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An Army of Lawyers | The Nation

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An Army of Lawyers

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In July Senator Lindsey Graham, a reservist Air Force Judge Advocate General (JAG), read six declassified memos into the Congressional Record. The memos had been written in February and March 2003 by top JAG corps lawyers from every branch of the military. In stark terms, they criticized the Pentagon's authorization of "torture lite" for undermining decades of military doctrine and discipline, and risking public support for the war. Graham said the JAGs "are not from the ACLU. These are not from people who are soft on terrorism, who want to coddle foreign terrorists.... They were giving a warning shot across the bow...that there are certain corners you cannot afford to cut because you will wind up meeting yourself."

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Lisa Hajjar
Lisa Hajjar, who teaches in the Law and Society Program at the University of California, Santa Barbara, is the author...

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Alberto Gonzales's nomination to succeed John Ashcroft as Attorney General put the Abu Ghraib torture scandal back on the front pages, since he was directly implicated, as White House counsel, in

Graham's intention was to drum up support for some long-overdue measures to end the torture of prisoners in American detention, which led to the McCain amendment that passed the Senate in October by a vote of 90 to 9. But if Graham's jab at the ACLU was intended to valorize the JAGs' patriotic credentials by distancing them from "terrorist coddling" critics, he misapprehended the impressive breadth of the coalition of lawyers opposed to the mistreatment of prisoners. Given their position within the military, there's no doubt that JAGs have spoken with a unique authority and credibility. But their criticisms complement the ACLU and other organizations working to restore the rule of law from the damage done by right-wing radicals in the Bush Administration. In fact, the five JAGs assigned to defend the first Guantánamo detainees slated for prosecution before military commissions were honored by the ACLU in 2005 with Medals of Liberty for zealously contesting injustices and abuses, including the possibility that evidence extracted under torture would be used to prosecute their clients.

When Lieut. Cmdr. Charles Swift was assigned to represent Salim Hamdan, a Yemeni who worked as Osama bin Laden's driver, he learned that his client had been charged and assigned a lawyer because he had agreed, under brutal interrogation, to plead guilty. The Administration was looking for a couple of easy plea bargains to show some "success" from Guantánamo. Swift, however, refused to plea bargain and instead prepared for a trial. He joined forces with Georgetown University law professor Neal Katyal, an expert on national security and war powers, to file a suit against the Defense Secretary challenging the constitutionality of the commissions; in November, the Supreme Court agreed to hear the case. According to Swift, "All men have rights, including the right to a trial--a regular trial! The abuse of prisoners indicates that we don't think detainees are human."

Lieut. Col. Sharon Shaffer, who was assigned to represent Ibrahim al-Qosi, a Sudanese accountant in a company owned by bin Laden who later worked as his cook, characterized his treatment as possibly torture but certainly inhumane treatment; he was held in stress positions for protracted periods, subjected to military dogs and sexually humiliated. Shaffer said, "As a member of the US military, it's scary to see the Abu Ghraib photos and to talk to my client about what he has been through because I worry about what will happen to our people when they are captured. We are supposed to be defenders of the rule of law!" Shaffer has challenged government plans to re-interrogate her client, and the disappearance of videotapes of his past interrogations on which the charges against him are based. She has alleged prosecutorial misconduct, and figures that this was a factor in the resignation of several military prosecutors who refused to participate in a "travesty of justice."

There is extensive cooperation and a logical division of labor among the organizations working on interrogation and detention issues: Human Rights Watch has been monitoring and reporting extensively on Iraq and Afghanistan, where, according to John Sifton, the very worst abuses are occurring on a massive scale, and trying to track the CIA "black sites," where about 100 prisoners have been "disappeared." The ACLU has spearheaded the Freedom of Information Act campaign for the release of documents and joined Human Rights First in litigation on behalf of eight torture victims (four Iraqis and four Afghanis) that names Defense Secretary Rumsfeld; HRF brought on board a dozen former JAGs who are disgusted that low-ranking soldiers have been hung out to dry while those at the top of the chain of command have immunized themselves from accountability.

The strategic alliance of legal professionals has burgeoned since the Supreme Court's 2004 decisions in Rasul v. Bush and al-Odah v. Bush, which ruled that Guantánamo detainees have habeas corpus rights to contest their detention in US courts. These decisions, coming as they did on the heels of the Abu Ghraib photos, galvanized hundreds of lawyers to join the "Gitmo bar." Tom Wilner from the tony firm Shearman and Sterling, who represented Fawzi al-Odah and another eleven Kuwaiti detainees, said, "What is at stake is the rule of law. If you let the government decide when it will submit to judicial review, this violates a fundamental aspect of the separation of powers, which protects our liberty." He added that Guantánamo's purpose "was to avoid law, and this lawless simple-minded lousy government lawyering led to Abu Ghraib.... All my clients were tortured, however you define the term."

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