Spring 2009 - Volume 12 Number 2
The Guantánamo Lawyers: Inside a Prison Outside the Law
New York: New York University Press, 2009
The prison in Guantánamo, Cuba that houses “detainees” captured by the United States of America in its “war on terror” presents a conundrum not only for the American government and its people, but also for attentive citizens of all countries.
The often complex dilemma includes, of course, strategic considerations. Independent of the truth of the matter (always a preliminary casualty in time of war), people preoccupied with security issues legitimately wonder if the maintenance of the Guantánamo facility or a suitable substitute in Illinois makes North Americans safer or does it feed terrorist invective and emerge as just another talking point for al-Qaeda recruiters. Moreover, if the Guantánamo prison runs afoul of the Geneva Conventions and other international agreements, does that put captured NATO troops and others at greater risk or, at least, undermine attempts to place Western forces on a moral high-ground compared to the Islamic jihadists whom they are fighting.
Whatever tactical advantage or disadvantage may be in evidence, however, the more fundamental questions do not relate to the particular enemy in the current conflict in the Middle East and elsewhere. Instead, it is the basic commitment of all nations to at least a minimal standard of good conduct, even in the throes of armed conflict between nations that is at stake.
Hideous instances of genocide, summary executions, rape and torture of both formal combatants and civilians reached such a fury in the twentieth century that the sovereign nations of the world were compelled to draw up enforceable “rules of engagement.” Although to people like me, the entire concept of rules about how properly to slaughter large numbers of people wearing different-coloured uniforms always seemed ever-so-slightly ludicrous, the frequency of at least some horrific human acts has arguably been reduced, at least in some “theatres” of war. So, established boundaries for permissible kinds of maiming and killing are better than none at all, and need to be upheld where possible.
The chaotic exigencies of combat and its immediate aftermath are, of course, different from the planned and purposefully administered policies with respect to people who have been incarcerated, transported and kept under close scrutiny. Waterboarding, for example, does not normally take place in the heat of battle. It is an “enhanced interrogation technique” or “torture,” the definition depending largely your political views. As such, it is a well-considered and consciously applied practice for which people may reasonably be held accountablecondemned or reprimanded, applauded or excused.
The circumstances under which captives are apprehended, transported, kept and treated at Guantánamo constitute the context of the contributions to Denbeaux and Hafetz’s collection. It consists of over one hundred individual stories told by professional people who have had occasion to assist the detainees in their attempts to extract some measure of what lawyers and legal thinkers call “natural justice” and which consists of various tests of taking decisions and imposing penalties according to rules of “due process”rules that are noticeably absent or, at best, inconsistently applied in the proceedings at or arising out of Guantánamo. Of course, it should be remembered that President George W. Bush and his successor had directly or indirectly denied that the inmates at Guantánamo have recourse to principles of natural justice or claims to due process at all which is, of course, part of the conundrum.
A larger issue, however, is whether the rule of law is to be followed at all. Thracymachus’s ancient argument that might equals right, and that justice is merely the will of the strongest seems to permeate the intellectual leaders of robust supporters extant imperial America. The document authored by Justice Department official John Yoo in 2002 and used in the efforts of Secretary of State Donald Rumsfeld and Vice-President Dick Cheney to justify torture makes it clear that torture was considered an apt response to terror. Likewise, in 2003, future Attorney-General Alberto Gonzales’ flippant and contemptuous dismissal of then Secretary of State Colin Powell’s concerns infamously set aside the Geneva Conventions as “obsolete” and “quaint” expressed an opinion not altogether abandoned even today.
The contributors to The Guantánamo Lawyers do not share such views. They are alternately shocked and frustrated. They can be angry and inspiring. They are uniformly noble, courageous and dedicated. Many suspended lucrative careers to defend enduring American principles rather than transient American practices, and they did so at some considerable risk to their reputations and careers. Criminal lawyers, after all, are often asked how they can sleep at night, knowing they will present a vigorous defence of rapists and murderers in the morning. Lawyers who hope to do the same for alleged terrorists, the men the Bush administration called “the worst of the worst” and whom had already been convicted in the mind of the government and a substantial portion of the public, could expect their commitment to the presumption of innocence to do them no material good in the future.
What’s more they embarked upon their undertaking with the sensible suspicion that they would be unsuccessful in winning a fair trial (or, indeed, a trial at all) for their clients. They understood that winning acquittals would be all but impossible. In short, they knew that they would lose at some stage of the proceeding. Still, they engaged in the process partly to win as much justice as possible, but also to ensure, as the editors do in this book, that the prisoners would be given a voice and that they would “create a historical record of Guantánamo’s legal, human, and moral failings.” The audience, then, was at least partly to “provide a window into the United States’ catastrophic effort to create a prison beyond the law, disdainful of its own best traditions and world opinion, a failure,” they say, “that will take many years to repair even after the doors of the prison are finally shuttered.”
Of course, although many of the contributors were volunteers from private practice at law firms large and small, some entered into the fray on orders from the military itself. Those who were assigned to serve as token counsel or as arbiters of a prisoner’s fate were expected to provide the appearance of justice. Especially after the US Supreme Court ruled that the detainees should be given a fair hearing, the military process was expected to go through the motions, but to understand that the dance had been choreographed and the outcome was predetermined.
The anthology is replete with personal stories of procedural abuse that are merely the covering for deeply disturbing accounts of psychological and physical abuse. In presenting their narratives, the Guantánamo lawyers make clear that their complaint is not about a single facility. Indeed, the closing chapter of the book points beyond Guantánamo Bay to “secret CIA-run ‘black sites’ abroad, which … illustrate that Guantánamo was not simply a prison but part of a larger, global detention system.” That system, of course, includes the process of “rendition” (i.e., the capture and transmission of people to places where they are to be tortured, but where the United States hopes to rely on “plausible deniability” to escape culpability. Although President Obama promised to close Guantánamo by the end of 2009, certain apparently unforeseen complications has forced the closure to be delayed, possibly until 2011. As well, the new president has not revoked the practice of rendition and other draconian measures initiated in the Bush era.
Denbeaux and Hafetz have, therefore, done more than present a contribution to current history, but a call to action by Americans and others for whom the rule of law remains important. Although many of the detainees have already been handed over to their country of origin, there are some that have not. Canadian “child-soldier” Omar Khadr, for example, remains in Guantánamo while the Conservative government of Stephen Harper refuses to request his transfer to Canadian authorities, arguing flimsily that it will not interfere with the US process until the case has been resolved in the US justice system. The fact that the system lacks justice does not seem to worry the Canadian prime minister. Plainly, the responsibility for ignoring fundamental human rights is not exclusively an American problem.
Howard A. Doughty teaches in the Faculty of Applied Arts and Health Sciences at
• The views expressed by the authors are those of the authors and do not necessarily reflect those of The College Quarterly or of Seneca College.
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