Edited by Mark P. Denbeaux and Jonathan Hafetz, New York University Press, 420 pages, $32.95
‘Every historical era poses its great moral question,” writes Denny LeBoeuf, a contributor to “The Guantánamo Lawyers.” In this admirable compilation, Mark P. Denbeaux, a professor at Seton Hall University School of Law, and Jonathan Hafetz, a staff attorney in the ACLU’s National Security Project, have explored one of this generation’s great moral questions by assembling first-person reports from over 100 attorneys who represent prisoners held at Guantánamo Bay.
Denbeaux brings a wealth of experience to the task, having compiled the authoritative analysis of how prisoners came to Guantánamo, and having coordinated a national “Guantánamo Teach-In.” Hafetz’s experience includes representing Ali al Marri in the landmark case of an alleged enemy combatant confined for years in the United States without charges or access to counsel.
Though it is largely devoid of editorial comment, this volume is as chilling an indictment of the executive’s disdain for the rule of law as could be imagined. Through the words of their lawyers, we accompany prisoners from their arrival at Guantánamo in chains, through their years of interrogation and isolation, their sham status hearings, their improvised tribunals, and ultimately, in some cases, their release. This is a story that the government never intended to be told, because Guantánamo was to be a place where neither domestic nor international law applied. That the government was proved wrong, in a series of three U.S. Supreme Court decisions, is a tribute to the lawyers in this book.
I am no impartial reader, having submitted briefs in support of Guantánamo prisoners and attended military tribunal proceedings there, but I think it no exaggeration to say that the Guantánamo prison camp was founded on a lie. Until recently, Guantánamo never held the prisoners that Donald Rumsfeld called “the worst of the worst”— they were in CIA “black sites” at locations still undisclosed. Though every Guantánamo prisoner was classified by the president, often on appallingly inadequate evidence, as an “illegal enemy combatant,” only a handful have been charged with crimes. Most of them were captured nowhere near a battlefield or were sold into captivity for bounties. The irony is that, once Guantánamo came to house the true villains of Sept. 11, the facility and its system had been so discredited that many believe they can no longer be used for impartial judicial proceedings.
The details of what passes for law in Guantánamo will shock readers familiar with any concept of due process. Contributors recount how the prisoners got there; how they were intentionally isolated and disoriented, hooded, shackled, deprived of sleep and food, constantly interrogated, threatened with beatings, barred from learning of current events—in sum, subjected to a “torture culture” developed or authorized by a small group of government lawyers, including Jay Bybee, John Yoo and William Haynes, names that should be remembered in every American civics course that teaches about responsibility for treatment of prisoners of war. All this was presided over by a military task force whose Orwellian motto is “Honor Bound to Defend Freedom.”
Most of this description comes in the book’s longest section, “Red Tape and Kangaroo Courts,” which will be the part of most interest to lawyers. An excellent narrative interlude by Gary Isaac of Mayer Brown describes the efforts to save habeas corpus from Congress, and provides an enlightening peek into the role played by the man who was then the junior senator from Illinois. Later sections on torture, hunger strikes and suicides, while often heart-breaking, are less about the lawyers and more about the prisoners, and digress from the book’s main focus.
It would have helped to contrast the views expressed here with contributions from prosecutors or tribunal officials. Without them, the reader is left with the impression that every prisoner at Guantánamo is a victim of mistaken identity, or was blamelessly sold into captivity. It is, after all, their advocates—and only their advocates—who present these accounts, without input from the other side.
This lack of balance leads to the book’s biggest omission—failure to examine the government’s two justifications for its treatment of these prisoners: first, that Guantánamo is not so much a prison as an arena to gather intelligence.
According to this “mosaic” theory, Sept. 11 resulted from a failure of intelligence, and every prisoner is a potential source of information. Whether prisoners who have been isolated from enemy forces for up to seven years can provide credible intelligence may well be questioned, but the view persists.
Second, the Bush administration claimed that these fighters had to be kept off the battlefield. Of course, many of them were never near a battlefield to begin with, but after they have become radicalized by mistreatment, it would be no surprise if some of them have been turned into the enemies they were falsely accused of being in the first place.
Little of this reflects well on this country, and many contributors express their dismay and shame. A recurrent theme is the disbelief, among people here and abroad who had grown up believing in the United States as a beacon of freedom, that its legal system could sink so low.
Yet, this story is not fundamentally about the worst people in this country, but about the best. In the words of journalist Hannah Tennant-Moore, one of the few non-lawyer contributors, “as lawyers, they had to do something.” The skill, courage and resourcefulness of the unofficial Guantánamo Bay Bar Association give us genuine cause for pride in lawyers.
They come in many varieties: large-firm associates, sole practitioners, students, human rights advocates, senior partners and academics. They work in the face of extraordinary obstacles—jailers’ efforts to discredit them with their clients; logistical nightmares; intrusive surveillance; limited access to their own notes; sham hearings; unavailability of witnesses and evidence; absence of rules; and lack of precedent. It is scarcely an exaggeration to say that these lawyers saved habeas corpus, not only from the arbitrary will of the executive, but from the narrow-mindedness of Congress. This admirable book tells that essential tale.
Ronald W. Meister, who spent his free time at Guantánamo at O’Kelly’s (The Only Irish Pub on Communist Soil), is a member of Cowan, Liebowitz & Latman.