An Army of Lawyers
Lawyers with the Center for Constitutional Rights, Rasul's counsel, have taken the lead in coordinating the legal representation of detainees and training newcomers how to file habeas petitions in federal court. According to CCR attorney Gita Gutierrez, "My legal sensibilities were shaped by the civil rights movement. These lawyers remind me of lawyers who participated in Freedom Summer. But what is distinctive is that these lawyers represent a huge spectrum--death penalty lawyers, corporate lawyers from oil and gas companies, lawyers from the most powerful firms in the country. Going to Guantánamo and meeting with prisoners, they are seeing a truth that has been hidden from the public by the executive branch. Human rights lawyers alone couldn't do what these lawyers can do."
Katyal described being "deeply moved" when he ran into two former students in Guantánamo representing different clients. He said, "This is the new civil rights movement. Now it's international law, and especially international humanitarian law. This is a field of law which isn't very well developed and doesn't have a lot of senior people with expertise, so young lawyers and lawyers with little previous practical experience can learn the field and have a real impact."
Learning and teaching the field of international humanitarian law has become a cottage industry since the first torture memos were made public in June 2004. Marty Lederman of Georgetown University, a constitutional law expert who previously worked in the Office of Legal Counsel, has provided analysis in his blog, balkin.blogspot.com, of key documents from the White House and the Justice and Defense departments. His commentary is crucial reading for the lawyers and scholars engaged in the rule-of-law-restoration project. Another important figure is Scott Horton, a lecturer at Columbia and a corporate lawyer affiliated with the New York City Bar Association, who met in 2003 with a group of JAGs seeking advice on the potential liabilities and repercussions of the then-secret Pentagon policies authorizing coercion and abuse. Horton provides invaluable support and advice for politicians and journalists seeking to understand and report on the torture scandal.
The American torture debacle is far-reaching, penetrating every military sector and security agency. At this stage there is no certainty that the rule of law restorers will prevail, not least because the majority in Congress remains averse to establishing a truly independent investigation into interrogation and detention. According to David Cole, a Georgetown University law professor whose clients include Maher Arar, the Canadian citizen "rendered" by the government to Syria for torture, "We need an independent commission because we have done so much damage, not only to prisoners, many of whom are totally innocent, but to our own credibility. We need to show that we can clean our own house." He and others think that the way to generate the necessary pressure is through a grassroots nationwide anti-torture campaign. At present, while opinion polls indicate that a majority is appalled by torture, the complex and legalistic nature of the issues at stake means that it remains a purview of political and intellectual elites. As members of those elites, lawyers are key players in the debate, and their work is essential, but it's not sufficient.
Richard Wilson, who runs the human rights law clinic at The American University and serves as counsel for Omar al-Khadr, who was brought to Guantánamo when he was 16 and was recently slated for prosecution before a military commission, strikes an optimistic note: "This whole experience resonates with the dirty wars in Latin America. But history always vindicates the lawyers who hang on and keep at it.... I hope someday I can look back and say that."