Book Review: Denbeaux & Hafetz, The Guantánamo Lawyers
The Guantánamo Lawyers by Mark P. Denbeaux & Jonathan Hafetz (eds), New York: NYU Press, 2009.
The Guantánamo Lawyers is a collection of stories from more than one hundred lawyers who have been involved in some way in representing the detainees held by the United States at Guantánamo Bay Naval base and elsewhere since the terrorist attacks of September 11, 2001.
The lawyers’ accounts are arranged to form an approximate chronological narrative of the Guantánamo litigation, although the chronology is interrupted to a degree in some of the chapters that deal with matters such as torture, rendition, and the cases of detainees held outside Guantánamo. Short introductory explanations by the editors appear throughout, and provide some context and continuity to the lawyers’ stories.
The book begins with the establishment of Guantánamo as a detention facility after 9/11, and the decision of certain lawyers to get involved from an early stage in arguing for the habeas corpus rights of Guantánamo detainees, then termed “the worst of the worst”. In 2002, lawyers willing to represent terrorist suspects were few and far between. Among the initial few were Thomas Wilner of Shearman & Sterling and Michael Ratner of the Center for Constitutional rights; Joe Margulies, Clive Stafford Smith and Eric Freedman, all lawyers with expertise in death penalty litigation, also joined the cause from the outset.
These pioneers were later joined by many others, particularly after the Supreme Court’s 2004 decisions concerning the war on terrorism. The general picture that emerges about the motivations of the lawyers is that they did it out of a strong belief in the rule of law and due process, as well as a desire to restore the United States’ adherence to its own ideals. Many of the stories emphasize that the decision to act for the detainees was a form of patriotism as well — a salient point in light of the recent (and widely discredited) attack on the integrity of current Department of Justice lawyers who had previously worked on Guantánamo litigation.
The book unashamedly tells the story of Guantánamo from the perspective of the lawyers and their detained clients — all the lawyers, for example, are predictably critical of Bush Administration measures such as the combatant status review tribunals and the military commissions system. This perspective, together with the personal, first-hand nature of many of the stories, overlaps somewhat with books such as Clive Stafford Smith’s Eight O’clock Ferry to the Windward Side, Joe Margulies’ Guantánamo, and Barbara O’Shlansky’s Democracy Detained. However, The Guantánamo Lawyers tells the stories of a much wider group of people.
The middle portions of the book describe the experience of the lawyers in the extraordinary circumstances in which they found themselves, and in particular the various legal, bureaucratic and practical barriers that they faced in representing their clients. In addition to revealing the unusual working conditions the lawyers faced at Guantánamo, many of the stories highlight the efforts to which they had to go to secure their clients’ trust. This was often achieved with reminders of home or personal information obtained from a family member, or with food, whether traditional (nuts, raisins, baklava), or less traditional (McDonald’s coffees, and steak and egg breakfast sandwiches).
The Guantánamo Lawyers makes clear that acting for the detainees involved much more than simply representing clients in the traditional lawyerly sense. Some lawyers also advocated for their clients in the public arena by writing op-eds, blog posts and the like. Others sought recourse from the Inter-American Commission on Human Rights, or lobbied foreign governments to either press for the return of detainees who were their nationals or to accept other detainees who were not.
One of the book’s most intriguing portions relates the lawyers’ lobbying efforts in Congress as they sought to thwart efforts to stop their clients’ cases from being heard. They first attempted to defeat or at least minimize the impact of a provision in what became the Detainee Treatment Act of 2005 that sought to strip the Guantánamo detainees of the right to seek habeas corpus. Subsequently, the lawyers fought to defeat the further jurisdiction-stripping provision in what became the Military Commissions Act of 2006. They failed by a narrow margin, despite their best efforts and the assistance of the two senators from Illinois at the time, Senators Durbin and Obama. The involvement of then-Senator Obama is of course particularly interesting given his subsequent election to the Presidency.
A lengthy chapter of the book focuses on the torture and mistreatment of detainees, and conveys the lawyers’ harrowing accounts of matters such as their clients’ interrogations, their general treatment, and the hunger strikes that some detainees engaged in. Some of this material has been amply covered elsewhere (for example, in Clive Stafford Smith’s Eight O’clock Ferry to the Windward Side and the FBI Inspector General’s report from May 2008), but The Guantánamo Lawyers forcefully brings home other aspects of the detainees’ plight, especially the effects of prolonged isolation and indefinite detention with no prospect of a meaningful hearing.
As the book’s stories highlight, even for those released, life after Guantánamo has often been a hard road. It has sometimes meant a form of exile, as in the case of a number of Uighur detainees cleared for release by the United States. Some ended up in Albania, a country with which they have no obvious connection. For those detainees lucky enough to be released to their home country, there is still the great personal cost in terms of the disruption caused to their lives and their families’ lives.
The book’s somber tone and subject matter is leavened with a smattering of comic moments. These include: Clive Stafford Smith’s indignant response to allegations from the military that he had passed contraband (to wit, Under Armor briefs) to one of his clients; and how Ali Saleh Kahlah al-Marri, the third “enemy combatant” held inside the United States, was eventually permitted to watch Comedy Central’s The Daily Show and The Colbert Report on television because they technically did not count as news shows.
The stories contained in The Guantánamo Lawyers provide an interesting contrast with much of the legal writing on Guantánamo, which has typically concentrated on the actions of the Bush Administration (and now the Obama Administration), Congress, and especially the Supreme Court. For example, each time the Supreme Court ruled in favor of the detainees’ interests, as it did several times beginning in 2004, much was made of the legal significance of the Court’s actions. But, as the stories in The Guantánamo Lawyers makes plain, victory in the Supreme Court often meant very little on the ground to the detainees.
The collection ends on circumspect note. As made clear in the final vignette, one might question whether the strategy of appealing to American strategic interests in making the argument to close Guantánamo, as opposed to constructing a narrative based on the plight of the detainees, was ultimately the best move in light of the continuing debate over the appropriate legal framework for governing the detention of terrorist suspects. Perhaps the appeal to enlightened national interest was the best strategic means of accelerating the end of Guantánamo; but it necessarily de-emphasized in the public discourse the great cost imposed on the detainees. The many stories told in The Guantánamo Lawyers, which make Guantánamo’s human cost much more tangible, go some way towards redressing this.
John Ip teaches law at the University of Auckland Faculty of Law.