The Guantánamo Lawyers

Inside a Prison Outside the Law

Jonathan Hafetz, Mark P. Denbeaux

• Verlag: NYU Press
• Jahr: 2009
• ISBN:
  9780814720813
• Thema: Jura
• Thema: Rechtsgeschichte

Read free excerpts from the book at http://www.theguantanamolawyers.com and explore the complete archive of narratives at http://dlib.nyu.edu/guantanamo

Following the terrorist attacks of 9/11, the United States imprisoned more than seven hundred and fifty men at its naval base at Guantánamo Bay, Cuba. These men, ranging from teenage boys to men in their eighties from over forty different countries, were detained for years without charges, trial, and a fair hearing. Without any legal status or protection, they were truly outside the law: imprisoned in secret, denied communication with their families, and subjected to extreme isolation, physical and mental abuse, and, in some instances, torture.

These are the detainees’ stories, told by their lawyers because the prisoners themselves were silenced. It took habeas counsel more than two years—and a ruling from the United States Supreme Court—to finally gain the right to visit and talk to their clients at Guantánamo. Even then, lawyers were forced to operate under severe restrictions designed to inhibit communication and envelop the prison in secrecy. In time, however, lawyers were able to meet with their clients and bring the truth about Guantánamo to the world.

The Guantánamo Lawyers contains over one hundred personal narratives from attorneys who have represented detainees held at “GTMO” as well as at other overseas prisons, from Bagram Air Base in Afghanistan to secret CIA jails or “black sites.” Mark Denbeaux and Jonathan Hafetz—themselves lawyers for detainees—collected stories that cover virtually every facet of Guantánamo, and the litigation it sparked. Together, these moving, powerful voices create a historical record of Guantánamo’s legal, human, and moral failings, and provide a window into America's catastrophic effort to create a prison beyond the law.

An online archive, hosted by New York University Libraries, will be available at the time of publication and will contain the complete texts as well as other accounts contributed by Guantánamo lawyers. The documents will be freely available on the Internet for research, teaching, and non-commercial uses, and will be preserved indefinitely as a historical collection.

1

Representing the “Worst of the Worst”

How and Why the Lawyers Started Representing Detainees

Initially, only a small number of attorneys came to the defense of the detainees at Guantánamo. In the immediate aftermath of September 11, most people did not question the actions of the U.S. government, and little was known about the new detention center. Over time, however, it became clear that the United States was denying prisoners basic due process and was engaging in abuse. The legal profession rose to the occasion, and lawyers from all types of backgrounds, practices, and locations joined together to provide representation to the detainees and to demand justice. Here is how some explain their involvement.

Kristine A. Huskey: An Inquiry from Abroad

On the morning of September 11, 2001, I was sitting in a conference room at the Waldorf-Astoria in New York City waiting to examine an expert witness in a $40 million reinsurance arbitration. Instead, we watched the Twin Towers collapse on TV, knowing that as people jumped to their death on the small screen, they were jumping to their death in real life just a few miles down Broadway.

That afternoon I walked out to the quiet streets of midtown Manhattan. Streets were devoid of traffic and sparsely littered with people in panic and disbelief. Everyone was speaking in quiet voices, but the fear was full volume. I felt full of fear too, yet within weeks and with little effort, I moved from fear to a low level of uneasiness to getting on with my life and my busy corporate litigation practice at Shearman & Sterling, a large private firm.

Less than six months after 9/11, Tom Wilner, a partner at Shearman and my mentor, colleague, and good friend, received a call, an inquiry from abroad: Would we take on a matter regarding Kuwaiti citizens who had gone abroad to do humanitarian work and who now might be in the custody of the United States? The project was investigatory in nature: talk to some friends at the Department of Justice (DOJ), maybe file a Freedom of Information Act (FOIA) request that would require the government to provide information to the public, track down the Kuwaiti do-gooders, and just give the information to their families so they could connect. Then maybe we would continue to represent them if there was a need. What that “need” might be was very unclear at the time. Indeed at that time, it wasn’t at all clear that they were at Guantánamo or even in Afghanistan. And it certainly wasn’t readily apparent that the project would be so difficult.

Our first meeting was in a conference room in the Sheraton in Kuwait City, the same hotel that had been devastated by Iraqi soldiers in the Gulf War in the early 1990s. Tom and I were met by the Kuwaiti lawyer, an American lawyer, and Mr. Khalid al Odah, the father of one of the missing Kuwaiti individuals and a former Kuwaiti Air Force pilot who had flown with Americans in the first Gulf War. Khalid had fought alongside American soldiers, and when our tanks rolled in to Kuwait City signaling the country’s liberation, his son, Fawzi, ran to greet them, waving an American flag.

Introductions and niceties took up most of the morning. By the afternoon, we had learned some general information, that the missing Kuwaitis had gone abroad to do humanitarian work (dig wells, teach the Quran, help refugees), had gotten caught up in the conflict, and now were most likely in Guantánamo. Though some articles touched on Guantánamo, there really wasn’t that much information about it and the individuals that were being transferred there. In 2002, the Bush administration wasn’t talking, and the public wasn’t asking. It was becoming clear that the Kuwaitis had gotten lost in that big secret, and it was our job to find them.

We spent the next two days meeting with the families, one by one, essentially doing intake. Who is missing? What is your relationship to him? Why did he travel abroad and where to? When did you last hear from him? Most families had put together a packet of information on their missing person: personal stats such as date of birth, wife, children, job, etc., copies of certificates of charitable works from the past, and other miscellaneous information. Some even had copies of letters from their missing loved one that appeared to have been transmitted through the Red Cross from Guantánamo. The families had found one another somehow through the community and joined together to try to find their sons and brothers. Many of the Kuwaiti men could speak English, and for those who couldn’t, either Khalid or another relative translated.

While in Kuwait, we also met with the people in the Foreign Ministry who were exceptionally helpful, sharing with us a fax from the U.S. embassy in Kuwait that indicated in the briefest of words that six of the missing Kuwaiti citizens were in Guantánamo. The United States offered no explanation of how they got there or why they were there. The Kuwait government had no additional information to tell us.

Additionally, we spent one afternoon visiting a couple of well-known Kuwaiti relief organizations to find out more information about the kind of charity work they did. We learned that Kuwaitis are taught at a very young age to give to charity, to donate both their money and time. It is not unusual for a Kuwaiti citizen to spend half his vacation time in a location overseas doing charitable works. Indeed, Kuwait often led the region in the amount of aid donated to poor countries. The fact that the Kuwaiti individuals had been abroad doing humanitarian work was not unbelievable then, nor was it inconceivable to me that many of them had gone to conflict areas. This issue arose again and again when people asked me with suspicion just exactly what they were doing in the Afghanistan-Pakistan region if they were not in fact joining the Taliban or al Qaeda. Wasn’t that the only reason one would go to a war zone? Many Americans didn’t believe that the Kuwaitis or any other Guantánamo detainee had gone to a conflict area to help others. Generally speaking, Americans do not travel overseas, they do not travel overseas to volunteer, and they certainly do not travel overseas to conflict zones to volunteer. Many Americans simply cannot understand why anybody would travel to a conflict zone unless he was fighting in the conflict.

Michael Ratner: Guantánamo: The Ninth Circle of Hell

On November 14, 2001, I awoke to read in the morning paper that President Bush, under his authority as commander in chief, had issued a military order for the detention and trial of noncitizens in the “war on terrorism.” As president of the Center for Constitutional Rights (CCR), I recall my shock. I remember thinking that there had just been a coup d’etat in the United States, perhaps an exaggerated reaction but a watershed moment for me in a country that I still thought had some semblance of a democracy and some adherence to the principle that presidential authority remain under law.

The order had three key provisions. First, President Bush claimed the authority to capture, kidnap, or otherwise arrest any noncitizen (the claim was later extended to citizens) anywhere in the world, including the United States, who the president believed was involved in international terrorism. The president could then hold that person forever without any charges, proceedings, or trial. Second, the order provided that if, and if is the crucial word here, the person was tried (there never needed to be a trial), such trials were to be held by special ad hoc courts called military commissions. These commissions bore no resemblance to regular trial courts. The entire proceeding could take place in secret, with evidence garnered from torture; those found guilty could be executed; and the executions could be held in secret. Third, no court could hear the case of anyone detained under the order. The president did not need to demonstrate in any court a legal reason for a person’s imprisonment. In other words, the writ of habeas corpus was abolished.

Of course, we had no clients. But we did not need to wait long. On December 13, 2001, it was announced that David Hicks, an Australian, had been captured in Afghanistan by the Northern Alliance and turned over to the United States. A few days later it was revealed that the United States would be using Guantánamo as its offshore prison, where presumably Hicks would be sent and where he could remain forever without any court hearing or access to a lawyer. He was detained solely because the president thought he should be detained. It was in the newspaper that I found the name of Hicks’s lawyer, Steven Kenny, in Australia. More accurately, I found the name of the lawyer for Hicks’s father, as David Hicks could have no contact with his family or lawyers. I called Kenny immediately. We began the discussion of our representation of David Hicks, and after a week or so, it was agreed. CCR and the lawyers we were working with would file a petition for a writ of habeas corpus on David Hicks’s behalf. However, David Hicks would not know about our lawsuit, nor would we be able to consult with him. All communications with Hicks were barred, whether from Kenny, us, or his parents. We would file the habeas case as Hicks’s “next friend”—a provision in U.S. law that allows close relatives or others to act on behalf of those who cannot act themselves. Traditionally, this device had been used only for people who are mentally incompetent or physically incapacitated. Here, it was used because the prisoners were being held incommunicado.

I was quite shocked that the United States was planning to use Guantánamo as its offshore prison—again. I say “again” because I had been one of the attorneys who had worked on an earlier Guantánamo case: when the administrations of George H. W. Bush and Bill Clinton had used the military base as an offshore “refugee camp” for Haitians who were entitled to asylum in the United States but who were prohibited from entering the country because they were HIV-positive. I had learned important lessons from that litigation. First, I learned that Guantánamo was a really bad place to be imprisoned. I compared the refugee camp to Dante’s Ninth Circle of Hell, with its extreme heat, barbed wire, scorpions, hardscrabble ground, arbitrary beatings, hunger strikes, and appalling detention facilities. Second, and of critical importance, the two prior administrations had argued, and somewhat successfully, that Guantánamo was a lawfree zone, that the refugees were not protected by the Constitution, and that no court could protect their rights.

So we knew what to expect: horrendous conditions and arguments that no court could undertake to hear a case about Guantánamo and that even if it did, David Hicks and others were not protected by law. We knew it would be a major uphill battle to get a court even to hear the case. We suspected at the time that Guantánamo was chosen by the Bush administration precisely because of the argument that the Constitution and habeas corpus did not apply there. Subsequently, we learned we were right: a memo was written on December 28, 2001, from Deputy Attorney General Patrick F. Philbin to Deputy Assistant Attorney General John Yoo entitled “Possible Habeas Jurisdiction over Aliens Held in Guantánamo Bay, Cuba.” It concluded “that a district court cannot properly entertain an application for a writ of habeas corpus by an enemy alien detained at Guantánamo Bay Naval Base, Cuba.” But the memo also cautioned that the question has not been definitively decided and that “there is some possibility that a district court would entertain such an application.”

President Bush’s November 13 military order was the latest in a succession of laws, executive orders, and actions since 9/11 that had alarmed me and my colleagues. We saw fundamental constitutional rights under attack, and we saw the president, often with congressional collaboration, grabbing almost unchecked powers. In the two months since 9/11, there had been roundups of hundreds and eventually thousands of Muslim men; the passage of the Patriot Act, with its grant of broad power to spy on Americans; and the passage of the Authorization for Use of Military Force, which arguably gave the government power to use military force anywhere in the world, even in the United States, against those nations, organizations, or persons involved in 9/11.

The Bush administration claimed that the attacks were an act of war, that the United States was fighting a “war on terror,” and that the war would continue for a very long time, possibly for generations. Under this theory, President Bush claimed highly exaggerated wartime powers to override treaties, statutes, Congress, and the courts. The Bush administration could also then look to the laws of war to assert the right to detain those it termed “enemy combatants” until the war was over. Yet, at the same time, because this war was clearly not a conventional war, the administration claimed it could pick and choose among the laws of war most applicable to what it asserted was a “new paradigm.” The result: virtually limitless power for the president and no protections for the detainees.

The November 13 order pushed CCR into action. It was this document that made us begin the historic fight for the rights of those who a few months later would be imprisoned at Guantánamo. It was not automatic that CCR would take on the cases of those jailed under this order, and it was not immediately clear what those cases would be about. At first, most of the focus of CCR, the media, and experts was on the draconian, ad hoc trial provisions and on the death penalty aspects of the president’s order. Few of us paid much attention to its indefinite detention aspects.

We began a discussion about representing the first people detained or tried under the order. It was not the easiest of discussions. Our office in Manhattan is close to the World Trade Center. I had actually witnessed the attacks. For months New York was like a massive funeral. We were all frightened; the anthrax scare came immediately on the heels of the attacks. Did we really want to be representing those who may have been directly involved? Some of us were uncomfortable doing so. Others were worried about funding, as CCR depends on private donations and foundations. Would it be personally dangerous to represent those accused of the attacks?

Of course, it was possible that those accused were innocent, but at the time we took the cases, we had to assume our clients might not be. We decided that the military order was so contrary to law and represented such a threat to fundamental liberties that we needed to challenge it, particularly its denial of habeas corpus. Habeas corpus is the hallmark of a state in which authority is under law. This principle is so important that we were willing to put aside our concerns regarding funding and the angry, vengeful mood in much of the country.

Once we made the commitment to challenge the November 13 order, we went public with our decision as a means of putting the administration on notice that its overreaching would not go unchallenged and to encourage those critics who might be more timid to fight back. Our next step was to try to round up a legal team for what we knew would be major cases. We found some attorneys from the law firm Shearman & Sterling. We had difficulty finding others to work on a possible case for all the reasons I have mentioned: fear of the public reaction, loss of financial support, and the creation of bad precedent. However, by this time, early December 2001, we had attracted some lawyers from outside CCR. I do not know all their motivations, but the fact that their experience was in the areas of death penalty and habeas corpus litigation is a clue as to their interest. The earliest members of the team were Joe Margulies, a civil rights and death penalty lawyer from Minneapolis; Clive Stafford Smith, a death penalty lawyer from New Orleans; Eric Freedman, a professor at Hofstra and an expert in habeas corpus; and me. All of us, more than seven years later, remain deeply involved with these cases.

Richard Grigg: A Human Face

I first heard about the request for attorneys to volunteer to represent Guantánamo detainees at an International Academy of Trial Lawyers meeting in June 2005. Being a “car wreck and sore back” lawyer, I had never been involved in anything remotely related to these cases. However, I strongly disagreed with the Bush administration’s contempt for the rule of law and decided that this was a chance to put my money where my mouth was. I volunteered.

In August 2005, I attended a two-day training session conducted by CCR in Washington, D.C. I was very surprised at my “classmates.” I was expecting a bunch of hippie civil rights lawyers out of the 1960s but found instead that the majority of the volunteer attorneys were from large, national, conservative law firms. It was a group of extremely bright, dedicated attorneys who strongly believed that much more was at stake here than the fate of the detainees. I was proud to be a part of the “Guantánamo Bar” and of this effort by so many lawyers to stand up for the principles that have made the American legal system the envy of the world.

After attending the training session, I was assigned a client—Mohammad Akhtiar, an Afghan. I then filed a petition of habeas corpus. Because I am primarily a plaintiff personal injury lawyer, it was a first for me. It was definitely a Clint Eastwood experience. It made my day to sue President Bush and Donald Rumsfeld.

I can honestly say that meeting my client, Mohammad Akhtiar, at the Guantánamo prison was the most moving experience of my thirty-four years as a lawyer. It put a human face on what had previously been a legal issue. No longer was I representing a detainee on a habeas corpus petition. I was representing a human being, a man about my age who had been uprooted from his family, flown 10,000 miles from his home, and placed in a dog cage. Here was a human being who had never been charged with any crime, a man with very little hope.

Buz Eisenberg: An Oath

I’ve been asked the question more times than I can remember: “Why did you want to represent Guantánamo detainees?” My answer never changes: “Because I took an oath.” Of all the complex reasons and rhetoric and lofty answers I could summon, more than any, it really comes down to that moment you stood there with your right arm raised and made a promise to yourself and your society. Amid an active law practice, it’s easy to forget you took that oath so many years ago. But in every jurisdiction, every attorney is deemed qualified for that license to practice only after subscribing to an oath. And since 1789, that oath has included a promise to support the Constitution of the United States. I had a small practice in rural western Massachusetts, and for twenty-five years I’d tried to fulfill that promise.

Then I found myself watching as my country was holding men without charges and without fair process. I observed all three branches of government seemingly conspire to block the federal courts from so much as hearing a single claim that these detentions were contrary to our constitutional guarantees. And no matter how horrific the reports of cruel, inhumane, and degrading conditions under which they were held, nothing was being done. There I sat, license in my wallet . . . and I’d taken that oath.

Tina Monshipour Foster: My Sabbatical

“I’d like to take a sabbatical from the firm,” I said, trying as hard as I could to make it sound like a nonevent. Across from me sat my boss, leaning back in his office chair with his hands clasped behind his head. “Really?” He raised his eyebrows, surprised.

Through the tinted glass wall behind him I saw it raining, a dreary midtown-Manhattan afternoon.

“It’s not that I’m unhappy here,” I said a little worriedly. “I really do love Clifford Chance, and if I am going to be working at a firm, it would be here. I just want to spend six months doing something else.”

“What’s that?” he asked.

“Working full-time on the Guantánamo Bay detainee cases.”

He unclasped his hands and sat up straight. “Really?” He seemed both shocked and fascinated.

“Yes.” I must have started to look really worried then.

“No, no, I think that’s great,” he said. “I wasn’t expecting you to say that. I’m not exactly sure what I was thinking you were going to say. Maybe that you were taking a break to write a novel or go hiking in South America or tour with a rock band or something. I expected almost anything except that.”

It might seem hard to understand why I would want to upset my life in order to work, without pay, on behalf of people popularly thought of at the time as “the worst of the worst.” For someone who hadn’t been ...