Describing the Guantanamo Bay prison in Cuba as an “Alice in Wonderland” place where detainees are deprived of their civil, human and legal rights, Boston attorney Stephen Oleskey was harshly critical of the Bush and Obama administrations, as well as of Congress, for routinely flouting the rule of law.
Oleskey, a prominent Boston attorney who is known for his advocacy on behalf of the poor and disadvantaged, was among the lead litigators in defending “the Algerian six,” a group of Bosnians who were born in Algeria and imprisoned at Guantanamo without charges ever being lodged against them.
In the wake of the September 11, 2001 attacks and passage of the USA Patriot Act, which gave the executive branch broad unfettered powers to combat terrorism, the six Bosnians were turned over to U.S. intelligence officials in January 2002 and taken to Guantanamo, where they were classified as “enemy combatants.” They were accused of crafting a plan to bomb the U.S. Embassy in Sarajevo, although no credible proof existed.
Oleskey, who spoke during Tuesday’s Common Hour, was an attorney with WilmerHale, a law firm with 1,100 attorneys in eight locations when, in 2004, he was contacted by several of the detainees’ wives in Bosnia. The women asked if the law firm would be willing to represent their husbands, who had been held for nearly three years, tortured, deprived of their rights and labeled “the worst of the worst” for their alleged terrorist activities.
A graduate of Wesleyan University and the New York University School of Law, Oleskey acknowledged that at the time, “it wasn’t very popular to defend people in Guantanamo Bay.” Nonetheless, he and his colleagues accepted the case on a pro bono basis. Had the law firm charged for their legal representation, which included 35 trips to Guantanamo Bay and repeated trips to Bosnia and Brussels, the fees would have amounted to $26 million, Oleskey said.
In Washington D.C., the attorneys filed a petition for a writ of habeas corpus, which requires that a person under arrest be brought before a judge or into court. The fundamental legal principle of habeas corpus, which is embedded in the Constitution, ensures that a person cannot be detained if there is insufficient cause or evidence.
Oleskey and his colleagues argued that the six should not be subjected to indefinite incarceration without legal protections. “We were betting the courts would respect the Constitution,” he said.
Indeed, in 2008, the U.S. Supreme Court narrowly ruled in Boumediene v. Bush that detainees and foreign nationals had a right to file for habeas corpus in federal courts. Soon after, a U.S. District Court judge ordered that five of the Bosnians be released based on insufficient evidence.
Given the government’s powers to deny the men their legal rights, Oleskey said it was extremely difficult to mount a defense. The Bosnians were not allowed to answer questions, see the prosecution’s 670 pages of redacted documents or appear in court. The only people allowed in the courtroom were the attorneys and the judge. Two of the men were permitted to testify on closed circuit TV.
After the court ruled in the Bosnians’ favor, then-President George W. Bush had an opportunity to file an appeal but ultimately decided against it. Three of the men returned to Bosnia and two found refuge in France. The sixth man remains incarcerated at Guantanamo.
Oleskey said there are still 164 people at the prison in Cuba who have been cleared to be released but there’s no place to send them. He attributed their continued detention to “political demagoguery” and this country’s unabated war on terrorism, which has enabled the U.S. to fire drones at innocent victims and detain people based on the flimsiest of suspicions.
Although Obama had campaigned for the presidency on a pledge to close the prison at Guantanamo, Oleskey said he doesn’t believe that’s going to happen. “The political cost would be too high,” he said.
However, Oleskey remained critical of the Patriot Act and the ability of the government to, in essence, wage war against so-called enemy combatants without a formal declaration of war.
“If we’re living in a country with a justice system that’s the best in the world, we have to step up even when people are called the worst of the worst,” he said, alluding to the six Bosnians.
“It’s pretty hard for us to look good when we’re doing the same things that the Chinese and other [totalitarian] regimes are doing.”
Oleskey, who has since joined the firm of Hiscock & Barclay, LLP, has represented an array of corporations, partnerships, joint ventures and individuals in trials, arbitrations and mediations in Massachusetts and federal courts. In 2007, he received the President’s Award from the Boston Bar Association as well as the Pro Bono Publico Award from the American Bar Association for his pro bono representation of the clients detained at Guantanamo. He was also featured in a 2008 article in Time magazine for his work on behalf of the Bosnians.
The Common Hour event was sponsored by Trinity’s Human Rights Program and co-sponsored by the Political Science Department, the Public Policy and Law Program, the Center for Urban and Global Studies, and the Office of Community Relations.