around the bar
April 26, 2011

Lawyer for Guantanamo Detainees: Nothing More Powerful than Federal Courts

_ News Service
By Kristin Loiacono

Attorney Douglas Spaulding

Attorney Douglas Spaulding addresses the audience at a Law Day event.

As holidays go, you likely won’t find the words “Law Day” pre-printed on any desk calendars, but for lawyers like Douglas K. Spaulding — who has represented three Guantanamo detainees petitioning for a writ of habeas corpus — the annual May 1 celebration is a reminder of the backbone of the legal profession:  The United States Constitution.

“After I saw the pictures of the detainees, it made me wonder, who are those guys, what had they done …” and to what legal protections are they entitled, Spaulding recounted Monday to an audience of high school teachers gathered at the National Press Club for a Law Day program.

Spaulding asked his firm, Reed Smith — where he represents clients such as mutual fund companies and banks — if he could represent, pro bono, some of the men held at Guantanamo.

The U.S. Constitution provides for the “privilege of the writ of habeas corpus,” which allows a prisoner to challenge imprisonment. The privilege cannot be suspended except “when in cases of rebellion or invasion the public safety may require it.”  For example, President Lincoln suspended it during the Civil War.

Spaulding said that, if anyone ever needed a lawyer, it is the Guantanamo detainees.

And, the U.S. Supreme Court agreed, essentially, in a series of three cases — Rasul v. Bush, 2004; Hamdan v. Rumsfeld, 2006; and Boumediene v. Bush, 2008.  Spaulding explained that the 2008 decision said, “Attempts to strip [the detainees] of their habeas right is unconstitutional — not just a violation of a statute.”

Spaulding grew up in a Marine Corps family.  His mother served during World War II and his father was killed serving in Vietnam.  Spaulding served four years in the Marines before going to law school.

He reflects on the potential internal conflict between his Marine Corps service and his service to the Constitution, and concluded, “What I’m doing is probably the most patriotic thing I can be doing at this stage in my life.”

Spaulding has worked with three detainee clients and has made more than a dozen trips to Guantanamo. Two clients have been released.  The third — a professional dancer from Russia who joined the Russian army — is now in his 10th year of captivity. His case was tried about a year ago and, said Spaulding, the judge wrote a 44-page opinion ruling “that the government failed to prove [his client] was a terrorist and directed the government to take steps to release him.”

The U.S. government has appealed that decision, and in the court of appeals, noted Spaulding, “No detainee has yet won.”

Now 172 detainees remain at Guantanamo.  According to Spaulding, fewer than 50 have been designated for indefinite detention and about a dozen are slated for criminal prosecution.  The cases will be held at military tribunals in Guantanamo instead of in the federal courts.

Spaulding believes there are “two narratives” at play:  the Western narrative — the United States represents the rule of law; and the Bin Laden narrative — the United States is the great Satan.

“The more we can do to demonstrate our narrative and our core principles, we will ultimately be successful in the battle.  There is nothing we can do or say that is more powerful than trying Guantanamo detainees in Article III [federal] courts,” said Spaulding.

The first detainee who will be tried in a military commission is Abd al-Rahim al-Nashiri. Prosecutors are seeking the death penalty against the man who is accused of masterminding the USS Cole bombing.

Spaulding’s presentation to high school teachers highlighted the theme of Law Day 2011, The Legacy of John Adams: From Boston to Guantanamo.  The event was sponsored by the _ and the Close Up Foundation, a nonprofit organization that educates and inspires young people to become informed and engaged citizens.

ABA President Stephen N. Zack, who is the organization’s first Hispanic  president, said, “I picked the Law Day theme after coming back from Guantanamo.”  He and his family fled Cuba in 1961, and he had not returned for nearly 40 years.

Zack noted that, ever since John Adams represented the British soldiers who were  accused of killing five colonists in the Boston Massacre, there have been many lawyers throughout America’s history who have similarly adhered to the rule of law and defended the rights of the accused, even in cases involving unpopular clients and causes.

“Our constitutional democracy sets us apart. Our Constitution protects the minority from the tyranny of the majority.  No man is above the law and no one should be beneath its protection,” said Zack.