vigorously defended a raft of legal challenges. Although detainees won a number of them — gaining the right to make habeas challenges in US courts — the practical effect has been negligible. Only four men charged have been tried. Men cleared for release remain imprisoned. And the group of men the government says it doesn’t plan to charge have no clear path to trial or release.
Of the review procedures for detainees, Oten of the Defense Department said, “As a discretionary matter, the United States has reviewed the cases of each individual at Guantanamo and determined that some could be eligible for transfer, pending appropriate, credible security assurances from receiving governments. Just as we do with prisoners of war in more traditional armed conflicts, we acknowledge that the threat they pose may change over time.
“In today’s conflict, the threat posed by a particular detainee may be mitigated through participation in a reintegration program or through other focused measures to prevent re-engagement. That is why we have transfer policies in place and review mechanisms to ensure we only detain those whose threat cannot otherwise be mitigated.”
But in claiming it has the right to restrict access to prisoners by their lawyers, the government was saying that it had control of how legal review of cases was to go forward.
The Memorandum of Understanding requirement was challenged and on Sept 5, US District Judge Royce Lamberth said the government has no right to deny counsel access to detainees, issuing a stinging rebuke in his ruling. Writing that the federal government is confusing “the roles of the jailer and the judiciary,” Judge Lamberth struck down the military’s assertion that it could veto meetings between lawyers and detainees.
The judge said the government has the right to run the facility at Guantanamo, but that the courts have authority to make sure prisoners have access to the courts, and that can’t happen unless they have access to their lawyers.
Justice Department spokesman Dean Boyd said, “We have no comment on whether the Department plans to appeal the Lamberth decision on counsel access to GTMO detainees.”
The nature of restrictions on military lawyers like Col Wingard is different, but the effect is the same.
“They say, ‘We have no intention of prosecuting, so your request for travel is denied,’ ” he said.
Similarly, translators and interpreters are denied. Though Col Wingard has top security clearance, his correspondence with his clients (he also represents an Afghani and a second Kuwaiti) is now being reviewed.
Oten said the detention of Al-Kandari is legal — he filed a habeas corpus petition in federal court and the court ruled he was legally detained. The US Supreme Court declined further review of his case.
“There is no precedent for indefinite detention,” said Col Wingard. However, he said, “if the government says it can hold prisoners forever, don’t they get a lawyer forever?
“I take the position that I am still their attorney.”
He acknowledges his ability to act in his clients’ behalf or take action to change his status is extremely limited. “It’s frustrating from our end. They are strangling our ability to do our jobs,” he said. “We’re pretty much on the ropes as far as defending these guys.” But, he said, he and other attorneys in the defense section of the Office of Military Commissions are close to one another and united in what they are trying to do.
He has written opinion pieces for news organizations, including the Post-Gazette, and is active on social media in behalf of his clients and Guantanamo-related issues. What worries him most is what he sees as the acceptance within government and military circles of a situation that goes against basic American principles. “It has sunk in as the new norm.”
Many people came into the military or into government positions after 9/11, he said. “For them Guantanamo, indefinite detention is the norm. They don’t know another system.”
Once people accept the concept, “putting people away forever is the easy part.”
He said the debate has moved from whether it’s legal or justified to detain foreign combatants on an indefinite basis to whether it’s acceptable to do so to US citizens.
“The scariest development in the indefinite detention battle is that under the National Defense Reauthorization Act of 2012 recently signed, you as an American citizen can be detained forever without trial, while the allegations against you go uncontested because you have no right to see them.”
On Sept 12, US District Judge Katherine Forrest of New York ruled against the administration and the National Defense Reauthorization Act on the basis that the practice of indefinite detention violates the First and Fifth Amendments. On Sept 17, Judge Raymond Lohier of the 2nd US Circuit Court of Appeals stayed the ruling until Friday, when a 2nd Circuit motions panel took up the government’s request for stay pending appeal.
His work as a military defense attorney has put him at odds with the military. “Once I’m done here I will probably never get promoted. But what can you do? They hired me to represent these guys. I’m going to do it to the best of my ability,” said Col. Wingard. “In the big picture, it definitely looks like we’re losing. [But] here’s the deal: You don’t fight on issues in hopes you’ll win. You fight on whether they’re right.” – Pittsburgh Post-Gazette