Stephen Rohde | We Want Our Flag Back

This review was published with permission from the LA Daily Journal.

THE GUANTANAMO LAWYERS: Inside a Prison Outside the Law
Edited by Mark P. Denbeaux and Jonathan Hafetz
New York University Press
New York and London
2009, 420 pages, $32.95

“If you had told me ten years ago that our government would be deliberately holding people in captivity on a naval base outside the U.S. mainland so that we could do whatever we wanted to them without the intervention of U.S. courts, I would have told you that you had been watching on too many miniseries on TV.”

These outraged words from Julia Tarver Mason, a partner at Paul, Weiss, Rifkind, Wharton & Garrison in New York City, are typical of the over 100 personal narratives written by lawyers, translators, and others who have represented and assisted the detainees at the U.S. prison at Guantanamo Bay, Cuba, which have been collected in the new book “THE GUANTANAMO LAWYERS: Inside a Prison, Outside the Law.”

At once shocking, frustrating and inspiring, the book chronicles the courageous and hard-working lawyers who took time from law firms, small and large, human rights organizations and military assignments to step up and provide legal aid to people whom the Bush administration was calling “the worst of the worst” after 9/11.

Edited by Mark P. Denbeaux, a professor of law at Seton Hall Law School, and Jonathan Hafetz, an attorney with the National Security Project of the ACLU, the book sets out “to provide a fuller picture of some important events during the struggle to bring justice to Guantanamo and to give voice to the experiences of the detainees.” The even broader goal is “to create a historical record of Guantanamo’s legal, human, and moral failings and 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 that will take many years to repair even after the doors of the prison are finally shuttered.”

“I want my flag back,” writes P. Sabin Willet, a partner at Bingham McCutchen in Boston, in a speech at Princeton University in February 2006. “My country has been hijacked, and I want it back. If we care about being a civilized people, then it is precisely in times of fear that we have to hold fastest to our rule of law.”

Richard Grigg, who calls himself a “car wreck and sore back” lawyer from Austin, Texas, tells of attending a two-day training session conducted by the Center for Constitutional Rights in August 2005. “I was proud to be part of the ‘Guantanamo Bar’ and of this effort by so many lawyers to stand up for the principles that have made the American legal system the envy of the world.” Grigg adds that meeting his client, Mohammad Akhtiar, at Guantanamo, putting a human face on the legal issue, “was the most moving experience of my thirty-four years as a lawyer.”

One of the lawyers, Stephen E. Abraham, a lieutenant colonel with 22 years of experience as a military intelligence officer, who had served as a lead counterterrorism analyst for the Joint Intelligence Center, Pacific Command, saw it all from the other side. He was assigned to serve with two other officers on a Combatant Status Review Tribunal regarding Abdullah Al-Ghizzawi, a detainee accused of being a member of the Libyan Islamic Fighting Group. Once the panel decided that “there was no basis for concluding that the detainee should be classified as an enemy combatant,” they were ordered to reopen the hearings. On reconsideration, the panel adhered to its original determination.

But Abraham was never assigned to another case and he later learned that another Combatant Status Review Tribunal panel was convened, and without Mr Al-Ghizzawi’s knowledge or participation, he was deemed an enemy combatant. “I concluded,” Abraham writes, “that the Combatant Status Review Tribunal process was little more than an effort to ratify the prior exercise of power to detain individuals in the ‘war on terror’ while paying lip service to the Supreme Court’s mandate that the detainees were entitled to a fair hearing.”

But there is more to the case of Abdullah Al-Ghizzawi. According to his lawyer, H. Candace Gorman, a solo-practitioner in Chicago, while in American custody Al-Ghizzawi was “beaten with chains, bound to chairs in excruciating positions for endless hours, threatened with death and with rape, stripped and subjected to body-cavity searched by nonmedical personnel while men – and women – laughed and took pictures.” There’s more. He “was also posed naked with other prisoners, terrorized with dogs, forced to kneel on stones in the searing heat, left to stand or crouch for extended periods, deprived of sleep, subjected to extreme cold without clothes or covering, denied medical attention, and kept in isolation for year.”

After several similar accounts and numerous deeply moving stories of how the lawyers worked valiantly to defend their clients, the concluding section of the book, entitled “Guantanamo Beyond Cuba,” explains how Guantanamo was never simply a prison “but was part of an effort to create a globalwide system of prisons beyond the law” which shared the core features of “indefinite detention without charge or due process, torture and other abuse, pervasive secrecy, and a desire to avoid meaningful judicial review.”

The book traces the stories of Jose Padilla, Ali al-Marri, and Yaser Handi, who in addition to their ordeals had something else in common – they are American citizens, underscoring the dangerous realization that while a government may begin by denying fundamental legal protections to foreigners, if left unchecked, it will extend its reach even to its own citizens.

“How dare the government take my client from me!” writes Donna Newman, a New York lawyer assigned to represent Padilla until she discovered the day before a court hearing he had been designated an “enemy combatant” by President George W. Bush and secretly moved to a military brig in South Carolina. “How dare the government not inform me of his whereabouts! How dare they interrogate him! I don’t care what made-up name the president of the United States gave him. My client was a citizen, and he had protections.”

“THE GUANTANAMO LAWYERS” is a powerful and important book. These first-hand accounts strip away much of the veneer that has encased tepid and lifeless news stories of what has happened at Guantanamo and elsewhere. This behind-the-scenes look at these brave lawyers and abused detainees is fascinated and revealing. The full and unedited text of these accounts can be found at https://dlib.nyu.edu/guantanamo.

In the end these 100 or so lawyers have done their job. Working pro bono and spending their own money on travel and translators, they have lived up to the highest ideals of the legal profession and their duties as citizens.

The question remains: What are the rest of us doing? Fine lawyers, skilled in constitutional law, today serve as the President of the United States and the Attorney General. Other good and decent lawyers serve in the Justice Department, the military and other government agencies and in bar associations and civic organizations across this country. Other good and decent Americans have been told what the officials in the Bush Administration have done during the last eight years.

Will criminal investigations of everyone from the top down, not just a few “sour apples” or “rouge agents,” be launched? If those investigations reveal probable cause that crimes were committed, will prosecutions be initiated? Will disbarment complaints, which have already been filed in 15 states, be seriously pursued or swept under the rug? Will civil lawsuits be allowed to go to trial on the merits or be truncated by the Obama Justice Department arguing “absolute immunity,” “sensitive national security” and “state secrets”?

We want our flag back. How dare we fail to ensure full accountability under the law?

THE GUANTANAMO LAWYERS: Inside a Prison, Outside the Law. Edited by Mark P. Denbeaux and Jonathan Hafetz, New York University Press, New York and London.