Three times in the last four years the Supreme Court has rejected the Bush administration’s legal defenses of its program for detention of alleged “enemy combatants.” In 2004, in Rasul v. Bush, a 6–3 majority held that prisoners at Guantánamo could test the legality of their detention by petitioning in federal courts for writs of habeas corpus. In 2006, in Hamdan v. Rumsfeld, a 5–3 majority held that trials of prisoners before military commissions under rules laid down by the Bush administration were unlawful because limits on the rights of defendants violated the Uniform Code of Military Justice and the Geneva Conventions. This June, in Boumediene v. Bush, a 5–4 majority held that a congressional statute barring habeas corpus petitions by Guantánamo detainees violated the Constitution’s guarantee of the right to habeas corpus. 4
Each of these decisions brought an outcry from the political right. Senator John McCain, a survivor of torture as a prisoner in North Vietnam who was once a critic of the Bush detention practices, called Boumediene “one of the worst decisions in the history of the country.” The dissenters on the Court predicted in strident language that the decision would gravely damage the country’s security.
Justice Antonin Scalia, who has a talent for alarmist dissents calculated to arouse political attacks on the Court’s decisions, used it tellingly in Boumediene. He predicted that the decision would have “devastating” consequences and said “at least thirty of those prisoners hitherto released from Guantánamo Bay have returned to the battlefield.” For the figure of thirty Justice Scalia cited a dissenting Senate Republican committee report, which in turn was based on a statement by a Pentagon spokesman in 2007: “Our reports indicate that at least thirty former Guantánamo detainees have taken part in anticoalition militant activities after leaving US detention.”
But Scalia’s claim of thirty returning to the battlefield has been substantially debunked by critics, and by the Pentagon itself, since it was first made. Professor Mark Denbeaux of Seton Hall University pointed out that the Defense Department itself named only fifteen of the supposed recidivists, and eight of those were said to have done nothing more than speak critically of US detention policies. In a document given to Congress two weeks before the Boumediene decision the Department of Defense abandoned the figure of thirty. After the decision a Boston lawyer, Sabin Willett, who represented two of the former detainees named as among the thirty, wrote in The Boston Globe that his two clients had done nothing more than (a) publish an Op-Ed piece in The New York Times and (b) give an interview. The Pentagon deemed these public comments “hostile.”
Senator McCain also waved the bloody shirt of the supposed thirty returned combatants. So did John Yoo, principal draftsman of the Justice Department opinions that the president had absolute power to torture prisoners. Professor Yoo (he now teaches law at the University of California, Berkeley) said the Supreme Court in Boumediene opened the way for aliens “captured fighting against the US” to challenge their detention. That gave a false—no doubt knowingly false—picture of the detainees at Guantánamo. Most were not “captured fighting.” Many, as we have seen, were turned over by jealous Afghan neighbors who wanted American bounties. Others were detained in far-off places such as Zambia. Indeed, the petitioners in Boumediene included six Algerians who lived in Bosnia and who were picked up by Bosnian police—at the request of US officials—and turned over to them.
Chief Justice John Roberts, in his Boumediene dissent, said the Court had struck down
the most generous set of proce dural protections ever afforded aliens detained by this country as enemy combatants. The political branches crafted these procedures amidst an ongoing military conflict, after much careful investigation and thorough debate.
But in this conflict, unlike previous ones, men taken prisoner had no recourse to the Geneva Convention provision requiring a fair hearing to discover whether they were in fact enemy combatants. The Bush administration reluctantly changed the procedures only when forced to by events: the Abu Ghraib scandal and then successive Supreme Court decisions.
An al-Jazeera cameraman, Sami al-Haj, was on his way to Afghanistan in 2001 when he was stopped by a Pakistani official and turned over to the United States. He was held for six years at Guantánamo—and questioned not about al-Qaeda but about al-Jazeera. (He was released in 2008.) His case was one among many where there was never any showing that a detainee was an “enemy combatant.”
Opening the federal courts to habeas corpus applications from the detainees hardly promises them a swift ticket to freedom. But it marks at least a first step toward accountability—a forum where the treatment of a detainee and the asserted reasons for his imprisonment can be examined. As George Will wrote in a column blasting Senator McCain for the ignorance of his comments on habeas corpus, “the Supreme Court’s ruling only begins marking a boundary against government’s otherwise boundless power to detain people indefinitely.”
A striking example of the importance of having courts check official decisions that someone is an “enemy combatant” is the case of Huzaifa Parhat, one of a number of Uighur Muslims from China who are in Guantánamo. Parhat, who the US military claimed was at a Uighur training camp in Afghanistan in 2001, was captured in Pakistan in the fall of 2001. A three-judge panel of the United States Court of Appeals for the District of Columbia Circuit found in June that there was no persuasive evidence to support the government’s labeling of him as an enemy combatant. The panel included the court’s chief judge, David Sentelle, one of the most conservative federal judges in the country. Its opinion ridiculed the government argument, comparing it to the statement of a Lewis Carroll character: “I have said it thrice: What I tell you three times is true.”
Unlike John Yoo and William Haynes, most American lawyers who have been involved in the issues of torture and boundless detention have defended American ideals of justice. That has been strikingly so in the case of lawyers in the military services, the judge advocates general. Major Frakt, whose powerful argument on behalf of Mohammed Jawad I noted above, is one example among many. Large numbers of private lawyers have volunteered their time and struggled against official obstacles to represent prisoners.
The work of lawyers for a detainee is brilliantly explored in Jonathan Mahler’s The Challenge: Hamdan v. Rumsfeld and the Fight over Presidential Power. But it is much more than a book about law and lawyers. It tells the story of a captive who gave his name to a great constitutional decision; and it describes the personal struggles of his lawyers, their courage, and their faults. The result is a work of rare drama.
Salim Hamdan, who gave his name to a leading constitutional decision in the Supreme Court, was a poor Yemeni who was recruited for jihad and became Osama bin Laden’s driver in Afghanistan. He was captured there in late 2001 by Northern Alliance forces and turned over to the United States. In May 2002 he was taken to the prison camp in Guantánamo.
(On August 6, after the first military commission trial at Guantánamo, Hamdan was convicted of providing material support for terrorism, but not of the more serious charge of conspiracy. He was sentenced to five and a half years in prison, far less than the life sentence military prosecutors had long sought. Moreover, the court gave credit for the sixty-one months Hamdan had been in detention since charged, meaning that his sentence will be completed by the end of this year. His fate after that is uncertain, because the Bush administration claims it can keep detainees in Guantánamo—whether convicted or acquitted in a military trial, or not tried at all—until the end of the “war on terror.”)
One of the remarkable facts exposed in this book is that Hamdan was first questioned in Guantánamo by an FBI agent who carefully built up a relationship with him and, in time, got detailed statements from him about al-Qaeda and some of its leaders. The agent had ample evidence for Hamdan to be prosecuted in a federal court; he thought he could persuade Hamdan to testify against more important al-Qaeda figures in return for a reduced sentence. But to his dismay Hamdan was designated for trial before a military commission; the FBI was immediately cut off from him and lost a potentially important witness.
The judge advocate general assigned by military authorities to represent Hamdan in the commission proceedings was a navy lieutenant commander, Charles Swift. After law school he returned to the navy and spent much of his time as a daring defense lawyer in the JAG corps. In the unfolding of the Hamdan case, Swift had one crucial role: dealing with the client. He visited Hamdan in Guantánamo, trying to keep his spirits up during years of frustratingly little progress and punishing treatment in the prison. (Hamdan went on hunger strike and was force-fed for a long period.) Swift also talked to the press, freely and volubly, about the unfairness of the commission process.
Swift’s civilian colleague in the case was a professor at the Georgetown Law Center, Neal Katyal. His role was to mount a constitutional challenge to the terms of the commissions set by President Bush. It was a formidable task, beginning with the need to establish the detainee’s right to sue at all and to invoke the Geneva Conventions—both totally resisted by the administration’s lawyers.
Katyal was compulsive in his devotion to the different phases of the case. Mahler describes him writing twenty-six drafts of a brief and trying out an oral argument in fifteen moot court efforts in five cities. He brought in lawyers from a large firm as co-counsel but was “too arrogant” to listen to their views, Mahler says. He worked relentlessly, finishing one brief at 5:45 the morning it was due. Through it all he shared child-care responsibilities with his wife, and he made a trip to India to help bury his father. His relationship with Charlie Swift frayed almost to the breaking point.
As we read this book, we know what the Supreme Court is going to decide in the end; but I found myself so caught up in the drama of the lawyers’ struggle that I waited, with their anxiety, to see whether the Court would hear the case, and then what it would do. At the denouement Katyal walked out of the Supreme Court and told reporters:
What happened today, a man from Yemen with a fourth-grade education, accused of conspiring with one of the most horrendous individuals on the planet, being able to sue the most powerful man in the world, the president of the United States, and have his case heard—that is something that is fundamentally great about America.
To which Charlie Swift added: “Our values are what won here today, our values for the rule of law….”
Swift paid a high price in the navy for his successful work on behalf of Hamdan. He was passed over for promotion and resigned his commission. He became a visiting professor at Emory Law School—and, as a civilian lawyer, represented Hamdan in the military commission proceedings against him that finally got underway in 2008. But he was hardly alone in being punished for defending American values. Major General Anthony Taguba, who was appointed to investigate the torture at Abu Ghraib and found that there had been “wanton criminal abuse” of detainees, was forced into retirement.
General Taguba wrote the preface to Broken Laws, Broken Lives: Medical Evidence of Torture by US Personnel and Its Impact, a report issued in June by Physicians for Human Rights on the lingering effects on detainees of what was done to them, based on medical examinations of some of them. General Taguba said that “the Commander-in-Chief and those under him authorized a systematic regime of torture.” He added:
After years of disclosures by government investigations, media accounts, and reports from human rights organizations, there is no longer any doubt as to whether the current administration has committed war crimes. The only question that remains to be answered is whether those who ordered the use of torture will be held to account.
To date the “enablers of torture,” as Major Frakt called them, are doing fine. President Bush, Vice President Cheney, and David Addington remain in office. Jay Bybee, who issued the legal opinion that said the president had unlimited power to order the use of torture, was nominated and confirmed as a judge of the United States Court of Appeals for the Ninth Circuit before his torture role became known. John Yoo is in his professorship at the Berkeley law school; the dean, Christopher Edley, said in April that tenure protected him there and that his clients—President Bush et al.—were “the deciders.” Yoo is also regarded by television programs and by the opinion pages of newspapers, including The Wall Street Journal and The New York Times, as a legitimate voice on issues of presidential power, and he appears frequently.
Yoo and Addington appeared in June before a House Judiciary subcommittee; they ducked questions about their responsibility. When Addington was asked whether it would be legal to torture a detainee’s child, he replied: “I’m not here to render legal advice to your committee.” William Haynes, the former Defense Department general counsel, appeared before a Senate committee and repeatedly said, in answer to questions, that he could not remember. A Washington Post column on his testimony was headlined “Abu Ghraib? Doesn’t Ring a Bell.”
Torture by officials is prohibited by US criminal law as well as by the international Convention Against Torture and the Geneva Conventions. According to the new book by Jane Mayer, the International Committee of the Red Cross concluded in a report last year that interrogation methods used by the CIA on a high-level prisoner “categorically” constituted torture. Her book, The Dark Side: The Inside Story of How The War on Terror Turned into a War on American Ideals, 5 says the ICRC report was sent to the CIA, the detaining authority, which “shared it with the President and the Secretary of State.” Mayer writes that the report “warned that the abuse constituted war crimes, placing the highest officials in the US government in jeopardy of being prosecuted.”
There will be no American prosecution of the enablers as long as George W. Bush is president. But it may not be safe for the prominent among them to travel privately abroad. Someone may try to assert the universal jurisdiction over gross violators of human rights that was upheld by the House of Lords when General Pinochet was served in Britain with a Spanish warrant.
Conservative commentators have already warned against any future US prosecution, arguing that—reprehensible as the treatment of some detainees was—those responsible did not have criminal intent. The argument is unpersuasive on the facts, because Secretary Rumsfeld and others were warned by senior Pentagon civilian and military lawyers, including the navy general counsel, Alberto Mora, that their policies would violate the law. And it is unpersuasive on the law, because a mistaken view of the law is not a defense under the principles established at the Nuremberg trials. The Nuremberg precedents also dispose of Dean Edley’s argument that lawyers cannot be prosecuted for advising officials that they can commit what are in fact crimes. German lawyers were convicted at Nuremberg as enablers, in their legal advice, of Nazi crimes. 6 President Bush said, “We had legal opinions that enabled us to do it.”
Prosecutions are not a likely course for a new US administration. But there are steps that should be taken to confront the horrors our government has perpetrated. At a minimum we must lift the cloak of secrecy from what was done and from some still-classified legal opinions that purported to legitimize these acts.
Somehow this country has to reassert its historic repugnance at the use of torture. And that may not be easy. A recent poll showed that Americans’ support for the torture of alleged terror- ists has risen from 36 percent of those asked in 2006 to 44 percent this year. We were shocked by the Abu Ghraib photographs. Since then a good many of us have become desensitized to the use of torture.
President Bush and his top officials have evidently succeeded in persuading many with their contention that “enhanced interrogation techniques,” as they call torture, produce valuable information. The evidence asserted for this contention is weak; Senator Jay Rockefeller, drawing on his experience as chairman of the Senate Intelligence Committee, has said:
I have heard nothing to suggest that information obtained from enhanced interrogation techniques has prevented an immi nent terrorist attack. And I have heard nothing that makes me think the information obtained from these techniques could not have been obtained through traditional interrogation methods used by military and law enforcement interrogators.
But in any event the cost of the policy to America’s reputation—and its national security—has been enormous. It has aroused much of the Muslim world to hatred of the United States. And it has sapped the belief of many Americans in the righteousness of their country.
In the end the cure, if there is to be one, will have to come from leaders who reassert the primary place of law in the American character: from a president who does not seek unrestrained power, from an attorney general and other officials who respect the law. It is not too late to return to a government of laws, not men.
—August 26, 2008
Doubleday, 2008. ↩
In the second round of Nuremberg trials after World War II, the United States prosecuted German government lawyers who had, among other things, written memos and orders depriving Soviet prisoners of Geneva Convention rights and legitimizing the disappearance of political suspects. Two well-known lawyers who were convicted were Rudolph Lehmann, chief of the Legal Department of the High Command of the German Armed Forces, and Franz Schlegelberger, acting Reich minister of justice. See the essay by Scott Horton, "Through a Mirror, Darkly: Applying the Geneva Conventions to 'A New Kind of Warfare,'" The Torture Debate in America, edited by Karen J. Greenberg (Cambridge University Press, 2006), pp. 136–150.↩
‘Official American Sadism’ November 6, 2008
Doubleday, 2008. ↩
In the second round of Nuremberg trials after World War II, the United States prosecuted German government lawyers who had, among other things, written memos and orders depriving Soviet prisoners of Geneva Convention rights and legitimizing the disappearance of political suspects. Two well-known lawyers who were convicted were Rudolph Lehmann, chief of the Legal Department of the High Command of the German Armed Forces, and Franz Schlegelberger, acting Reich minister of justice. See the essay by Scott Horton, “Through a Mirror, Darkly: Applying the Geneva Conventions to ‘A New Kind of Warfare,’” The Torture Debate in America, edited by Karen J. Greenberg (Cambridge University Press, 2006), pp. 136–150.↩