By John Ryan | October 28, 2022 | News & Features
A theme of our ongoing coverage of the legal proceedings on Guantanamo Bay is the immense difficulty of prosecuting individuals previously tortured and subjected to incommunicado detention. Indeed, the government may reach plea deals with the five defendants in the Sept. 11 case instead of finishing the critical suppression hearings – which still have several months of pretrial testimony remaining – that would determine whether the CIA’s earlier abuse of the defendants taints the prosecution’s most important evidence.
The highly secure courtroom on Guantanamo Bay, however, is just the latest front in the many legal efforts against torture, as Lisa Hajjar explains in her new book, “The War in Court: Inside the Long Fight Against Torture.” A professor and chair of the Sociology Department at the University of California, Santa Barbara, Hajjar details in gripping detail how a large and diverse mix of lawyers have waged this multifaceted war ever since the Bush administration decided to use secret detentions and aggressive interrogation techniques in the wake of the Sept. 11, 2001, terrorist attacks. “The War in Court” is the product of decades of research, including Hajjar’s 14 trips to Guantanamo Bay to watch the military commission proceedings. Hajjar has made these trips with the ever-diminishing group of journalists who still attend proceedings, penning articles for outlets including The Nation and Middle East Report in addition to her acclaimed academic writing in books and journals.
Lawdragon: Congratulations on your excellent new book. Can you tell our readers what led you to become interested in torture and make it a focus of your professional life?
Lisa Hajjar: My interest in torture grew out of my interest in the relationship between law and political conflict. As a sociologist of law, I am especially fascinated by fights on the legal terrain over what is legal and what isn’t, who wins and who loses, and why. This began when I was a graduate student doing my PhD dissertation on the Israeli military court system in the West Bank and Gaza. In 1987, several years before I started fieldwork, Israel became the first government in the world to publicly authorize torture, albeit euphemized as “moderate physical pressure,” on the claim that it was “necessary” to combat “hostile terrorist activity,” which was officially interpreted to encompass not only Palestinian violence but all forms of nationalist activism and political resistance to the occupation.
Through my research on the military courts, I came to understand that Israel’s larger control strategies over Palestinians relied heavily on coercive interrogations in order to get confessions that could be used to prosecute, convict and imprison them. Israel, at that time, had the largest per capita prison population in the world. Another part of my research focused on the battles that Israeli human rights lawyers were waging throughout the 1990s in the High Court of Justice to end the state’s authorization of violent interrogation techniques. They won a partial victory in 1999 when the court issued a ruling precluding the “routine” use of coercion. My study of how torture and the law play out in the Israeli-Palestinian conflict evolved into my first book, “Courting Conflict.”
LD: Early in “The War in Court,” you also mention the Pinochet example.
LH: Yes, another set of events that nourished my interest in torture was the arrest of former Chilean dictator Augusto Pinochet while he was in London in 1998. A Spanish judge, Baltasar Garzón, issued an international arrest warrant and a request for the British government to extradite Pinochet to Spain to stand trial for murder and torture perpetrated in Chile during the dictatorship. This request for extradition was based on an international criminal law doctrine that hadn’t been used since the heyday of slave trading and piracy: universal jurisdiction. Garzón resurrected the doctrine by contending that Pinochet could be prosecuted in a foreign country (Spain) because his crimes made him “an enemy of all mankind,” and he hadn’t been held accountable at home.
When the British Law Lords evaluated the charges in the Spanish warrant, they decided that Pinochet wasn’t extraditable for murder because killing people is what happens in wars. But they decided that he was prosecutable for torture because no one has a “right” to torture and sovereign immunity cannot shield even a former head of state from accountability for this gross crime. Although the British government decided, for political reasons, not to extradite Pinochet to Spain, the “Pinochet precedent” had a transformative effect on international criminal law. And for the record, universal jurisdiction is my favorite jurisdiction.
Having thought about torture nonstop for a decade, by September 11, 2001, I was primed to hear dog whistles, like Vice President Dick Cheney’s September 16 interview on “Meet the Press” in which he said that it would be necessary “to use any means at our disposal … to achieve our objectives.” He was hinting that the only way to get “actionable intelligence” from nefarious and shadowy enemies would be to capture people and interrogate them using violent means.
LD: As you explain in your book, lawyers in the Bush administration played a key role in putting a legal veneer on torture with memos that signed off on enhanced techniques. How did this frame the challenge faced by lawyers opposing torture early in this “war”? What were some of the frontlines?
LH: I would frame the causality slightly differently: It was because government lawyers provided legal cover for coercive interrogation techniques that the fight against torture had to be waged by lawyers who could bring cases and devise litigation strategies that aimed to get federal courts to rule against Bush administration policies that were based on torture-permissive legal reasoning.
In the immediate wake of the 9/11 terror attacks, Cheney, his legal counsel David Addington and a small group of lawyers from the White House, Justice Department, and Pentagon – who referred to themselves as “the war council” – began concocting plans to hold people incommunicado in locales where they would have no access to lawyers or courts. Guantanamo was selected as the military facility for long-term interrogation and detention for this reason. The CIA was authorized to run its own clandestine detention and interrogation operation for so-called “high value” terror suspects who were held in black sites in various foreign countries. Secrecy and inaccessibility were essential to shield the policy choices to authorize the abuse of detainees from the public and to enable officials to propagandize about all the fabulous intelligence the interrogations were putatively producing.
But because the United States prides itself on being a nation of laws, in order to “legalize” forced disappearance, coercive interrogation tactics and long-term detention without trial or even status review hearings, the war council reinterpreted federal laws and U.S. treaty obligations, most notably the legally baseless contention that the Geneva Conventions were too “quaint” to apply to this new kind of war. This scheme, which its intellectual authors called “the new paradigm,” was premised on the idea that anyone taken into U.S. custody abroad was a terrorist and, thus, was rightless. The scaffolding of this scheme was the “unitary executive thesis,” an interpretation of Article II of the Constitution popular in right-wing legal circles that the president’s powers cannot be fettered by laws or courts or Congress when he is acting in the nation’s security interests. It was not the practice of torture per se but rather its legalization that created a situation in which the only people who could fight the government over its prisoner policies were lawyers.
It was because government lawyers provided legal cover for coercive interrogation techniques that the fight against torture had to be waged by lawyers who could bring cases and devise litigation strategies that aimed to get federal courts to rule against Bush administration policies that were based on torture-permissive legal reasoning.
LD: What compelled you to write this book and specifically to focus on the work of lawyers?
LH: For the first couple years of the “war on terror,” like the rest of the public, I had little idea what was actually happening in U.S. detention facilities except things reported by investigative journalists and human rights organizations. Then in 2004, a trifecta of events blew the lid off the secret torture program. The first was the publication of the Abu Ghraib photos on April 28. That scandal roused Congress to start asking for information and grilling officials about the administration’s prisoner policies, which, in May and June, led to the release and leaking of some legal memos and policy documents pertaining to interrogations. These were instantly and aptly branded "torture memos."
The most shocking memo to become public at that time was authored by war-council member John Yoo, who served as deputy assistant attorney general in the Office of Legal Counsel between 2001 and 2003. Written for the CIA and dated August 1, 2002, that memo laid bare justifications for the use of gruesome and violent tactics while emboldening the administration to believe that this would not violate any applicable laws. Even more than the photos of naked prisoners being tortured at Abu Ghraib, the intellectually pathetic and ethically abhorrent contents of the August 1 memo scandalized and enraged many lawyers because it threw into question the blackest of black letter law by sanctioning practices that are universally prohibited and constitute a crime under U.S. law.
Lawyers found an outlet to channel their rage when, on June 30, the Supreme Court issued a landmark ruling in Rasul v Bush. That case, first filed by the Center for Constitutional Rights in February 2002 to challenge the president’s authority to secretly detain people at Guantanamo, was won by the challengers. The court decided that people detained at Guantanamo have the right to have their status reviewed by a federal court. Lawyers from around the country started contacting CCR and volunteering to be habeas counsel for Guantanamo detainees. This was the origin of the “Gitmo Bar.”
This trifecta of events was the trigger for the research that led to this book. Between 2004 and 2020, I interviewed over two hundred lawyers – military and civilian, Democrats and Republicans, corporate and human rights and small firm private practice lawyers, law professors and their students – who in one way or another played roles in challenging the government’s prisoner policies.
I tell the origin stories and complex consequences of the major cases that made it to the Supreme Court: Rasul, Hamdan v Rumsfeld, and Boumediene v Bush. I track the collaborative efforts among lawyers and human rights practitioners to pursue accountability for U.S. officials who perpetrated and abetted the gross crime of torture as well as justice for victims, both in U.S. and foreign courts, most of which were unsuccessful. And I take readers into the Guantanamo military commissions to understand that travesty of justice spanning four U.S. administrations.
LD: You and I both started attending the military commissions during the Obama administration. From your research and writing, what were some lessons of the cases initiated by the Bush administration under the 2006 Military Commissions Act?
LH: During the Bush years, I was doing research on the Guantanamo military commissions from afar because I couldn’t go there as a scholar or even as an interested citizen. In 2010, I was having lunch with a friend who was an expert witness for the defense in the commission case against Omar Khadr, a Canadian citizen who was 15-years old when he was captured and 16 when he arrived at Guantanamo. I complained that I couldn’t be there to see the trial for myself. She suggested that I could go as a journalist, and that’s how I went. Between 2010 and 2020, I made 14 trips to Guantanamo.
In the book, I trace the handful of cases that were brought by the Bush administration before the Hamdan decision cancelled the commissions – none of which produced a conviction. After Congress passed the Military Commissions Act in October 2006, the Bush administration resumed charging people, including Salim Hamdan. There were only three convictions while Bush was president and one – David Hicks – was the result of a politically negotiated plea bargain. Despite that Barack Obama had been a critic of the commissions before he moved to the White House, his administration decided to keep using them, referring to them as the “reformed” commissions because Congress made a few modest modifications to the Military Commissions Act in 2009. Ironically, more people were prosecuted in the commissions during Obama’s two terms than during Bush’s.
One clear example of how the commissions became a multi-administration travesty is that only one of the convictions secured through trial in the military commissions survived appeals in federal court because the charges themselves were not legally valid.
Almost all of the lawyers I interviewed were novices to the problem of torture when they started because never before the “war on terror” had torture been official U.S. policy. What they learned on the job representing clients who were so dehumanized in U.S. custody left indelible marks on them.
LD: As we’ve discussed, I am writing a book on the 9/11 military commission, focusing heavily on the complications brought by the past treatment of the defendants at CIA black sites – a subject taking up most of your last chapter. What lessons do you draw from watching such a complex case unfold in person, with torture as a central issue?
LH: We met for the first time in 2015 when we were both there to cover the 9/11 case. We overlapped as often as I could get away from my day job as a professor to make the trip. Good times!
I devote the final chapter of my book to the 9/11 case because, more than any of the cases in various venues that constitute the war in court, this one best illustrates the high costs and unforeseen consequences of torture. The case began in its first iteration in 2007. It fell apart before Bush left office. The Obama administration, after a failed attempt to move the 9/11 case to a federal court in Lower Manhattan, restarted it in the military commissions in 2011. The defendants were arraigned in 2012. I title this chapter “The Last Front” because the case – and the fight against torture at its heart – continues. The main (but not only) reason the case hasn’t moved beyond the pretrial phase for over a decade is because the five defendants were brutally tortured by the CIA, and the government, one administration after another, continues to insist that much of what happened to them remains a state secret.
Being present for many weeks of hearings over years enabled me to understand that the case is caught in a three-way conflict of interests. On one side are the defense teams, who spent years fighting for information about their clients’ treatment and conditions of confinement in black sites. They insist that information must be turned over because pretrial detention is relevant in any criminal trial, and certainly in one with death on the table. The second side is the prosecution, which carries water for the CIA by denying the defense the information they seek and providing instead substitutions and summaries. The third side is the CIA itself which has no institutional interest in due process but only in maintaining its secrets. The problem could be resolved if the government made a choice: either keep the CIA’s secrets and take death off the table or give the defense the information they legitimately seek.
The government is showing signs of partial surrender, though. In March 2022, plea bargain negotiations started. But even that prospect is running afoul of the priority to keep the secrets that the defendants embody. It seems that the prosecutors are resisting defense demands that their clients be given access to full and independent medical and psychological treatment. This case provides the best evidence that torture and justice can never be reconciled. It also proves that there is no “after torture.”
LD: Among the interesting components of “The War in Court” is the mix of lawyers who involved themselves in the fight against torture. What united them despite their differences?
LH: The common denominator among legal professionals with vastly different career profiles and ideological predilections was a powerful sense that lawyers are professionally obligated to take action to defend the rule of law, and many also described their motivations in ethical terms. For many, especially some military lawyers and political conservatives, fighting their own government took them way out of their comfort zone. Almost all of the lawyers I interviewed were novices to the problem of torture when they started because never before the “war on terror” had torture been official U.S. policy. What they learned on the job representing clients who were so dehumanized in U.S. custody left indelible marks on them. The other common denominator is the fact that hundreds of lawyers, individually and collectively, waged what I describe as a war in court.
LD: When thinking about all your research, are there a few key acts of courage along the way by lawyers that stand out to you as particularly memorable or important for the course of history?
LH: There are many acts of courage that I narrate in the book. But if I have to pick a few, pride of place goes to the late Michael Ratner who started the war in court by bringing Rasul. It was courageous to take up a fight for unknown people who were held in secret detention at a time when the nation was reeling from 9/11 and public opinion was broadly supportive of whatever the Bush administration wanted to do. The few lawyers who were willing to join Ratner in this endeavor included Clive Stafford Smith and Joseph Margulies, both death penalty lawyers. I conclude the book by focusing on Margulies, who is still at it; among the Guantanamo detainees he has represented, one of his clients is Abu Zubaydah, who served as the guinea pig when the CIA was developing its torture program. Abu Zubaydah is a “forever prisoner” because he has no prospect for trial or release. Margulies’s fight for his client goes on.
I would also give a shout-out to Gitanjali Gutierrez who was the first habeas counsel to get to Guantanamo in August 2004. She had to fight the Pentagon which, despite Rasul, wanted to prevent her from accessing her clients, and she was subjected to many ordeals because people in control on the ground regarded her as an interloper. She was the first lawyer to represent Mohammad al-Qahtani, who was “Detainee Zero” when Donald Rumsfeld authorized military interrogators at Guantanamo to use the same kinds of torture techniques the CIA was using.
Many military lawyers who served as defense counsel for detainees in the commissions manifested heroism by fighting their superiors and putting everything on the professional line to try to obtain whatever modicum of justice was possible for their clients. Of the many who are featured in the book, I would call particular attention to Lt. Cmdr. Charles Swift who brought the Hamdan v Rumsfeld case, Lt. Col. Jon Jackson who defended Omar Khadr in the first commission case brought by the Obama administration, and Maj. David Frakt whose client, Mohammad Jawad, was 14 or 15 years old when he was shipped to Guantanamo. Frakt, unlike most other lawyers defending clients in the commissions, demolished the government’s case and secured Jawad’s repatriation to Afghanistan.
And finally, I think that all the defense lawyers involved in the 9/11 case deserve commendation because they have waged the fight against torture longer and harder and more directly than anyone else. But more importantly, their litigation strategies have served a broader purpose of trying to bring hidden truths to light, and truth is essential if we ever hope someday to see a national reckoning for this dark chapter which isn’t over yet.
LD: It’s been a while since we’ve seen you down in Guantanamo. When do you expect to return?
LH: I want to keep going to Guantanamo as often as I can, but it's hard to get away when I'm teaching. I hope to get back in the spring. Going to Guantanamo is so important because journalists are the eyes of the world.
About the author: John Ryan (email@example.com) is a co-founder and the Editor-in-Chief of Lawdragon Inc., where he oversees all web and magazine content and provides regular coverage of the military commissions at Guantanamo Bay. When he’s not at GTMO, John is based in Brooklyn. He has covered complex legal issues for 20 years and has won multiple awards for his journalism, including a New York Press Club Award in Journalism for his coverage of the Sept. 11 case.