VT lawyers describe Guantanamo challenges
MONTPELIER – A Vermont attorney known for representing people charged with some of the state’s worst crimes says representing a client held at the Guantanamo Bay prison in Cuba was the most surreal experience he has ever had.
St. Johnsbury attorney David Sleigh made the comments after a review board recommended that his client Abdul Zahir — an Afghan taxi driver and low-level translator for the Taliban be released after more than 14 years. Sleigh has been working on the case with fellow Vermont attorney Robert Gensburg and a military lawyer.
No charges were ever filed against Zahir, now 44.
“After 14 years, it was as if you got arrested, served your sentence without any preliminaries or trial and then found yourself at a parole hearing arguing why you should get out,” Sleigh said of a hearing last month that led to the decision that Zahir could be freed. “I think that’s right out of ‘Alice in Wonderland’: sentence first, trial later.”
Sleigh and Gensburg are part of what is known informally as the Guantanamo Bay Bar Association, a loose group of about 600 attorneys nationwide who donate their time and pay their own expenses to represent some of the people believed by the U.S. government to pose a threat. They work to understand a legal system that doesn’t conform to the rules they learned in law school and practice at home.
There are the practical challenges, such as having to travel to Guantanamo to talk with their clients and then having to work through translators, and the attorneys are not able to keep their notes, which are presumed to be classified until the government decides otherwise.
There are also legal challenges such the grounds used to determined who can be detained, charges that are vague and changing, and the fact that attorneys are frequently unable to directly question the people making accusations against their clients.
“It’s unlike any court that they’ve ever been to in the United States,” said Air Force Lt. Col. Sterling Thomas, a former military prosecutor who has represented Zahir along with Sleigh and Gensburg.
Thomas compares the legal system at Guantanamo to being on a mountain and given a box of airplane parts, then being pushed off and told to build the plane while falling.
The public affairs office at Guantanamo Bay referred requests for comment on the criticisms to the Justice Department in Washington, which declined comment.
Over the years, large law firms have provided younger attorneys who have cycled through Guantanamo, said Shayana Kadidal, the senior managing attorney of the Guantanamo project for the Center for Constitutional Rights, which he described as a nonprofit civil liberties law firm that has helped provide legal representation for Guantanamo detainees.
“One of the nice things now that we are in Year 14, is a lot of the small practitioners, like Bob and David, they have been the same face for their client throughout, which I think is typically a nice thing for the client,” Kadidal said.
Sleigh, who represented a woman charged with killing a social worker and three relatives, said it’s a coincidence that he and Gensburg — who have offices in the same building but are not part of the same firm — were recruited about a decade ago to represent Guantanamo detainees.
“We do other things to make a living, but at our core we both believe that the United States Constitution is the greatest experiment in human history,” Sleigh said. “And we saw this as a real assault on that and thought it was our duty to get involved when we were asked.”
A summary of Zahir’s case posted on a Defense Department website said that the board determined Zahir played a limited role in Taliban activities before his 2002 arrest in Afghanistan and that he was probably misidentified as someone with ties to an al-Qaida weapons operation. While Zahir has been cleared for release, it’s unclear when that will happen or whether he will be allowed to return to Afghanistan.
“This should have happened in 2007, 2008,” said Gensburg, who has practiced law in St. Johnsbury for 49 years and now focuses on civil cases. “David and I have been trying for 10 years to get the government to charge him with something so that we could have a trial — that’s how we do things in this country — and have a neutral person say whether he’s guilty or not guilty.”