Guantanamo: The Reevaluation Begins Again

With some rough indications that intelligence from Guantanamo and the associated network of extra-legal prisons contributed to the assassination of Osama Bin Laden, our nation is once again faced with tough questions about how it wants to pursue its most dangerous enemies. This comes on the heels of a very different development last week, when a new cache of documents from the Wikileaks trove demonstrated just how irrelevant to the fight some of the Guantanamo prisoners are.

We want to direct you again to our book, The Guantanamo Lawyers, and the associated online database of papers belonging and relating to the lawyers who have defended the inmates pro-bono. Their voices reveal some of the most important primary source material in the debate.

NYTimes: The Guantanamo Lawyers Show America’s Moral Fiber

Richard Bernstein, who writes the “Letters from America” column in the New York Times, has a fantastic review of The Guantanamo Lawyers, ed. By Jonathan Hafetz and Mark Denbeaux, as the topic of his column this week.

“The relations between the roughly 750 men detained over the years in the Guantánamo prison and the lawyers who tried to have their cases heard in American courts — so that civilian judges could determine whether their imprisonment was justified — are among the many elements of a new and remarkable book, “The Guantánamo Lawyers: Inside a Prison, Outside the Law,” edited by Mark P. Denbeaux and Jonathan Hafetz, two members of what they call the Guantánamo Bay Bar Association.”

“Still, the new book is an informative and telling chronicle of what Guantánamo is really like, the physical appearance of the place, how the inmates behaved, the Kafkaesque legalistic gymnastics used by the government to try to keep the detainees locked up without recourse to the civilian courts, the use of confessions extracted — according to the book, by force — from detainees not old enough to have driver’s licenses.”

“Most of all, the book presents a sharp challenge to the view of those who supported the detentions at Guantánamo out of the belief that the men detained there really were, as former Secretary of Defense Donald H. Rumsfeld famously put it, “the worst of the worst”

“What is most remarkable about the narrative is that the story it tells took place at all, that more than one hundred American lawyers — from small-town general practitioners to partners at big urban firms, to former military attorneys — would take up these cases and handle them pro bono as a matter of civic responsibility.”

New York Review of Books Reads The Guantanamo Lawyers

David Cole’s article “What to Do About Guantánamo?“, appearing now in the New York Review of Books, draws much of its insight from our groundbreaking book, The Guantanamo Lawyers, edited by Mark Denbeaux and Jonathan Hafetz.

The Guantánamo Lawyers: Inside a Prison Outside the Law, a collective account by the lawyers who have volunteered to represent the island’s prisoners, provides an invaluable perspective—or more accurately, perspectives, since more than one hundred lawyers contributed to the volume. These men and women, all working for nothing, have gained intimate access to those whom the United States sought to keep hidden behind strictly closed doors. The significance of what they have learned is reflected in how the United States treats them. They must obtain security clearances and be sworn to secrecy in order to see the detainees. The notes they take while meeting with their clients are deemed presumptively “classified,” and are subjected to official review and editing—”redaction”—before the lawyers can read them off the base. And they are barred from informing the detainees of any events occurring in the outside world without prior approval. One lawyer was reprimanded for showing a client a news clipping reporting that President Bush wanted to close Guantánamo, another for telling her client that his mother had died.

The stories these lawyers have been able to tell, adroitly edited by Mark Denbeaux and Jonathan Hafetz, offer a multifaceted portrait of life on the base. Sometimes they read as farce. Clive Stafford Smith, a British lawyer who has represented many detainees, was accused by a Guantá- namo commander of smuggling “Under Armor briefs”—i.e., underpants—and a Speedo swimsuit to two of his clients. Smith responded in a letter that he had not sought to bring underwear to his clients; that he could not have done so even if he wanted to, since every visit is preceded by a thorough search and monitored by camera; and that as he and his cocounsel had not even seen one of the clients for a year, “it is physically impossible for us to have delivered anything to him that recently surfaced on his person.” But Smith was “unwilling to allow the issue of underwear to drop there,” and continued…

Two Guys at Guantanamo

Amherst Magazine profiled one editor and one contributor, both alumnae, from The Guantanamo Lawyers.

What have I taken away from this experience?” Repeating a question, Park Avenue attorney Paul Winke ’90 paused over his breakfast in a nearby restaurant, where he’d been persuaded to stop billing hours long enough to discuss his pro bono work in behalf of detainees at the U.S. base at Guantánamo, Cuba. “I’ve certainly been grateful to be part of a historic effort—maddening though it has been to have to fight our own government for basic legal protections. This hasn’t been about tilting at windmills but about actually getting people out of prison.”

The best-known of Winke’s Guantánamo cases involved six Algerians living in Bosnia-Herzegovina, including the “named” plaintiff, Lakhdar Boumediene. All were detained in 2001 on suspicion of participating in a plot to bomb a U.S. embassy and jailed by Bosnian authorities. When subsequently cleared, the six were, in Winke’s words, “effectively kidnapped” by U.S. agents and sent to Guantánamo, triggering a judicial process that consumed four years and countless unbillable hours.

The Big Lie About Guantanamo Lawyers

Jonathan Hafetz, co-editor of The Guantanamo Lawyers, explains at the Huffington Post:

The recent attacks on lawyers who have worked on behalf of Guantánamo detainees have employed the tactic of the “Big Lie”—that is, a lie so colossal that people will believe it because no one could possibly have the impudence to distort the truth so grossly.

The Big Lie here is that ethical and courageous lawyers who defended the Constitution by taking on unpopular cases of Guantánamo detainees are somehow tainted by the accusations against their clients, and that this taint should prevent them from serving honorably in the Justice Department.

This Big Lie is not only false; it threatens the core principle of our democracy that those accused of misdeeds by our government are entitled to due process and a lawyer to represent them. To appreciate how fundamental this principle is, one need only imagine an America in which lawyers refused to represent clients because they might be associated with the actions or beliefs for which those clients are accused.

Glenn Greenwald Stands Up for the Guantanamo Lawyers

At, Glenn Greenwald triumphantly defends the lawyers who have been working with detainees at Guantanamo Bay from attacks by Bill Kristol and Liz Cheney. A podcast with Jonathan Hafetz, the editor of The Guantanamo Lawyers, is at the bottom of the article.

But that disgusting duo is also smearing countless civilian lawyers whose work since 9/11 has been nothing short of heroic: representing the most demonized and despised group of individuals, and devoting massive amounts of time, energy and resources to doing so, almost always for free and — particularly in the early aftermath of 9/11 — at substantial risk to their reputations and professional relationships. They did so to defend the most basic Constitutional liberties of all of us — as Lt. Col. David Frakt told Serwer: “What we have seen over and over and over is that the vast majority of detainees at Guantanamo are innocent” — and there are no words in the English language sufficient to describe how low and odious are the people responsible for this “Department of Jihad/Al Qaeda 7″ campaign.

As it turns out, one of the lawyers who has successfully represented Guantanamo detainees, Jonathan Hafetz of the ACLU, co-edited a newly released book, The Guantánamo Lawyers: Inside a Prison, Outside the Law, which documents the sacrifices made and the indispensable value of those who have fought against the system of lawlessness and brutality represented by Guantanamo. Hafetz himself represented Mohamed Jawad, a boy no older than 15 at the time he was detained in Afghanistan and shipped to Guantanamo, falsely accused of throwing a grenade at American soldiers who had invaded his country, and put in a cage for 7 years with no trial (where he twice tried to commit suicide), until finally being released last year after a federal judge granted his habeas petition on the ground of insufficient evidence.

Deaths at Gitmo: The Report

The Huffington Post interviews Mark Denbeaux, author of The Guantanamo Lawyers, who oversaw the report that came out this morning regarding three deaths at the infamous prison.

Q: You conclude that the military investigators reached conclusions that are unsupported by evidence and that they established other facts which they then ignore, failing to draw conclusions from them. Can you give some examples of each? Why would they do this?

A: Some examples include the following:

• There is no explanation of how three bodies could have hung in cells for at least two hours while the cells were under constant supervision and by guards continually walking the corridors guarding only 28 detainees.
• The original military press releases did not report that the detainees had been dead for more than two hours when they were discovered, nor that rigor mortis had set in by the time of discovery.
• The initial military press releases did not report that, when the detainees’ bodies arrived at the clinic, it was determined that each had a rag obstructing his throat.
• There is no explanation of why the Alpha Block guards were advised that they were suspected of making false statements or failing to obey direct orders.
• There is no explanation of why the guards were ordered not to provide sworn statements about what happened that night.
• There is no explanation of why no one was disciplined for acts or failures to act that night.

Also, a review of the book at Human Rights Book Review.

Truthdig Goes to Guantanamo

Leading progressive news site Truthdig published an excerpt from The Guantanamo Lawyers: Inside a Prison Outside the Law.

I first saw him on a TV screen. Before my initial meeting with Murat Kurnaz in October 2004, the U.S. military police escorted me—the third civilian lawyer to enter the inner sanctum of Guantánamo’s Camp Echo— through several fifteen-foot-high locked gates and into the guard booth of the world’s most notorious military prison. On my way to the booth, walking across gravel made bright white by the blazing Caribbean sun, my status as a civilian—clean shaven, dressed in a tie and formal shoes—was punctuated by the loud sounds of practice machine-gun fire in the distance.

The military showed me the surveillance they would employ during my otherwise private meeting with my client: he was on a video screen, waiting for me. The image was blurry, like the grainy picture on a store security camera or a late-night news broadcast’s depiction of a wanted menace, and it was unsettling: here was a man with a beard and hair seemingly befitting a prehistoric warrior. Prior to the Supreme Court’s 2004 decision in Rasul v. Bush, which first opened up the camp to law, lawyers, and therefore a minimal amount of scrutiny, Bush administration officials had claimed that all the detainees in Guantánamo were a sort of maniacally diabolical lot—not only were they “trained killers,” but they had nearly superhuman ability to, for example, “gnaw the hydraulic wires of a C-17 transport plane.” I was naturally distrustful of these claims, but this first image obviously did not advance my skepticism. Another military guard carried out what appeared to be his somber duty, instructing me to push away from the table in case the man lunged for my throat.

Justice as Paradox: Civilian Trials for 9/11 Suspects

Jonathan Hafetz, co-editor of The Guantanamo Lawyers: Inside a Prison Outside the Law, has a blog post up at Balkinization. A Short excerpt is below.

Attorney General Eric Holder’s announcement Friday that Khaled Sheikh Mohammed and four other individuals allegedly responsible for the 9/11 attacks would be brought to trial in federal court takes an important—if long overdue—step towards restoring the rule of law. No longer are these men “high value detainees,” a label invented out of whole cloth to sanction their previous disappearance into a secret CIA prison and torture. After resurfacing at Guantánamo in September 2006, they are now, finally, defendants in the U.S. criminal justice system, which has shown repeatedly that it is well-equipped to handle terrorism cases while protecting legitimate national security concerns. This was the result advocated by the ACLU’s John Adams Project, and it is a welcome one.

You can also listen to a radio interview Jonathan did at The Takeaway about civilian trials for terrorists.

Guantánamo and the Rule of Law

Lecture for Harris Institute, Washington University School of Law
“Guantánamo and the Rule of Law”
October 20, 2009
Jonathan Hafetz, co-editor of The Guantanamo Lawyers: Inside a Prison Outside the Law
Cross-Posted from

Forty years ago, America put the first man on the moon, a feat that remains an enduring symbol of promise and possibility. Today, after more than eight years, America cannot seem to find a solution to the fate of some 200 prisoners languishing at Guantánamo Bay that honors the most basic values of its Constitution. How can a nation capable of accomplishing so much, be incapable of so little?

Following his inauguration in January, President Obama announced that Guantánamo must be closed within a year, and that doing so was required both by America’s values and its security. Four months later, in a speech at the National Archives—the repository of the Declaration of Independence and Constitution—Obama reminded the country that “the existence of Guantánamo likely created more terrorists around the world than it ever detained.” Now, however, it increasingly likely that the scheduled closure date will not be met, as high-level administration officials—testing the political waters for the coming let-down—have begun citing a litany of complications—some real, others imagined—for the anticipated delay.

To be sure, closing Guantánamo is not easy, particularly not with Congress intent to raise road blocks in the form of NIMBY-inspired appropriations measures that restrict the transfer of detainees to the United States, even for incarceration in existing maximum security prisons. But, let’s be perfectly clear, it’s not rocket science easier.
As one European official recently said in frustration, “America seems to like its Guantánamo. Let them have it.”

Guantánamo represents all that it is wrong—legally, morally, and strategically—with the “war on terror.” It has become an icon of lawless detention, torture, and secrecy. It has also become a chilling example of how long and hard a government will fight to suppress the truth and perpetuate a lie.

What is Guantánamo really about?
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