Denbeaux & Denbeaux: Defending an American Value

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Returning to Guantanamo

Three months after their first visit, Mark returned to Guantanamo. "There was little lawyering to be done," he remembers. Notes were held by the U.S. government, some were lost, some were classified; mail was not delivered; phone calls were impossible. "Attorney-client access is failing at all levels," wrote Mark, in the unclassified portion of his brief.

While he was at Guantanamo, Mark received a personally devastating e-mail. Barry May '65, one of his closest friends—his comrade from Wooster days who had accompanied him on the Selma civil rights march—had died unexpectedly of a heart attack. A bureaucratic nightmare followed, as Mark struggled to find a way to leave the prison camp in time for the funeral.

Back at Seton Hall Law School, Mark's students learned of his loss. Following a lecture, a few approached him, wondering if they could help with the Guantanamo case. Yes, Mark told them, they could.

Crunching the numbers

Although it seemed as though little could be done to help Rafiq Basher and Mohammed Rahman, Mark had an insight that reframed the issue and garnered national media attention for the Denbeaux team.

While hundreds of lawyers had been working on individual cases, no one had looked at the aggregate data. "I'd been getting lists, charges, evidence, findings, and it just seemed like somebody ought to look at them and see patterns," says Mark. "Everything about the system always involves treating people as individuals, as specific details, case-by-case."

And it was natural to want to tackle individual cases—to question why this man had been picked up because he was wearing a Casio watch, or this one because he owned a Kalashnikov rifle, or this one because he was wearing drab, olive-colored clothes.

The lawyers were itching to take the cases to trial. But trials were denied, and linking detainees to specific allegations was denied. So the Denbeaux team and Mark's students found another way. "Together, we read through all 517 of the government's findings, listing every reason that the government gave for the arrests, and every fact to support it. Our reasoning was, ‘Let’s trust the government; let’s assume they’re right; we’ll take the
government at its word and just see who it says these people are.’

"Our report doesn't address if the prisoners are innocent or guilty," explains Mark. "Our report isn't taking into account a single thing that any client has said to anybody. Our report only focuses on the government's findings, which gives it special clout, because the government can't argue with it."

With eight computer-savvy law students at the helm, the Denbeauxs spent three months building a massive database. When they released it in Feb. 2006, the following facts sped around the world.

Only 5 percent of Guantanamo Bay detainees were captured by U.S. forces. Eighty-six percent were arrested by either Pakistan or the Northern Alliance and turned over to the U.S. at a time when the U.S. was offering large bounties for the capture of suspected enemies. Flyers read, "Get wealth and power beyond your dreams… You can receive millions of dollars helping the anti-Taliban forces catch al Qaeda and Taliban murderers. This is enough money to take care of your family, your village, your tribe for the rest of your life. Pay for livestock and doctors and school books and housing for all your people."

Only 8 percent were characterized as al Qaeda fighters. Of the remaining detainees, 40 percent have no definitive connection with al Qaeda, and 18 percent have no definitive affiliation with either al Qaeda or the Taliban.

The government has detained people simply because of their affiliation with certain groups—groups not even on the U.S. Department of Homeland Security terrorist watch list. Moreover, the nexus between detainees and such organizations varies considerably. Eight percent are detained because they are deemed "fighters for"; 30 percent considered "members of "; and a large majority—60 percent—are detained merely because they are "associated with" a group or groups that the U.S. government asserts are terrorist organizations. For 2 percent of the prisoners, their connection to a terrorist group is unidentified.

The release of the information—picked up by Associated Press and used in major media across the country—changed the national dialogue. "Our report demonstrated that these prisoners weren't terrorists," says Josh. "Not a single one of these people is charged with being a terrorist."

"Before our report, when the administration spoke of Guantanamo Bay, they used it as an illustration of how they were helping the U.S. Now they are very, very quiet. You haven't heard the administration call these people ‘the worst of the worst' for a very long time," says Josh.

Following the release of the report, the government reclassified 30 percent of the prisoners as NLECs (No Longer Enemy Combatants). "My question," asks Josh, "is what part of the Guantanamo Bay experience managed to rehabilitate these ‘enemy combatants'? Five years without a trial in solitary confinement and the detainees actually decide that America is the good guy?"

The reclassification did not result in release, but in a transfer from one area of the prison to another.

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