Boats Against the Tide – From Attica to Guantanamo: The Struggle for Liberty and Justice in America – Northeastern University School of Law – Speech Notes – PDF

2008 Northeastern University School of Law Speech Notes

Appreciate honor of being here at Northeastern; years of NE students have worked at CCR; and I as a student worked with a former Dean and current prof Michael Meltsner in the heyday of civil rights movement—67-68- Exciting time-extending rights—today exciting also-diff way–­

(prof—margaret b to michael avery-and others)

Ignore the title-I mostly will-they call you months in advance—! said something that sounds clever—“boats against the tide: from Attica to Guantanamo; the struggle for liberty and justice in America”

(then thought about what I would say-too all encompassing-a book)

some parts I will address—and are relevant for the work of CCR–­

CCR and I have generally been against the tide—or more accurately the current—that is the correct f scott fitzgerald quote—and that had made all the difference—never more so then in the current post 9/11 period—

The reference to Attica—the 1971 prison rebellion—my first case at CCR—I walked in and 4 days later was up at the prison interviewing tortured inmates—so torture in America or by America is not new—but the torture at gitmo, Bagram, and secret sites today is different—it is torture that is barely denied-and is in fact embraced by many—as a message to the rest of the world-don’t go against us—we will torture you—

So my talk today is about what I call: Our Operation Condor­

–some of you may recall the kidnapping, detention, torture and disappearance program in the southern cone of south America -run by Pinochet and others in the 70’s—it was called Operation Condor–­

—That is what the bush administration is engaged in today—

A worldwide system of kidnapping, detention, torture and disappearances–­ Our Operation Condor on a massive scale—

Hans Litten Story

I want to begin with a story about a German lawyer named Hans Litten-­-A young trade union and civil rights lawyer who practiced up to the Nazi period

I had never heard of him until I went to Germany a few years ago to begin litigation against Rumsfeld and others for their involvement in the US torture program-

Having failed to have any accountability in US for this program We sought to begin an investigation and prosecution in Germany—

Chosen: hist laws and presence-kid

While there-reception at Berlin Bar—named HL Bar—after the wall–­ Story—Litten at 29-year 1931 (2 years before)-rep trade unionist­ cross examined Hitler for 2 hours—question a lawful party or party of violence—

Storm troopers were convicted and got long jail sentences

Hitler never forgot trial and embarrassing cross examination or Litten Night of Reichstag fire Feb 28, 1933—had SS arrest Litten

–if that is the right word—

For there were no charges and no crime-he was put into what Nazis called protective custody-an enemy of the state—

Sent from camp to camp–spandau dachau-

Beating mock executions-enhanced interrogation techniques—familiar term–

and finally a confession—trade unionists murderers—took it back—

Mother upper class—went to Nazi—–told no legal steps-as no ct could hear the case and no lawyer needed—suicide 5 years later—-

Wrote book-“beyond tears” thought she could free him—

“I thought we were living in a legal state”

“But law had become weaker as a guardian of justice”

Tell you this not to say we are living in Germany of the 30’s–­ (Naomi wolf -letter to a young patriot-echoes of 10 steps)—

But to emphasize the dangerous direction bush admin—with cong as handmaiden-has taken this country—

(cong—no longer exec–dta mca failure to restore habeas; rendition, no hearings–torture)

question whether we are living in a legal state-law not matter-­

  1. Detentions without trial—or any right to go to ct-
  2. Disappearances
  3. habeas corpus stripped

Secret detention sites —no access and no attys


  1. special trials

Restraints on executive evaporating

Admin. Undermining of principles of Magna Carta-1215-outlawed detention at whim of king and embodied the principle of authority under law–

Key protection of liberty—-free from arbitrary detention —

Littens story is of course close to home—

Reminds me those kept at Gitmo—off shore penal colony–­ CCR role—and representation—still fighting for right to go to ct— 6 years

(now attys at least); Number left—275 left—

Most overt torture—-stopped —

But still a desperate place—no exit—lives destroyed—


A few weeks ago-heard the following—one little item–­

-hunger strike—broke with forced feeding—

9 remain and forced fed daily—one man over 820 days

How they do it-incredible cruelty-broke most of it-­

–attempted suicide-a number—most recent —

Cut his own throat with a sharpened fingernail That is gitmo—forced feeding suicides and hopelessness

Recently reading a disturbing book—the Slave ship—

Slaves on the middle passage—desperation—kill selves—hunger strikes or suicide-

Hunger strikes—met with cruelty–forced mouth open;

–Instrument called a speculum oris—force open throats and pour gruel into those who refused to eat—-

suicides—story of a slave “ripping open his own throat with his fingernails”

these are Acts of those in desperation—hopelessness–­

Gitmo only tip—what we see—what we don’t see—­ What we don’t see is Bagram-ghosts and torture

What we don’t see are Secret Sites—tell you about our client there Don’t see the Disappeared—–gone

  1. Over the last few years I have become acquainted with Henri Alleg, a French Algerian, in his 80’s who was water tortured —or as this admin says-water boarded–by the French

Here is how he described his water torture-a practice that goes back to the inquisition—

The rag was soaked rapidly. Water flowed everywhere: in my mouth, in my nose, all over my face. … I tried, by contracting my throat, to take in as little water as possible and to resist suffocation by keeping air in my lungs as long as could. But couldn’t hold on for more than a few moments.

I had the impression of drowning, and a terrible agony, that of death itself, took possession of me.

Think about Henri Alleg — when you hear the CIA talk about “enhanced interrogation techniques”—or think about– a terrible agony, that of death itself,— taking over you– when you hear our new AG refuse to condemn water boarding, or when you hear that some of our democratic leaders were briefed—and made not a peep of objection-

Or when you hear Cheney —a little dunk in the water— No doubt a country of torture—-a torture program–

While I am discussing water boarding -water torture-a word about the Tape destruction-hundreds of hours—

Why? Don’t know

See it is torture—–

Outrage in muslim world—know–pic If it works-keep them—proof torture

Crim pros—from the beginning-gonzales; memos; mca;

Not looking at the conduct—a head or two may roll—-but not the bottom­ The conduct itself —

Use of evid from torture—

Step back a bit—

III. 1. How we began—the gitmo story-and where we are

Sad -chapter —consequences with us a long time–

but also has its laudable aspects-esp the response ultimately of hundreds of lawyer who stepped forward to rep. Gitmo detainees-who understand what was at stake at gitmo

November 13-coup d’etat order—-kidnap detention spec trial no habeas CCR discussion—

Worst of worst—

Gitmo-the Haitian cases—(bush Clinton) What is gitmo 45 sq miles the lease

The first cases—hicks jan 11 and the UK people–­ The hate mail—invite Taliban let eat children etc

Rasul—first case—what was at issue habeas—Eisentrager-right to go to ct

(non citizens enemy aliens held outside US) No access to clients

Lonely—no other organ—

Case not about torture—not know until later-at least after s ct arg-­ Dist cir s ct

June 2004—victory—habeas—6-3 Executive detentions-magna carta—

HC –Statute-gitmo like US—const implications—

What did we do—habeas —visits—names-put call out to lawyers–­ Heroic chapter—

What did bush admin after Raul –csrt-enemy combatant-stay out of ct What did cts do—defer defer appeal split–

What did cong do—dta—get rid of habeas—question did it apply—-

Rasul: thought beginning of end-beginning of beginning feel like Sisyphus —

  1. Second set case-cong did not do it right—still habeas —Hamdan­ June 2006—

(also—applied Geneva and common article 3—human treatment provision impt for when we get to toture)

  1. Then what did admin do—went to cong—to do it right–­ What did cong do—gave us mca—nasty—amnesty; redefine torture Habeas gone-

What did cts do—we lost in cir—no right to habeas—2-1

And now we wait-s ct argument—ct changed—lost oconnor-and got roberts (Rehnquist and alito)(where were dems?)

Diff possibilities—habeas—but then what std—

(even if ct review and habeas what is std-is it preventive detention 

enemy c9mbatant– or crim trial)

No habeas and csrt adequate—–

Almost 4 years—and 6 years since first detainee –never a hearing–­ No matter what happens a long way to go—

Preventive detention scheme —exec detention scheme—

But our Successes—long hard struggle—

  1. chapter in legal history—lawyers got it—600 or more
  2. got there stopped torture; or most overt
  3. who there worst of worst-not the case–
  4. over half out—other countries;
  5. national issue and international issue—jan 11 demos (what happened to Hicks—20 to 9mo)(tipton)

How do we close it?

  1. we are pushing countries-time
  2. activism
  • Lawsuit-hearings—almost all out;

Why not if a national embarrassment—even bush says close; joint chief

-want it there-

How did we close HIV camp—organize—op h tubman

What do candidates say? Do we believe them? (Clinton Obama Edwards; Romney guliani- Huckabee— mccain

Still only gimto—what of bagram? No one talking about it What of rendition—and what of torture–

  1. Torture—

Looked at gitmo– -interrogation camp but not a torture camp–

Knowledge at least for me began with my visit to tipton 3- march 2004–­ just before abu gharib—oxford—not sure believed them-

False confession—UK discovered— Rumsfeld techniques—

Prior to Rasul case– first case argued in April 2004 almost nothing public–­ Hypothetical question during arguments in companion case Padilla—a wk later—-

Justice Ginsburg ask atty for govt-concerned that no circumstances for ct to examine exec conduct:

  1. Suppose the executive says, “Mild torture, we think, will help get this information?” It’s not a soldier who does something against the code of military justice, but it’s an executive command. Some systems do that to get information.
  2. Well, our executive doesn’t, and I think – I
  3. What’s constraining? That’s the point. Is it just up to the good will of the executive? Is there any judicial check?
  4. You have to recognize that in situations where there is a war — where the government is on a war footing — that you have to trust the executive to make the kind of quintessential military judgments that are involved in things like that.

Trust the executive to decide on whether to torture and nothing the ct can do—-(feb 7 2002 military ness order)

a few hours later—any chance you can trust gone; not going to lose; ct a role—abu Gharib—

Since then clear a country of torture a torture program–­ Abu gharib no aberration—

  1. -miller-gitmo-to gitmoize-others from af–

(only officer Jordan acquitted–)

  1. memos— redefined; justified— public about it–­

–aug 1 torture memo—

Why—avoid crimin prosecution—

  • many many clients: Mohammad Al quitani—the log—-gtimo–
  1. majid khan-secret sites—his story—

Of course not only time—police precincts to south America­ Diff—attempt to legalize, justify as ness-

Almost as want world to know — Complex reasons—our method of terror–­

Naomi klein—part of shock and terror doctrine—

Marnia Lazreg— Torture and the Twilight of Empire: From Algiers to Baghdad

—justify their systematic use of torture as a regrettable but necessary means of saving Western civilization from those who challenge their rule—spread terror

See torture in context-underlies it-more difficult to stop—

  1. not that we have not tired Our and others litigation to stop torture-US—-lots of it—
    1. Mostly defeated in US—failed and worse—

–One judge-arar case– even said set only said cant torture for

evidence—but may be able to for stopping terrorism—arar-sent to Syria for torture;

—lost Rumsfeld case-a few days ago

  1. no criminal prosecution up the chain of command
  2. no serious cong invest even today–­ Again ct exec and cong sitting on hands—-­ What do you do? legally—

VI Europe—

german france Spain—-

indep prose — cia kidnappings and flights—italy- spain- germany(masri) marty report—more there

vii The Candidates —candidates-not a huge item—enhanced interrogation techniques Romney Guliani; — Mccain and Paul fine

Clinton-cong can ban –a bit equivocal

Obana-cong can bar and torture and enhanced illegal Edwards-opposed and cong can limit

(never believe them—we need to be engaged)—-

Close—Sadly—Today—kidnappings, detention, torture and disappearances, surround us like plagues–

Most of this country goes on its way-oblivious–­ Some don’t want to know, and are like ostriches–­ Some want to deny it—

Some want to make comprises—

Some want to justify it all—worst—dante’s 9th circle–­ Deniers at least understand it is illegal immoral

But be should all be warned–We are at a tipping point—a tipping point into lawlessness and medievalism—

If I have any message for all of us today it is this We have our work to do–

For each of us—the time for talking is long over—

This is no time for compromise or political calculation–­ As Howard Zinn admonishes us:

“It is the job of thinking people not to be on the side of the executioners-“

And that is what I admonish all ofyou—­ Not to be on the side of the executioners–­ Thank you all—-