"Bet when you were back in law school you never imagined that one day you would be flying a crop duster to Cuba.” I smiled in return at my new friend, a Department of Defense prison contractor. He and I occupied two of the nine seats of a badly weathered prop plane that flies civilians once a day between Fort Lauderdale and the leeward side of the U.S. Naval Air Station at Guantánamo Bay (Gitmo). The engine noise made conversation impossible, but as I settled in for the three-hour flight into a menacing sky I thought to myself, “Well, yes and no.”
I graduated from Notre Dame Law School in 1975, a time when our country had suffered through the imperial abuses of Richard Nixon’s second term. Thanks largely to good lawyering, Nixon had been driven from office, and his most compliant subordinates went to prison. In United States v. Nixon, the Supreme Court reaffirmed the principle that no one, not even the president, is above the law. It was an exciting time to be a law student, especially for one whose interests did not naturally turn to trusts and estates.
Watergate’s legacy reaffirmed for Americans the historic principle of “the rule of law,” whose basic tenets are fairness, accountability, and individual rights. I have spent my career first prosecuting, then defending criminal cases, and have represented both plaintiffs and defendants in civil lawsuits. During that time, I have come to know both the sacredness and the fragility of that rule. I have an unshakable belief that in a U.S. courtroom the right thing usually happens when the principle of “the rule of law” is honored. In route to some courtroom, or to some jail, I have flown in even smaller planes in worse weather. Still, nothing prepared me for Gitmo.
Guantánamo Bay was acquired by the United States as a perpetual leasehold at the conclusion of the Spanish-American War. Termination of the lease requires consent of both Cuba and the United States. The base has had little strategic military significance for decades. But in 2001 when the Department of Defense was looking for a place to establish a five-star interrogation facility beyond the meddlesome purview of the media, human-rights advocates, and the U.S. courts, Guantánamo Bay answered very well.
The swift defeat of the Taliban and Al Qaeda in Afghanistan in the fall of 2001 resulted in the capture of hundreds of Islamic fundamentalists. Initially they were kept shackled in ancient prisons in places like Kandahar, where the conditions were filthy and primitive. Beginning in the spring of 2002, approximately five hundred of them were hooded, handcuffed, drugged, and flown to newly constructed prison facilities at Guantánamo. Most have remained confined there in maximum-security cells ever since, although only a handful have actually been charged with any crime.
Two clients of mine, both young Syrian men, are among those imprisoned at Gitmo. Bounty hunters handed them over to our military forces in the fall of 2001. Orders entered in their cases that restrict the use of information from their files and the security obligations assumed by all lawyers who act on behalf of Gitmo prisoners prevent me from disclosing much about their circumstances. Nonetheless, although President George W. Bush recently ordered fourteen alleged major terrorists transferred to Gitmo from secret prisons elsewhere, most Gitmo prisoners present no such danger. In 2001 they were young and unemployed and swept up in world events. They were easily emboldened by the hateful fervor of some Islamic clerics. But a substantial number of them never fired a shot at anyone, never possessed a weapon, and had no terrorist training. One such prisoner is my twenty-five-year-old Syrian client who had been living in Afghanistan for nearly a year before 9/11 and was captured when, fearing that as an Arab his life was in jeopardy once that war began, he attempted to flee to Pakistan.
In 2001, prisoners captured in or near Afghanistan were still regarded by the administration as potential intelligence assets. Their cases were immediately taken over from the military by the president’s lawyers who declared all detainees to be “enemy combatants,” a classification that had no satisfactory definition; relied on that classification to deny prisoners any protections under international treaties, including the Geneva Conventions; made allowances for torture; and deemed Guantánamo Bay to be foreign soil beyond the reach of U.S. courts and therefore a perfect place for unrestrained interrogation.
Gitmo is a menacing environment calculated not to punish or reform, but to frighten. Prisoners are a world away from anything or anyone they know, and their religion, upbringing, and culture make them uniquely vulnerable. Interrogations are conducted almost daily, even though it is generally acknowledged that little useful information can be extracted from the prisoners after their many years in custody. My clients are generally confined to small maximum-security cells. If they protest, say by spitting or by throwing urine, they are placed in solitary confinement. The space provided for my meetings with them is small and hot. We sit at a table in a windowless room where they are chained to the floor. With the assistance of my interpreter, we talk with each other as we bake in the heat.
The Bush administration reasons that since the “war on terror” is limitless, so too may be the incarceration of enemy combatants; and since the war is global, enemy combatants may be apprehended anywhere and deposited at Gitmo. And by the summer of 2002, there they all were, branded as terrorists but charged with no crime, routinely shackled and interrogated, completely at the mercy of Department of Defense personnel who made and violated the rules as they went along.
It should be clear what we lawyers seek on behalf of our Guantánamo clients-and what we don’t seek. Contrary to what some defenders of the administration’s policies have said, no lawyer for the detainees has argued that anyone should have been read Miranda rights after being captured on the battlefield. Raising the false specter of Miranda was a calculated effort to persuade voters to support the administration’s efforts to strip U.S. courts of the authority to review habeas corpus petitions filed on behalf of our clients. Nor do we argue that the United States cannot detain persons captured in Afghanistan or punish those fairly convicted of war crimes. We do adamantly maintain, however, that our clients may not be jailed without the oversight of our courts, because doing so is contrary not merely to long-standing principles of Anglo-American law but to basic notions of human dignity.
It wasn’t until June 2004 that the Supreme Court issued a decision on whether the president’s war powers allowed him to ignore these long-standing principles of law. First in Rasul v. Bush, the Court emphatically rejected the argument that Guantánamo was beyond the bounds of judicial review. Then in Hamdi v. Rumsfeld, the Court required that enemy combatants be granted “a meaningful opportunity to contest their detention before a neutral decision maker.”
A foothold for judicial review of the administration’s internment policies had been established. American lawyers-including a number of the Judge Advocate General officers who have courageously put their careers at risk-heeded the call, and urged our courts to address the question left unadressed in Hamdi and Rasul: May a foreign national be held in a maximum-security prison for the rest of his life, in territory over which the United States has exclusive jurisdiction, on the authority of the president alone, without ever being charged with a crime, and without meaningful judicial review?
Part of that question was answered by the Supreme Court this past June in a case titled Hamdan v. Rumsfeld. In response to the Court’s criticism in Rasul and Hamdi, Department of Defense officials, ignoring their own precedents for courts-martial and special military tribunals, invented “military commissions” to adjudicate the cases of the few enemy combatants actually charged with war crimes. Two years later in Hamdan, the Court rejected military commissions because they denied even basic requirements of due process, such as the right of the accused to be present during all portions of his trial, thus violating both U.S. law and the Geneva Conventions.
Still, Hamdan did not address the plight of the overwhelming majority of the enemy combatants who have never even been charged with a war crime-all but about ten of the approximately four hundred fifty still imprisoned. Their situation is worse than those officially charged because their due process protections are even fewer than those attached to the military commissions rejected in Hamdan. Once a year an Administrative Review Board (ARB) consisting of three military officers, reviews each uncharged man’s file to determine whether he satisfies the definition of enemy combatant and poses a continuing threat to the United States. The enemy combatant may not review much of the information used by the ARB, and he may not have the assistance of a lawyer. Allegations in the file that are the product of torture and abuse may be relied on by the ARB. Notwithstanding all of that, the prisoner bears the burden of proving he is not an enemy combatant, a vague term that has no fixed meaning in law. This makes it impossible for him to defend himself.
Not surprisingly, many of the prisoners have refused to participate in this charade. Meanwhile, their habeas corpus cases in federal court are awaiting a decision by the United States Court of Appeals for the District of Columbia, which will most certainly be appealed to the Supreme Court. That means adding at least another two years of uncertainty for the uncharged enemy combatants, men who face the prospect of dying a lonely death in a prison halfway around the world from their home. The president and the Republican Congress are currently pushing through legislation authorizing revised military commissions. The proposed legislation does not cure the procedural defects of the military commissions, and if passed it will eliminate habeas corpus review for our clients in federal courts altogether.
Near the conclusion of Graham Greene’s novel The Tenth Man, the main character, Charlot, a French lawyer, is desperate to preserve his life, a life rendered perilous by his own deviousness. Greene sizes up Charlot’s chances: “In all his legal experience there has never been a case which didn’t contain an element of hope.” I’m afraid that so far, it has been only hope that I have been mostly able to offer my Guantánamo clients, and it has not always been received.
Understandably, it has been difficult for my clients to comprehend that an American would travel so far to assist them for no fee. I spent my initial visits dispelling fears that I might be another government inquisitor posing as a lawyer. Subsequent visits had elements of eighth-grade civics lessons as I explained the separation of powers doctrine and asked them to trust that our sovereign, President Bush, could be checked by an equally powerful court. The Supreme Court’s Hamdan decision in June has been helpful here. But when my clients ask when their cases will be heard and whether their confinement will ever end, it is more difficult for me to find words of encouragement. They then turn to Allah. My clients have been imprisoned at Guantánamo for more than four years. The court processes meant to address their particular circumstances of confinement grind on. I have watched their physical and emotional health worsen. And as noted here, Congress and the president are currently attempting to eliminate further judicial review in their cases. I can be hopeful but not optimistic.
Much has been written about this administration’s arrogant disregard of other cultures in pressing its war against terrorism. To the extent that that is true, it is a lesser offense than its willful abuse of the culture of the United States, which is based on the rule of law. Law created us. We invest enormous resources in the enactment, enforcement, and interpretation of laws designed to preserve our way of life in a rapidly changing world. We look to law as the expression of our collective morality. Law is our touchstone, and we rightfully expect adherence to it. With Gitmo, administration lawyers have aided and abetted a deplorable assault on the rule of law by systematically violating it when it becomes inconvenient and abandoning it altogether for matters they regard as more important. The legislative proposal the president and his lawyers now advocate is more of the same, and because of that many career military lawyers won’t support it.
In a time of war there is an inevitable tension between law and necessity. Nonetheless, Americans have historically found a way to protect the nation’s security while preserving our liberties. For the Gitmo lawyers and their clients, it is to our courts that we have turned once again to reestablish the balance.