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.”
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.”
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.”