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Gitmo Attorney Asks Why US Fears Own Judicial System; Try Them, or Send X'Ers Home to Kuwait

By Francis A. Clifford Cardozo
Arab Times
November 20, 2006

KUWAIT CITY: A prominent US lawyer representing the Kuwait detainees in Guantanamo says if the US government is not willing to give the detainees a fair hearing in the US courts, then it should repatriate the detainees to Kuwait to receive a fair hearing in its courts. David Cynamon told the Arab Times in an exclusive interview that "if the US government has evidence that the Kuwaiti detainees were fighting alongside the Taleban against the US, or are members of al-Qaeda, then it should present that evidence to an impartial, independent judge, and also allow the detainees to prove their innocence."

The lawyer observed that the remaining four detainees have been in Guantanamo for five years, isolated from their families and the rest of the outside world, with no fair hearing of their guilt or innocence and no idea as to when they will be released. "We ask, why is the US government afraid of our own judicial system - a system that has been one of our country's greatest strengths - to hear the evidence and determine whether the detainees are properly held at Guantanamo?" Cynamon is a senior litigator with more than 30 years of experience in complex civil trial and appellate litigation, and has argued numerous cases in US federal and state courts.

He received his law degree from HarvardLawSchool and his undergraduate degree from BrownUniversity. Of the 12 Kuwaitis who were detained at Guantanamo , 8 have already been repatriated to Kuwait and Cynamon is representing the remaining four and the Kuwaiti Family Committee, which consists of family members of the Kuwaiti detainees. The four remaining Kuwaitis are Fawzi Khalid Abudulla Fahad al-Odah, Fouad Mahmoud al-Rabiah, Khalid Nijer Naser Al-Mutairi, and Fayiz Mohammed Ahmed al-Kandari. Explaining his stance on the issue of the detainees, Cynamon remarked that "Our position, and the position of the Kuwaiti Family Committee, is very simple and basic: each of the detainees should be given a fair hearing to determine whether he is properly detained as an enemy combatant or whether he is an innocent man who was captured and turned over to the US for bounty money."

"And if the US government does not want to have trials of the detainees in our own courts, why has it not allowed all of the Kuwaitis to be returned to Kuwait to face trial there?" he demanded to know. "Kuwait is a close ally and supporter of the US. It has an independent judicial system, like the US. Kuwait has no interest in protecting terrorists or enemies of the United States. Give the detainees a fair hearing in the US or in Kuwait, but give them a fair hearing. That is all we ask," he added. Asked to comment on the damage the Guantanamo issue has done to the credibility of the US government, Cynamon noted that "We believe that Guantanamo has done enormous damage to US credibility, as shown by the numerous protests, editorials and condemnation both within the US and around the world.

In fact, every one of the top 100 newspapers in America has editorialized in the last two years against US policies in Guantanamo. A post-election poll shows that a majority of Americans believe it is unfair to detain people indefinitely without a fair hearing." "What has made the US a great country and a beacon of hope for the world is not its military or economic strength, but its commitment to the values of democracy, freedom and the rule of law. The torture and abuse of prisoners at Guantanamo, and the fact that the government has held hundreds of men there for years without giving them the most basic right of a hearing to determine whether they are guilty or innocent, has made a mockery of those values. We cannot effectively spread democracy, or claim the moral high ground in the war against terror, if we do not adhere to our own values."

Replying to another question, Cynamon said the ability of the detainees to sue the US government in any international court remains unclear, adding that it is doubtful that the US would recognize the jurisdiction of any international court to hear such a case. To a question as to when the Kuwaiti detainees are expected to be released, Cynamon observed that it is impossible to know when the remaining detainees will be released, saying the US Government's position is that they can be held indefinitely until the US decides that they are no longer a "danger." He said that the Kuwaiti Family Committee and the Kuwaiti Government have been working actively to obtain the release of the detainees through diplomatic channels.

"As a result of those efforts, including a meeting between the Amir and President Bush on Sept 4, 2006, 8 of the 12 Kuwaiti citizens have been returned to Kuwait. It is our hope that the remaining four will be released within the coming months, but unless and until they are given a right to a fair hearing we cannot be sure when, or whether, their release will happen," noted Cynamon. Touching on the US government's latest decision to deny lawyers access to the detainees, Cynamon said "The recently passed Military Commissions Act would eliminate the writ of habeas corpus for Guantanamo detainees.

The writ of habeas corpus has existed for almost 800 years, since the signing of the Magna Carta in England, and provides the basic right to anyone, citizen or non-citizen, to be able to challenge his detention before an impartial judge and to require the government to present evidence to support the detention. If the Military Commissions Act is upheld, the elimination of habeas corpus not only could but absolutely would result in abuses." First, and foremost, the detainees would remain at Guantanamo indefinitely, at the whim of the government, with no fair opportunity to prove try to prove their innocence. Moreover, the government has already taken the position that under the new law, lawyers for the detainees should be limited to only four visits, added Cynamon.

Almost 60 per cent of voters in the recent US elections are of the view that the prisoners being held in GuantanamoBay should either be granted a hearing before an independent judge or be released to their home countries, and fewer than 20 per cent of those polled believe that the detainees should be held indefinitely. Reacting to the polls, Khalid al-Odah, father of one of the prisoners and head of one of the world's leading detainee-rights groups, said he is encouraged by the results and urged US government officials to heed the will of American voters. "I am heartened that so many Americans agree that my son and others in GuantanamoBay deserve a fair trial," said al-Odah, leader of the Kuwaiti Family Committee.
He and his family haven't seen or talked to his son, Fawzi, for five years since he was taken prisoner and sent to Guantanamo. "It is my sincere hope that the new leadership in Congress will make it a priority to right the wrongs the Bush administration has committed at GuantanamoBay. The actions of this administration have damaged the lives of these men and their families, it has damaged the US image as a beacon of human rights, and most importantly, it has damaged Americans' faith in their legal system. It's time for America to start trusting its judicial system again." The Kuwaiti Family Committee is sending results of the poll to every member of the US House and Senate, including the newly elected representatives.

The Kuwaiti Family Committee was founded five years ago by the families of the Kuwaiti detainees. Since then it has undertaken legal, media, and diplomatic efforts on behalf of the Kuwaitis and others in GuantanamoBay. The major goals of the organization are to secure due process for the prisoners in Guantanamo and to help put a human face on the detainees. The world, Cynamon says, knows about the torture and abuse of prisoners that occurred at Guantanamo and other US-run prisons and that after the US Supreme Court ruled in 2004 that the detainees were entitled to habeas hearings and to counsel, the situation improved. "But if the government is once again permitted to cut off access to the detainees, and if there is no oversight, what would prevent the torture and abuse from returning?" he demanded to know.

Mooting the point further, Cynamon went on to say that the two main concerns are that the detainees will never have an opportunity for a fair hearing before a judge and will lose even their access to counsel. In addition, this law has further discredited Guantanamo and the US government in the eyes of the world, and, indeed, in the eyes of many US citizens, he added. Expressing his views on the US government's decision to term the detainees as combatants, Cynamon said the US government claims that all of the detainees are "enemy combatants," but it has consistently refused to allow a fair hearing before an impartial judge to hear the evidence in this regard.

Unless and until such a hearing is held, and unless and until a court concludes that the evidence shows that any of the detainees was in fact fighting against the US, the term "combatant" cannot be justified with respect to the Kuwaiti detainees, he added. "The mail sent to and from the detainees, including mail to and from their lawyers, is already reviewed by the government. The government is not supposed to do anything with the legal mail except to remove information that is considered classified. But we know that often non-legal mail sent to or from the detainees does not reach its destination."

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