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?

Guantánamo is about people like Abdul Matin, who, along with seven other detainees, was imprisoned for years because he wore a cheap Casio digital watch. The reason: those watches, which are sold and worn by millions worldwide, happened to have been used by some terrorists in the past as timers in bomb attacks.

Guantánamo is about people like Afghan citizen Haji Bismullah, who the United States claimed was an “enemy combatant” and locked up for six years even though he had fought alongside the United States to defeat the Taliban and had served as a local official in the transitional government in Afghanistan. Bismullah had repeatedly urged the United States contact his brother to verify his story, but the U.S. refused.

Guantanamo is about prisoners like Mohammed al Qahtani, the Saudi citizen who became a guinea pig for the use of so-called “enhanced interrogation techniques” at Guantánamo. During a two-month period, Al Qahtani was interrogated for 18-20 hours per day and subjected to painful stress positions, forced nudity, and sleep and sensory deprivation. If al Qahtani fell asleep, interrogators doused him with water. Military dogs were used to frighten and intimidate him. One interrogator tied a leash around al Qahtani’s neck and made him perform a series of dog tricks. At one point during his interrogation, al Qahtani had to be taken to the hospital and revived after his heart rate so low he was in danger of dying.
Guantánamo is about the Uighurs, a group of 20 plus Muslims from northwestern China sold by bounty hunters to the U.S. military in Afghanistan and rendered half-way across the world to Guantánamo. The United States long ago realized that the Uighurs were not terrorists and presented no danger to the United States but continued to treat them as “enemy combatants” to placate the Chinese. Now, the U.S. cannot send the Uighurs home because they will be persecuted or killed. So, it keeps them locked up year after year until it can find a country willing to take them in rather assuming responsibility for its mistake and resettling them here.

Guantánamo is about Mohammed Jawad, the Afghan youth whom I represented in his habeas corpus challenge in federal court. Jawad was arrested in Afghanistan in December 2002 for allegedly throwing a grenade that injured two U.S. servicemembers and their interpreter. Jawad, who was probably 14-15 years old at the time, was beaten and threatened by Afghan officials into falsely confessing then handed over to U.S. officials who continued the abuse before rendering him to Guantánamo. There, the horrors continued: Jawad was deliberately isolated, told he would never leave, and subjected to severe sleep deprivation—known as the frequent flyer program—where he was moved 110 times in 14 days. Matters became so bad that Jawad, who often cried for his mother, attempted suicide by banging his head against a wall.

Guantánamo, at bottom, is about the more than seven hundred fifty men from more than forty countries who have been imprisoned there since January 2002 and about the more than 220 who remain. It is a place where hundreds of human beings have each spent more than 2,000 days (and counting) behind bars, thousands of miles from home and family, without the most essential guarantee of our Constitution and legal tradition: a fair trial.

Trials, stripped to their essence, are about truth and justice. In the medieval age, trial was by ordeal—where a prisoner was required to undergo some painful task, like walking across burning coals or being submerged in water—to test his innocence. Centuries later at Guantánamo, the Bush administration came up with a new way of arriving at the truth: “Combatant Status Review Tribunals,” where prisoners seeking to test their detention were denied the right even to a lawyer, to see the evidence against them and summon witnesses in their favor, and to an impartial judge. The stakes could not have been more significant and the process more inferior—less, even, than you receive in my hometown of Brooklyn to challenge a parking ticket. The Bush administration also came up with “military commissions”—now going their third reiteration(talk about putting lipstick on a pig)—long allowed evidence gained by torture and other abuse and whose rules best be described as “make them up as you go along.” The results are no less arbitrary than medieval trial by ordeal. But they are surely worse in that—now, in the twenty-first century and hundreds of years after the Enlightenment and American Revolution—we not only know better, but have time-tested system of our ordinary criminal courts that we have shunted aside.

Guantánamo is the subject of three landmark Supreme Court decisions Rasul v. Bush, Hamdan v. Rumsfeld, and Boumediene v. Bush, now a part of law school casebooks and curricula. It is the subject of numerous lower court rulings; of almost daily media coverage; and of hundreds of books and academic articles, with many more to come. All, in one way or another try to come to grips with Guantánamo, to understand its meaning, and to explain its significance.

If Guantánamo can be reduced to a few core propositions, these are surely among them. Guantánamo is about the terrible consequences of creating a prison beyond the law—a place where prisoners have no rights and courts have no role. Guantánamo is also about man’s humanity to man, and the ease with which even the most deeply cherished principles can be abandoned to the siren call of “national security” and “public safety.” The end of protecting the country from further attack is not wrong. But the means taken cannot justify everything done in its name. As Justice Kennedy recently reminded us, “Security subsists, too, in fidelity to freedom’s first principles,” chief among them being “freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers.” But Guantánamo is not simply about misdirected pursuit of security. In many instances the ends themselves have not been keeping the nation safe but covering up mistakes, abuses, and illegality to prevent embarrassment and avoid accountability.

That Guantánamo has remained open for so long, that prisoners have been held without charges or trial
for so many years, and that this system has been propped up by so many (both inside and outside the government), is itself deeply troubling. Guantánamo’s creation may have been generated by a cabal of President Bush’s officials. But its continued existence cannot be blamed on any single person or group of persons. That Guantánamo remains, to paraphrase Hannah Arendt, is a reminder of the banality of injustice.

But caution lest we focus too narrowly on Guantánamo as a place. For Guantánamo is, and always has been, more than just a prison. Its reality lies not in brick and mortar, in steel walls and concertina wire, and its cold, forbidding, and antiseptic environment. Guantánamo is a system, one of indefinite, open-ended, and boundless detention outside the basic guarantees of our Constitution. That is why simply shutting the prison at Guantánamo, important as that is, is not enough. Guantánamo, the system, must be eradicated.

Practically speaking, that means a few things. It means that that the remaining prisoners at Guantánamo should be promptly charged and brought to trial in our federal courts or released. It means that the United States cease the claim that it may detain terrorist suspects—captured anywhere in the world—without charge or trial. It also means the United States must cease creating “new Guantánamos” as it is doing at the Bagram Theater Internment Facility in Afghanistan, where much like Guantánamo, it is claiming the ability to detain individuals without habeas corpus review. And it must ensure not only that torture is abolished (as President Obama has taken steps to do) but that there be actions taken for past abuses, both in the form of holding those responsible accountable and ensuring the possibility of compensation for victims rather than closing the courthouse doors by classifying torture as a “state secret.”

Who can we rely on? We can leave it up to the executive branch, which created Guantánamo to maintain expand its powers. And not even an executive branch, like the current one, that professes fidelity to constitutional principles for the desire to push the boundaries of those limits will always be tested, especially in the national security context.

Not Congress, which has disappointed time and again—from twice passing legislation (the DTA and MCA) to strip detainees of any right to meaningful court review by eliminating habeas corpus and to its latest efforts to treat Guantánamo as political football rather than the political disgrace that it is.
That is not to say we should give up on the political branches, which contain men and women committed to finding rights-respecting solutions to national security, including many in the military and intelligence establishments. Rather, it is to say that, even when pushed and prodded, we can hope the political branches will do the right thing (and they sometimes will) but we can never count on it.
Ending Guantánamo—not just prison, but the system—will depend ultimately on you, law students, and future members of the legal profession. It will depend on your ability to defend the Constitution, and to insist that American justice is not simply an ideal but a reality. It will depend on whatever capacity you practice, whether the public or private sector.

As lawyers, litigation will always be one of the most important tools in your tool box. Litigation is important for number of reasons but, above all, because of the possibility of challenging illegal government action in court. Thus far, the judiciary has been the one branch that has stood up in the face of Guantánamo, pushing back against government overreaching, intransigence, and secrecy. But achieving results in court is only possible through vigorous advocacy, particularly true in national security context.

For seven years, the Bush administration fought to prevent any Guantánamo detainee from getting a fair hearing: first, by claiming that the detainees had no right to habeas corpus; then, after the Supreme Court rejected that argument in Rasul, by enlisting Congress’s aid through the passage of court-stripping legislation. Finally, in June 2008, the Supreme Court ruled in Boumediene that detainees had a constitutional right to habeas corpus and ordered that they be provided what they had so far been denied—a fair hearing.

Since then hearings have started to go forward, slowly but surely in federal district court in Washington, D.C. The results have exploded forever the lie, perpetuated by Bush administration officials, that the all the detainees there represent “the worst of the worst.” The habeas process that is now unfolding in Washington speaks volumes about the capacity of our system for injustice, on the one hand, and the importance of courts and dedicated advocacy to combat it, on the other.

In 30 of 38 decisions so far, judges have ruled that the detentions are illegal—that there is no basis to hold the prisoners as “enemy combatants.” The power of this statistic lies not simply in numerical significance—although that number itself is astounding if one contrasts it to the high success rate of U.S. Attorneys in obtaining convictions in criminal prosecutions (especially given the higher burden of proof and more rigorous evidentiary rules in criminal cases). The power lies also in the content of those decisions, and in what the judges are saying about the way in which the U.S. government has imprisoned so many for so long on such scant evidence.

Take Judge Ellen Huvelle in Mohammed Jawad’s case, before ordering Jawad’s release from illegal detention:
• “[S]even years and your case is riddled with holes,” she said to DOJ lawyers after suppressing the government’s evidence as the product of torture and denying yet another government request for delay. “This case is an outrage.”

Or the comments of Judge Coleen Kollar-Kotelly, in ordering the release of Kuwaiti detainee Fouad Mamoud Al Rabiah after years of seven years of illegal imprisonment.
• “The Court is unwilling to credit confessions that the Government cannot even defend as believable.” Drilling down on the facts, Kollar-Kotelly found that Al Rabiah’s “confessions” were the result of harsh interrogation techniques, including warnings that Al Rabiah could never return to Kuwait if he did not confess, and that “no one leaves Guantánamo innocent.”

Or the comments of Judge Richard Leon, who years before had said that Guantánamo detainees did not even have the right to come to court, but who has since been bewildered by just thin the government’s evidence actually is.
• Writing in a case the government had continued to defend the detention of a prisoner, Abdulrahim Abdul Razak Janko, even though Janko had been tortured by al Qaeda and imprisoned by the Taliban for 18 months as a spy, Leon remarked to the government: Your position “defies common sense.”
Yet, at Guantánamo, justice is always an uphill struggle and even when you win you can lose. Many of those 30 who have won their hearings still remain at the prison because they cannot be returned home and the U.S. insists on imprisoning them year after year rather than bringing them to this country until resettlement to a third country can be arranged. Unless the right to habeas corpus includes the right to be released from illegal detention, it becomes a dead letter.

I would like to end though on a positive note, by mentioning one possible silver lining in the black cloud of Guantánamo.

Guantánamo was predicated on the notion that the president could create a category of persons and spaces outside the law: that he could bring individuals to an off-shore island and deny them legal protections simply because those individuals were not American citizens and the territory was not formally part of the United States (even if, like Guantánamo, it was America’s long-time, total and exclusive jurisdiction and control).

Ultimately, the Supreme Court rejected that argument. Critically, it did not simply reject the argument at Guantánamo but said that fundamental constitutional rights such as habeas corpus could extend anywhere the United States imprisoned someone. “The test for determining the scope of [the Constitution’s Suspension Clause],” Justice Kennedy said in the decision’s most important passage, “must not be subject to manipulation by those whose power it is designed to restrain.”

Intended to limit the Constitution, Guantánamo has triggered its possible reconceptualization and expansion. It had breathed new life into the idea of a transnational Constitution, capable of reaching arbitrary detentions, torture, and other illegal government action regardless of where it occurs. Premised on the idea that non-citizens lack even basic constitutional rights, Guantánamo has reinforced the proposition that habeas corpus—and a meaningful opportunity to challenge one’s imprisonment—is a right of all individuals, not just American citizens, thus bringing the U.S. Constitution closer to the spirit and letter of human rights norms. Designed to exploit international law by selectively invoking the law of war, Guantánamo has underscored its importance as well as the hazards of ignoring America’s obligations under the Geneva Conventions.

Whether America will ultimately learn from its mistakes and make something positive out of the legal, moral, and human catastrophe of Guantánamo remains to be seen. But, one thing is for certain: for this is to happen—for America to fight terrorism while remaining true to its Constitution and its values—it will depend on the work of future lawyers to make the ideals of justice and human rights a reality.

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