FDL Book Salon Welcomes Mark Denbeaux and Jonathan Hafetz, The Guantánamo Lawyers
The Guantánamo Lawyers: Inside a Prison Outside the Law
big-firm partners and associates, sole practitioners, federal public defenders, lawyers for public-interest organizations, law professors, lawyers with extensive experience in criminal and civil rights litigation, lawyers with no prior experience in those fields, young lawyers, old lawyers, lawyers who are Democrats, lawyers who are Republicans and lawyers who are independents.
David Cyanomon, The Guantánamo Lawyers, p. 27.
Their stories are found in The Guantánamo Lawyers, a compilation of first-hand accounts from detainee lawyers, edited by Mark P. Denbeaux and Jonathan Hafetz. There is no easy way to summarize such a collection Even after eight years, each day brings court and Executive branch decisions, leaving many of the pages for this book still to be written and shedding a different light on what has been written.
The accounts that have made their way into the collection – from vignettes of personal experiences to examinations of long fought battles – will take you down different paths every time you read them. Early stories of detainees being plied with everything from McDonald’s to fresh figs to baclava, give way to stories of hunger strikers, so weak they have to be carried to their meetings with their lawyers. Children are born to the men in GITMO, never to be seen by them. Parents of detainees die without ever being allowed to speak to their disappeared sons. Tremendous legal victories are won, but detentions continue. Lawyers force themselves into roles of lobbyists and diplomats and even campaign workers, all in efforts to accomplish something of pragmatic value for their clients.
There are insights into victories that almost never happened. The accounts of the lawyers involved in the Boumediene/Al-Odah cases describe how the Supreme Court very nearly never heard their cases; cases that ended up as some of the most important “wins” of the torture/detention litigation. There are discussions of the roadblocks to even being able to launch the initial habeas appeals – roadblocks that preceded even the Military Commissions Act of 2006.
Some of the first cases, such as the Al-Marri and Hamdi habeas involved attempts to assert Guantánamo-like powers within the United States, with greater success than you might want to believe. While the GITMO habeas petitions were proceeding in the D.C. Circuit, the Fourth Circuit was agreeing with the government that persons in the United States could be divested of their habeas by merely being labeled “enemy combatants” without the right to challenge that label.
The courts and habeas lawyers were also forced to address procedural roadblocks. Typically, a lawyer must certify they have met with the client on whose behalf they are filing the habeas petition. With the secret detentions of the nameless disappeared, a lawyer was only required to first accomplish the almost impossible, a client meeting, before being allowed to file the habeas petition.
Still, they persevered through the endless frustrations. More than one lawyer mentions the exchanges between soldiers at GITMO, with a lower ranking soldier saluting and reciting, “Honor Bound” and the senior replying, “To Defend Freedom.” Lawyers hearing this exchange were often arriving at GITMO after going through procedures that went something (more or less) like this.
They have a court order that allows them to meet with a potential client, about whom they know next to nothing and who has typically already been detained for years. During that detention, some interrogators may have pretended to be lawyers for the detainees; other interrogators may have affirmatively tried to dissuade the detainees from meeting with lawyers by telling them that the lawyers would be homosexuals and Jewish. Detainees fear that the attorneys who claim to want to act on their behalf, are spies for the US or even for other governments which had been allowed to send interrogators to GITMO.
The lawyers go through lengthy and slow security clearances and cut through reams of red tape in order to receive authorization for their trip. In addition, they must make arrangements and pay for translators – sometimes without even enough knowledge of their client to know what languages he is likely to speak. Once at GITMO, they are given only a short period of time to secure a detainee’s signature authorizing them to represent him. If a detainee does not meet with the lawyers and agree to representation, the lawyer will not be able to file the habeas petition. Detainees who do agree to meet with lawyers are not told when the lawyers are coming. Detainees are taken, without explanation, to the camp where detainees are subjected to the most extreme isolation and tactics to wait. That transport sets the scene for the meeting with the men and women who claim they want to be the detainee’s lawyers.
Even with representation arranged, lawyers may jump through all the hoops to get a visit with his client at GITMO, only arrive and be told that their client refused to meet with them. The attorneys for Mani Shaman Turki al-Habardi Al-Utaybi (who was cleared for release prior to becoming one of the three “asymmetrical warfare” suicides at GITMO) discuss getting permission, after nine months, to see their client, only to be told when they arrive that he would not meet with them. Three weeks later he was dead.
As your read (and re-read) The Guantánamo Lawyers, you will learn things. It may be learning that Camp Iguana was at one point devoted solely to the detention of children under the age of 15. It may be learning that lawyers were harassed with military claims of underhanded underwear shenanigans, threatening national security. It may be learning that the Department of Justice seriously asserted a lawyer was damaging national security when she told her client of his mother’s death. Mostly, you will learn about the breadth and strength of the voices of those who became The Guantánamo Lawyers.