“From Guantanamo to Berlin: Protecting Human Rights after 9/11” Michael Rather
This talk is tilted “From Guantanamo to Berlin: Protecting Human Rights after 9/11” because of what Guantanamo represents in the world right now, and what it represents to me as one of the lawyers for the Guantanamo detainees. The title includes Berlin because Berlin is one of the places where we at the Center for Constitutional Rights have tried to hold former Secretary of Defense Rumsfeld responsible for the horrors of Guantanamo.
I went to a conference in England a couple of years ago where we brought together a group of lawyers from around the world as well as Muslim lawyers and human rights activists. They said to me, “Guantanamo has become really iconic in the Muslim world for everything the United States is doing wrong in the so-called ‘War on Terror.” They ticked off the illegalities and the moral outrages: First, indefinite detention without any trial or any right to go to a Court (no Habeas Corpus); Second, torturing people and sending people who are en route to Guantanamo to other countries to be tortured; Third, to the extent they’re going to try people they’re trying them before some kind of a kangaroo court called Military Commissions. So, while I represent Guantanamo detainees, Guantanamo really in some ways is only the tip of the iceberg. There are a lot of other prisons out there that the Bush administration is running such as Bagram where we have no access and secret prisons in Iraq and other places, where torture is occurring. Guantanamo has a lot of the world’s focus because it’s so public now. Compared to when we began the case, there’s now a big movement to stop Guantanamo — to close it down.
One of the groups I work with the most closely is a group from the Catholic Workers who have been the most militant about closing down Guantanamo. They organize a lot of demonstrations and in early January 2007, on the 5th anniversary of Guantanamo, they organized a demonstration in Washington —300 people in orange jumpsuits with hoods — got arrested.
In thinking about the talk tonight, I thought I should go back and read some of the hate mail I’ve gotten for representing Guantanamo detainees. So, I went back, and, and in the early days, (I and the Center for Constitutional rights began our first cases in February of 2002 — or even earlier) I got hundreds of hate mails, maybe thousands. And I thought I’d read a couple just to give you some sense of the themes and explain to you a little about what I’m doing and why I’m doing it. Some were quite vicious; I’m not going to read those. Here’s one that is milder:
“If you think the treatment of the terrorist idiots is inhumane, why don’t you take them home with you to meet your family? Why don’t you go volunteer to guard them unshackled? I would be interested in hearing your pathetic answer.”
That one was pretty typical. Here is a second one:
“These terrorists do not follow any rules of engagement. They live in dirt and caves, plotting ways to kill innocent civilians based on their religion or nationality and you feel they deserve respect? Were the people who died on September 11th treated humanely by these terrorists?”
And a third one:
“Stop coddling the murderers at Guantanamo and spend your time doing something worthwhile for society. They are entitled to exactly the same consideration they gave the workers at the World Trade Center and the Pentagon.”
That’s the kind of mail we got in the first year at the Center for Constitutional Rights while we were doing the Guantanamo cases. It’s changed a lot since then and I’ll go into that. When we won a Supreme Court Case in June 2004 granting the detainees habeas corpus rights we got different kinds of letters. I received letters saying, “You’ve restored our faith in America”
The letters can be grouped around certain themes. One theme is: Terrorists don’t deserve any rights. The assumption of these letters is that we have the right guys at Guantanamo or in Bagram or wherever else, and we know they’re the right guys which,—turns out in Guantanamo to be completely wrong. Moreover, the rights we are speaking about e.g. a court hearing, help determine whether or not we have the detainees who are the guilty ones. Unfortunately, we have many of the wrong guys, and are pursuing a wrongheaded policy. Another theme is that the terrorists did not give us any rights when they attacked the World Trade Center and so why should we give them any rights. Again, it assumes these detainees are the guys who attacked the World Trade Center. However, even those that might be guilty must be treated humanely and lawfully. Colin Powell gives us one of the reasons: We mistreat people, and we will be mistreated ourselves when we are captured as soldiers or otherwise ,whether it’s by this particular group or others. How we treat one set of people is how we will be treated by others.
And then the question you must ask yourself is: “Since when should the gauge of how we treat people, terrorists or not, be how we were treated?” And that certainly is what I think — that we have an obligation to fundamental human rights, no matter what really happens in the world. We have a moral, legal, political and pragmatic reason for treating people according to law and morality.
There is also the more personal question: Why are we defending them—those at Guantanamo and at other secret sites around the world? There’s the classic, easy answer of every defense lawyer. Our job is to defend people and that’s what we do, and that’s the way our American system works — you defend people, and then the truth comes out. But for me there was actually a deeper reason at the time. It’s that the rights that were being taken away were so fundamental, particularly the right of Habeas Corpus and the right to be free from torture, that I was terrified that our democracy was coming to an end. I looked at what was happening to our clients— I looked at them a little bit like canaries in a coal mine — that what was happening to them really tells us about what’s going to happen in this country and around the world going forward. And my view is, if you can take away those rights, and simply grab someone by the scruff of the neck and throw them into some offshore penal colony because they’re a non-citizen Muslim that is not going to be used only against non-citizen Muslims. These are deep rights that I think are fundamental and necessary to protect. So, those are sort of my generalized answers to this kind of hate mail.
So, I’ve answered a little bit about: “Why Guantanamo?” and then the question is, “Why Berlin?” Berlin is interesting. You know, we’ve tried for a long time to get accountability for torture, particularly, in this country, going up the chain of command, to Rumsfeld and others, and we’ve failed utterly. We failed in Congress. We’ve pretty much failed in the Court on suing these guys, and so we tried to use a concept called “universal jurisdiction.” Some sorts of crimes are considered international crimes — torture being one of those — and Germany turns out — partly because of its past — to have the best single law for prosecuting people who commit torture or serious violations of international human rights. So we went to Germany to file that case and I’ll talk a little bit about what’s happened in Germany. Another point, of course, is there are U.S. soldiers sitting in Germany who actually were involved in the torture. Finally, of course, there is history, the history of where the law that I practice really came from. It originated came at Nuremburg in the aftermath of the Second World War. So, “From Guantanamo to Berlin” contains the idea that we’re going to have accountability someday for the tragedy of Guantanamo.
I want to say another word about how the Center for Constitutional Rights got involved in these cases. It illustrates, really, what’s going on in — not only my own life — but in the life of the country. I became a lawyer in the early 70’s. I went to work at place that I thought would be defending primarily people that I agreed with. The Center for Constitutional Rights was not the ACLU (and I don’t say this in a negative way) that would defend a Nazi who wanted to march through the streets of Skokie, Illinois—as important as that case might have been. I wanted to defend people who were trying to make progressive social change; people that I agreed with. We defended Southern civil rights demonstrators, people opposed to the Vietnam War, people who were in movements across the world trying to change the repressive governments of Guatemala, Haiti, and other places. These were situations in which I was in general agreement with the clients that I was representing. At that point that’s what the Center stood for. It was representing social movements for change and trying to make a better world in a broad way. Now with this new set of cases, I can no longer say the situation is the same. Today we at CCR are representing people who, obviously, in many respects have significant disagreements with about how they see the world. Rather than trying to fight for social movements we agree with, we’re fighting for what are our fundamental rights. And, we’re doing it, really, in part because the rights are so fundamental; the right of Habeas Corpus goes back to 1215 — the Magna Carta — and it’s the hallmark of any democracy.
The most important event occurred on November 13th, 2001. The President issued what he called “Military Order No. 1.” I went into the office November 14th, having read the Times, and being utterly and completely shocked by what I saw in that Military Order. That, and the grab for executive power that underlies it, is still what we’re working off today–whether you call it “commander-in-chief powers” or executive powers or war powers or whatever. The Order had two really important aspects. One, it said the President could pick up any non-citizen anywhere in the world and throw them into prison anywhere in the world and they would essentially be disappeared (it didn’t use that word—but that was the effect). Those so imprisoned would never have any right to go to court, never get a lawyer and held incommunicado for as long as the President wanted that person to be held. Basically it was indefinite detention for life without going to Court and done solely at the behest of the President. And that’s really what we’re calling the abolition of the Writ of Habeas Corpus, or the abolition of the right to go to court: the right to go to court and say to the government, “Why are you holding me in prison?” I am not saying to you that the government can’t hold people; but I am saying a government has to justify any and all detentions in a court of law. So this was really a huge issue for us at CCR.
The second part of the Military Commission Act said that if the bush administration decides to try people, they can try them with these things called Military Commissions — what I call kangaroo courts — special courts made up for the purpose of trying those detained. So, those were the two big issues, and there actually was some debate at the Center for Constitutional Rights on whether we should be involved. Rumsfeld was calling these people “the worst of the worst,” and we didn’t really know who we would wind up representing. Were these going to be the people who actually were involved in the conspiracy to attack the World Trade Center? Obviously, we weren’t going to be comfortable doing that. When we decided to take these cases, we wondered whether this was something we wanted to do.
There was debate about it. I went to my office I told this story about the Central Park Jogger Case. I don’t know; you probably aren’t familiar with it, but it’s concerns the rape of a white woman by — allegedly at the time — five black young men in Central Park. It took place in the ’80’s. We had a very famous lawyer at my office named Bill Kunstler and he wanted us to represent the Central Park Jogger Five, African-American young men, who supposedly had raped this white woman in the park. My office actually turned it down. It was considered 100% that these guys were dead guilty and that we didn’t want to be involved in the representation. Donald Trump put a full-page ad in the New York Times calling for the death penalty; and we didn’t represent them in the end. They were all convicted. And then Bill Kunstler, in his book, writes about how the Center refused to take that case. In the end, right at the time of the 9/11 attacks — right at that moment — it comes out that those guys gave coerced confessions; they confessed to a crime they didn’t do, and every single one of them, after they’d been in jail for 15 years, was released and is out of prison.
So when we were deciding about the Guantanamo cases, I took the pages from Bill Kunstler’s book and I circulated them through my office and I said, “Look guys, we’re talking about a fundamental right; we don’t know what’s really going on here, but right now, it looks to some of us that the military order was effectively a coup d’etat—a coup d’etat had happened in America. The idea that the President could actually just take human beings, throw them in prison forever and not give them any access to a Court was a frightening power—the power of a police state and not a democracy. So we decided to take the first of the Guantanamo cases. It turned out to be this guy who was finally released from Guantanamo over 5 years later— a guy named David Hicks — an Australian. We didn’t know David Hicks. David Hicks didn’t know us. We called Australia. His name was in the paper. We called his attorney in Australia or more accurately the attorney for his parents. We got the right to represent him through his parents, a procedure in our Courts called “Next Friend.” Hicks was sitting in Guantanamo and his father said, “Yes, we’ll have you represent him,” and with that we decided to file on behalf of David Hicks, even though we knew nothing about his case and he knew nothing about us or even that he had lawyers.
Once we decided to take the cases at the Center we also knew we needed help. “Well, how are we going to get other lawyers to take this case?” There was a handful of us, and we had trouble getting other lawyers. We couldn’t get any other human rights organizations to take the case; we couldn’t get most other lawyers, even progressives to help out. This was four months after 9/11. We got three lawyers to assist us, and they were all death penalty lawyers. And death penalty lawyers are used to very unpopular cases. They go into a community after a family has been wiped out in some way by an alleged suspect and they are willing to represent the people, and those are the only people who came forward to work with us on the Guantanamo cases.
The lawyers and human rights groups we talked to were afraid of two things: they were afraid that there was no way you could win these cases because there were very bad legal precedents coming out of the Second World War and before, and they were afraid of the anger in the country, some of which I gave you a sense of. So, the first case is this David Hicks case, and also a case on behalf of these Tipton men– they’re the English guys who we also wound up representing. This was not because we got to Guantanamo; we didn’t know anybody; there were hundreds of people being taken there — you’ve seen the pictures of the jumpsuits and the dog runs and all that — but, because families got notified by their embassies so we got to represent people. We went into court on a very straightforward proposition that Habeas Corpus meant that every, single person detained can go into a court, and say to the government, “Tell me why you’re detaining me. Give me the legal justification for why you’re detaining me.” Well, you can imagine. We had very few lawyers; the first times we argued these cases in court, the courts were completely empty and the lower level judges looked at us like we were talking to a wall. I mean, they thought we were completely out of our minds. We lost the case in the lowest court; we lost the case in the middle court; and then we get into the Supreme Court in 2003-2004. I didn’t argue the case, but we got an incredible former republican judge, a court of appeals judge, to argue the case in the Supreme Court: John Gibbons, and we won the case in the Supreme Court, 6 to 3 on the grounds that people detained in Guantanamo — and arguably people anywhere in the world by the United States — could go to court and file a writ of Habeas Corpus and ask the government, “Why am I detained?” And the government had to demonstrate a legally justifiable reason for the detention.
Now, one thing I have to explain: it’s slightly technical, but the Court decided in our favor on the basis — not that the Constitution requires habeas — but that the federal statute requires it — the right of Habeas Corpus. The Court simply avoided the constitutional issue. That is when we started getting letters: “I feel better about America,” “You’ve saved us.” However despite that victory in June 2004 we still have not had one federal court hearing in two and a half years for one of our clients. That is really the next part of the story of what happened with our victory in the Supreme Court.
However, the first thing that happened after the victory was that lawyers really began one of the great pages of legal history in the United States. We wound up getting the names of many, many Guantanamo detainees. We have a big staff that did nothing but track them down in Muslim countries around the world — through their families, and others — and we wound up getting the names of almost all — four or five hundred people at Guantanamo at the time. And then the law firms started stepping forward to take the cases on a volunteer basis, and almost every major law firm in the country now represents Guantanamo detainees. So, we are now sitting with a group of 600 lawyers across the country, each of whom have three or four people— sometimes one client — on their own money going to Guantanamo, visiting clients, etc., etc. So it’s been a magnificent chapter, in my view, in American legal history.
So, they’ve all come forward and we’re coordinating those people out of my office as well people in my office who’ve been going to Guantanamo. So there we go. We win; we think we’re going to get the right to Habeas Corpus in federal court and what happens? We first get our right for lawyers to go to Guantanamo and that will be the second part of this story, which is the torture story, which is how that started to come out and why it’s good to have lawyers go to see clients, because it’s harder to torture them when you have a lawyer visiting them. But the next thing that happens is the Bush Administration goes to Congress and they say, “Well, we don’t like this idea that there’s these lawyers going down to Guantanamo and they’re doing all this litigation and their Habeas Corpus, so why don’t you strip Habeas Corpus out of the Federal Statutes?” Remember, the Supreme Court hasn’t said it’s Constitutional, yet. They just said it’s a Federal Statute. So what does Congress do? And they quote me at great length unfortunately on the floor of Congress. And they use ellipses a lot, so I said, “How are you going to run an interrogation and torture camp if lawyers go to Guantanamo?” And of course they take out the word “torture,” and they say, “How are you going to run an interrogation camp?” And then they say, “See Mr. Rather says ‘we don’t have any right to interrogate people,’ and he’s getting people killed,” etc. And they just re-printed that quote in a full page in the Wall Street Journal which is, again, an attack on the lawyers on Guantanamo.
In any case, they get this Act passed called, “The Detainee Treatment Act” and we lobby against it. It strips out the right of Habeas, but we got enough fiddling around with the democrats so that it looked like it might not apply backwards, but only forwards. In other words, it’s not retroactive to apply to our clients. We go to the Supreme Court again for the second time another year and a half later. Our clients, meanwhile, had been in Guantanamo four or five years — now it’s almost six — without any kind of hearing in court, without any basis for their detentions. We go to the Supreme Court again, in another case called Hamdi which was decided in June 2006, and the Supreme Court again says, “Congress, you didn’t do it right. If you’re going to strip Habeas, you can’t do it this way.” And they again restore the right of Habeas Corpus to us. Great. We start going, getting ready again and then, what do they do? They Bush Administration goes back to Congress this Fall and that’s where we get the Military Commission Act, only there’s many aspects to that Act I can talk about.
Let’s just talk about Habeas for a second. This time they go to Congress again —same Michael Ratner quotes, same business. Then they get the Military Commission Act, and this time Congress does what they didn’t do last time. This time they say, We’re stripping it; it’s retroactive — it’s forward; it’s backward; it’s anybody at Guantanamo —no right to Habeas Corpus. And then they go farther and they say, No non-citizen anywhere in the world who’s been classified as an enemy combatant by the President has a right to Habeas Corpus. So, when I was talking to students this afternoon, there were some people who are permanent residents or student visas, and essentially, what that means for people in the United States under this new statute, is that the President could pick up a permanent resident in the United States tomorrow, take them to Guantanamo, take them to Bagram, never hear from them again, and there’d be no Habeas Corpus right, according to the Congress. So, it wasn’t just about Guantanamo anymore; now it went to a much wider spectrum of non-citizens, even people in the United States. So, there you go. We — The Supreme Court, we win; . . . Detainee Treatment Act; Supreme Court we win; . . . Military Commission Act, and of course that brings us to where we are today. The example is, you know, it’s Sisyphus. If you push the rock up the hill, rolls back down — Republicans roll it over your head again — push it back up . . . rolls it down again, and now we’re pushing it back up again. So, where are we now with these cases, just in terms of . . . technically? We’re back trying to get to the Supreme Court again.
We lost the case. Now, let me say the difference in the cases, now. Now, you’re talking about: they’re no more Statutory Right to Habeas Corpus; it’s been stripped. The only thing that’s left is: Does the Constitution give us a right to Habeas Corpus? Does it give that right — not just to me as an American Citizen standing in Cleveland — does it give it to a non-citizen standing in Cleveland, and does it give it to a non-citizen in Guantanamo, in particular, “outside the United States”? And the Constitution doesn’t say a lot about Habeas Corpus. It only says, “The writ of Habeas Corpus shall not be suspended except in times of rebellion, safely, and invasion.” So, the question is, what does it say? And we lost the case 2-1 in the Court of Appeals on whether there’s a constitutional right for our people in Guantanamo. If the Court ultimately says, “no,” that’s it. The people in Guantanamo, the people in Bagram, the people in wherever — the secret sites, if we ever get the name of anybody — they’re there forever without any kind of court review. So, it’s going to be a big, big question. We lost 2-1 with the same judge who ruled against us before in the Court of Appeals. He doesn’t care what the Supreme Court thinks; he’s just going to rule his way. It’s likely we’re going to win in the Supreme Court; it’s likely we’re going to win 5-4 because O’Connor has been replaced by Roberts. Alito and Rehnquist, that’s a tie. But O’Connor and Roberts are not a tie and so when you think about it —that the Right of Habeas Corpus is hanging by one judge — justice in the Supreme Court —I find that quite remarkable.
Meanwhile, where are we on Guantanamo? There’s 385 people left in Guantanamo. And the situation is pretty desperate, and we have lawyers go there all the time and, you know there’s been three, unfortunately successful, suicides. There’s hunger strikes that go on in which they actually, still, are torturing people in a hunger-strike situation. There’s a lot of literature on hunger strikes and what you do with people on hunger strikes and a lot of it comes out of the Bobby Sands case in Northern Ireland, and whether you need the consent of the person before you can force-feed them. But, what you do is, you don’t force-feed them within the first week of a hunger strike. You let them get to a point, and then decisions are made, either medically, or by the person. What they’ve done with the Guantanamo people is they strap them into a chair, head and everything, and then they take a very thick feeding tube, and they stuff it down, through their noses, without any anesthetic and they force-feed them in that way within a week. And within a week if usually breaks a hunger strike, because it’s actually a very, very painful method.
So, there’s 385 people left there. We’ve actually gotten 300 out, not one because of a court hearing. We’ve gotten them out, mostly, because even the Government acknowledges that the majority of the people shouldn’t have been there. And, we’ve gotten them out also because people in various countries have protested, and countries have protested, so the Europeans got their people out very quickly. The United Kingdom had a strong Human Rights Movement — those people got released. Even today, there are 85 people who even the U.S. admits are not guilty of anything. They were picked up in the wrong way. And they have nowhere to send them, though, because they were either — they’re Weagers [Phonetic] from western China — they can’t be sent back or they’ll be repressed in western China. There’s no other country willing to take them. They sent some of them to — We woke up one day, we were in Court, they sent five guys to Albania. They don’t speak the language; they’re in a refugee camp, there. What’s going to happen in the end, I saw (?) Col. Wilkerson the other day. He worked for Colin Powell, and he now is denouncing a lot of these policies, particularly Guantanamo and some other torture stuff; and he said, when they were doing this, Powell got on the phone with Rumsfeld, and he said, “What do you think you’re doing? What do you think is going to happen at the end of this road? Where are those people going to go? What are you going to do with them?” And of course, that’s the problem, and now you’re seeing Senator Graham from North Carolina saying, Well, we’re not going to take them here in the United States.
There’s going to be very few trials. We can talk about that. These military commission’s are — My first client is facing a military commission trial but there’s going to be very few of those. Then the question is: Who are the people? You know, are they really the people I thought they were when we began this representation — the worst of the worst? People who are going to chew through hydraulic cords and bring down airplanes? In fact, they turn out not to be. Sure, there may be some that are bad people, but the so-called “worst” people, the so-called “high-value detainees” — they weren’t taken to Guantanamo, they were put in secret detention facilities and who knows even where — how they are, but when you look at who they are, first of all, half of them have been freed already, so that’s a start, and 80 more are about to be freed, I hope, and — if we can find a place to put them. But then, one of the lawyers on these cases is a guy (named?) Mark Denbeaux and he teaches at Seton Hall Law School. He’s done some amazing studies of the Government’s documents on who’s at Guantanamo. I think the most surprising statistic is, How do they get there? Only five percent of the people were actually “captured” — whatever term you want to use — by the United States. Ninety-five percent of the people were picked up by warlords in Afghanistan or by Pakistani intelligence, which was, of course, heavily supporting the Taliban through much of the Taliban Period. And they were turned over for bribes; the U.S. dropped leaflets all over Afghanistan and Pakistan saying, “You can be rich; $5,000 — you can buy animals for your family; you will never have to work.” And so what got settled were a lot of scores and a lot of differentials around money. And, so, the majority of people at Guantanamo — Well, 95% were picked up in that fashion, so you can imagine who they got. And those are the government’s statistics. That’s not even from our lawyers.
The other statistic that’s interesting: Even the Government, which uses mostly coerced and tortured evidence to find anything on anybody has said that only 8% of the people have any relationship to al-Qaeda; 92% have nothing to do with al-Qaeda. So, if you wan to ever find those studies, we have them on our website, but also Seton Hall, the students and the professor have just done an incredible job.
The other thing that’s going on with Guantanamo is the serious undermining of the lawyers who are representing Guantanamo detainees, and you know, it began, first of all, with, you can’t have a lawyer. Period. That took us two years to get that, and to get people into Guantanamo. And of course to go to Guantanamo, you need security clearance — Anything your client tells you, you write down and you hand it to a security official, there; it then gets sent to Washington, and the only place you can do the legal work is what’s called a, “secure facility” in Washington, D.C. So, they’re making it like it’s this huge thing. A lot of the stuff that eventually is de-classified is embarrassing to the government: you know, torture, chaining to the floor, that sort of stuff. So they didn’t want lawyers at all.
Then the next thing: they tried to undermine our representation and they told some of the clients, the Guantanamo people, your lawyers are Jewish, and therefore, you shouldn’t trust your lawyers.” To the clients’ credit, they saw through that, and they just figured they’re being manipulated by the Government. The most direct attacks you may have read about recently. A guy named Cully Stimpson who is in charge of Detainee Affairs for the Pentagon. He went on the air about three weeks ago, and he read a list of fourteen of the major law firms who are working with us on Guantanamo. And he read the list of the 14 firms: Sherman & Sterling, all the big ones, Mayor, Brown; the whole set of big law firms out there; and he said, you know, what we ought to think about here — This is on the radio and in the Wall Street Journal, of course, follows up with a nice editorial about it or Op-Ed. He said, You know, these law firms have a lot of clients, and they are paying the bills for Guantanamo, because even though it’s pro bono, these firms are making a living off these firms, and there’s a conflict of interest because Al Qaeda is trying to destroy the economy of the United States and you guys by representing these people are hurting — there’s a conflict of interest. You’re hurting the interests of these other … — A year after 9/11, that would have probably been effective. I’m on the confidential list serve for the 600 attorneys we have working we run out of the center, and every lawyer down the line said, we’re not going to be bullied by this; we’re not going to be intimidated by this. This is enough, and they went after Cully Stimpson, and actually a week ago, he was forced to resign for making that statement. So, you know, there’s a change going on here, in the five years in terms of people’s willingness and ability and ability to stand up.
Unfortunately, the next day after Cully Stimpson, Gonzales makes a statement —our fine Attorney General — saying the reason people are still in Guantanamo, the reason there haven’t been any trials is because of the lawyers. The lawyers are going to court every time and we can’t get trials; we can’t get anybody tried. But, of course, the answer is: If they would do anything that was legal about what they’re doing: give them Habeas Corpus Rights, give them a fair trial, charge them — do anything, this would have been done, many years ago.
So, as I said, this is really a remarkable chapter in American legal history and I think we’re coming close. I mean, the democrats are now saying, We want the Habeas right back. We may get that right back within the next period. The democrats are also saying bring the people to the United States; put them in prison here. I’ll see the day when that happens. There’s some movement on it and there’s certainly a world-wide movement to close down Guantanamo. The day we did the demonstration with the Catholic Worker, there were demonstrations all over the world to close down Guantanamo. So, Guantanamo is what I call “Part One” of the story.
Part Two of the story is torture. Guantanamo was first for me about indefinite detention without Habeas Corpus. Part Two is really about torturing people. And I almost never consider myself nave about what my Government does. I’ve spent my life seeing them lie to the American people as well as to me all the time. And when the first people went to Guantanamo I actually didn’t suspect torture. I thought it was indefinite detention and interrogation and that they weren’t giving people the Habeas Corpus right but I didn’t actually suspect torture. And then three of our clients got freed, even before the Supreme Court victory. The Supreme Court victory came in June, 2004. Abu Ghraib photos came out in April 2004, and, and three of my English clients got out in February 2004, before anything was really known about torture. When I went to England, where they were sent, to interview them — Now, first — How did they get out? There were three young men from England, and their story tells you a lot about confessions and torture. They told me this story when I went to interview them in February about what happened. They said, “Well, we were picked up — one of us was there for an arranged wedding; one of us was putting in a water pump; we got swept up; we were picked up by one of the Northern alliance guys, one of the war lords, put into one of those containers, and eventually sold to the Americans.” And they were young guys. These guys, they were like my kids; they didn’t seem like people who would be terrorists to me at all. And they said, “We were assumed guilty when we went to Guantanamo.” And what they did with us, they showed us a picture of Osama Bin Laden in a field with 40 Muslim men with beards. And they said, “Isn’t that you, and isn’t that you in the picture? And my clients, the “Tipton Three,” (because they were from Tipton England) said, “No, no, that’s not us; we never met Osama; we never went to the the El Farook Training Camp. It’s not us; we were working in Curry’s [Phonetic] which is an electronics store in London, when this picture was taken or at that period of time.” “We don’t believe you; you have friends at Curry’s who could doctor the records, etc., etc.” They were assumed guilty. And then, they told me, and what I didn’t know then, was the highest policy of the United States — they start the torture regime. The first thing that happens is they get put into a room and they get locked to a big metal bolt in the center of the room on the floor, and the temperature gets taken way down, and it gets taken way up; they get stripped; they get hooded, they bring in a woman to sexually harass them, and then they bring a dog in. And they do this — sleep deprivation — they do this for a period of about 90 days with these guys. If you want to read the report, it’s up on the Center for Constitutional Rights’ website. And this is standard at Guantanamo at this time. We didn’t know it then. And I have to tell you, I was sitting there, and I sort of didn’t believe the story. I said, “Well, you know, maybe they’re just exaggerating.” I don’t know this story. And then they tell me that after this they decide that the best way to be treated better is to confess to something. And they confess that that’s them in the photograph, even though it wasn’t and they say, “Yes, we knew Osama; we were trained in the El Farook Training Camp.” And then, of course, it gets worse. Interrogations get worse; more of this goes on, and then luckily, because of the protests in England, MI-5, British Intelligence, gets into the picture and looks up their alibi, and yes, they were in England during most of the period, and it was an absolute, ironclad alibi, and they eventually get released, of course, not without the United States asking them to be informants and go back into their community and be informants.
But that’s their story about how — whether you call it torture or coercion or whatever you want to call it —how they gave their confession. That’s February-March, 2004. Then we go to the Supreme Court for our case and there are some companion cases on U.S. enemy combatants. And there’s this great dialogue with Justice Ginsberg and the Government Lawyer, Paul Clement [Phonetic], who’s arguing and we don’t know anything about torture. Abu Ghraib hasn’t come out yet. The argument takes place on April 28th, which, you’ll know is a significant date, soon. So, Justice Ginsberg turns down to Paul Clement and says, “Mr. Clement, I understand you don’t want to have the Courts involved in the Guantanamo cases; you think it’s inappropriate; you think it’s Executive — should be able to do whatever they want, here, but what if there’s torture going on?” And Paul Clement looks up at Justice Ginsberg — and I don’t think he knew differently — he says “That’s not the case. There’s no torture going on.” And Justice Ginsberg keeps pushing him, and says, “What if there’s just a little bit of torture?” And he says, “There’s not even a little.” Justice Ginsberg says, “What if it’s done from the Executive level?” I wonder if Justice Ginsberg knew something I didn’t know. And she keeps pushing him, and Clement says, “Trust us. You have to trust us.” And if you learn a lesson from this litigation, it’s about not trusting the Government and that is why you have courts and checks and balances. And, so, he says, trust us. Remember the date. It’s April 28th. What happens on the night of April 28th? CBS releases the Abu Ghraib photos.
So, we argued our case on the 20th, the Hamdon [Phonetic] case, which was not Hamadon [Phonetic], but Hamdi [Phonetic] case is argued on April 28th. Even if we weren’t going to win, we weren’t after that, because at that point, you’re saying, basically, the government is torturing people, and they’re saying the Court can’t do anything about it. Then, you have the Abu Ghraib photos, the Abu Ghraib photos come out, and then, of course, a whole series of investigations begin, and then all these documents come out and the main one that always has shocked me, is the Donald Rumsfeld set of documents. I have it on a slide, but it’s not worth looking at, because it’s hard to see, but there’s a list of interrogation techniques for Guantanamo, and they are: “Exploit Muslim phobias, e.g., dogs.” Now, look, most people are afraid of a growling dog. You don’t have to be a Muslim to be afraid of a growling dog. There’s a special sensitivity around dogs and Muslims, so, that’s one. “Remove religious items, comfort items, e.g., the Koran,” stripping, hooding, sleep deprivation, stress positions, standing and Rumsfeld scrawls on one of the documents: “How come only four hours a day of stress position? I stand for eight to ten hours a day.” So, this carried out from the highest level of our government, authorized by Donald Rumsfeld and others is really torture from the highest [level].
But, of course, what happens after Abu Ghraib comes out? If you ask most people, the Administration was essentially successful in saying it was down the chain of command. “It was a few bad apples. We prosecuted Lynndie England [Phonetic], we prosecuted Sgt. Graner —gave them stiff sentences but we didn’t go up the chain-of-command. The highest person we went up for was Janice Karpinski [Phonetic] who was in charge of the prisons. I know Janice pretty well; in fact, she flew to Germany with me, to be one of the witnesses of going up the chain-of-command, feels she was heavily scapegoat-ed for not being regular army, for being a woman, and she was actually excluded from this particular section of Abu Ghraib Prison, saw these documents on the wall, pinned up that said, “Rumsfeld, go get ’em,” listing the torture techniques.
The point of all these investigations is that essentially we were running a torture program in the United States from the highest levels. And they still admitted it. If you see Cheney in his early days, when he testified, he said, “You know, we’re going to have to go to the dark side.” He said that quote, and Bush on September 6th, when he’s closing the so-called “Secret CIA Detention Facilities” says, “We still have to use,” essentially, “these dark methods,” “to go after people.” What’s interesting, when Bush says, “We’re going to have to use those methods,” the Army is sitting there on the other side, saying, “We don’t need to use torture; here’s our Field Manual. There are 19 techniques. We don’t think it works; we think there’s other ways to get testimony.” And, again, when I talked to Wilkerson last week, Colin Powell’s Chief of Staff who has since resigned, he said to me: He’s the one that used the word. It’s not some progressive. . . He said, “What happened in this country was that Kabul started running the Government and Powell didn’t even know about the torture stuff and it was Rumsfeld; it was Cheney; it was Addington, who was Cheney’s lawyer; it was that whole crowd around them, and they decided to go off the rails and get engaged in torture.
One of our clients, actually is a fairly well known client. He’s — I don’t like to use the term, because I’m not sure he is— his name is Muhammad Al-Katani [Phonetic]. They call him the “20th Hijacker.” Who knows? But one of the lawyers from my office, a heroic woman lawyer who plays on this video tape, Gita Gutierrez, has been down to Guantanamo 12 times and this is her client. And his torture is famous, because Time Magazine got a hold of the log. I won’t give you those brutal details, but part of it is him being strapped in a chair and being intravenously forced to take liquids into his system and not being allowed to go to the bathroom, and just having to sit there like that. Part of is playing a dog. Part of it is 50 solid says of sleep deprivation, two hours a day. And there’s a book that if — to the extent you want to be interested in this subject — by Al McCoy — It’s called A Question of Torture. He’s a University of Wisconsin Professor and what he talks about in there is the way these techniques were developed over 30 or 40 years [by the] KGB, North Korea, United States, and they’re not physical beatings; they’re stress positions and sensory deprivation. And they’re considered to be much more harmful to people that just the old thumb screw. But . . . this kind of stuff to recover from and it is much harder; and it destroys the human personality much, much more quickly.
The last section on the torture part is the role of lawyers and you’ve probably all seen this stuff. There were lawyers in the defense department and in the office of legal counsel of justice who wrote memos essentially saying that torture was okay; that the President, in the name of national security, could torture in the name of self-defense. I like to call that the Pinochet Defense. Pinochet was, of course, the dictator in Chile, who, in the name of national security thought he could murder 3,000 people and run what was called “Operation Condor” which is going around the world, picking up people he thought were against his government and putting them into torture chambers. And his same defense was, in the name of national defense you can do anything you want. And they redefined the term “torture” so that it… — As one of my— I taught with Harold Koh, who’s Dean at Yale Law School now, and Harold said, “You know, under the definition that we use … — John Yoo, who’s a Professor at Berkeley now — And I actually spoke at Berkeley last week, at his University, and I’ve tried to indict him in Germany as well…— But Harold said, about Yoo, that under the definition he wrote for torture, Saddam Hussein would not be guilty of torture for what he did, and that’s how narrow [the definition is]. It basically was, you have to have organ failure, or the pain associated with utter organ failure for there to be torture. And Gonzales, no, less, decided that the Geneva Conventions didn’t apply because of his fear that they prohibited harsh interrogations.
And what’s really going on here — the reason they’re redefining torture, and the reason that that Geneva Conventions don’t apply — is partly because they want to do harsh interrogations. But the U.S. has criminal statutes. One that makes it a crime to violate Geneva, particularly Common Article Three, in “Grave Breaches” and the second one makes it a crime to torture. And so, you’re sitting there, some CIA agent — and they’re saying, “You want me to torture this guy?” “And I’m committing a crime? Well, I want to be able to have a defense.” And so, what do they do? They wrote all these memos and said Geneva doesn’t apply. So now, there’s a defense for people, who if the United States decides in some distant Utopia to go after any of these guys, they have this legal defense around torture.
The sad thing for me, as a person who’s spent my life fighting torture of basically every dictator in the world — I mean, I sued Vermah [Phonetic], who was the General in charge of Guatemala; uh, I sued Swarez Mason [Phonetic], the General in charge of Argentinean torture, Karjik [Phonetic], for Serbian-Bosnian torture, Eschimore [Phonetic]. Basically, when these guys come in, my office sues them. And now all of a sudden we’re faced with a certain acceptance of torture in this country that has been quite shocking to me. I mean, it’s done in television programs, like “24,” it’s done by pundits like, Dershowitz, and others; it’s out there as something that, essentially… I think people like me, we’ve lost that fight, almost. I mean, if you go to somebody and say, Do you believe in torture?, the answer is, no. If you go to them and you say, Do you believe in torture if it will help prevent the next 9/11? the answer is not always yes, but it’s “yes” much, much more often than I think.
And you know, one of the interesting people in this whole thing that’s happened here —We started this lonely band of Human Rights Lawyers, and now of course we’re going the spectrum to people like Col. Wilkerson. And the other guy is a wonderful guy named Alberto Mora [Phonetic]. I don’t know if you’ve heard of Alberto Mora, who is now the general counsel to Wal-Mart International. But he was the senior lawyer, he was the senior lawyer to the Marines and to the Army in the Pentagon; and he found out about what was happening. He got completely outraged and wrote a 30 page memo to Haynes, who is the Chief Counsel of the Pentagon about torture, and that we shouldn’t be torturing people, and ultimately Jane Mayer [Phonetic] wrote a long piece on Alberto Mora in the New Yorker, and now he speaks out incredibly, saying, this country has committed war crimes. And here’s what he said recently in his speech. “What was once unspeakable is now the subject of polite conversation,” said Mora. “Television shows like 24 had played a role in desensitizing Americans to torture. Cruelty, once held in disrepute, has been astonishingly rehabilitated.” Then he goes on: “The shifting public attitudes should bring us to the realization that the cost incurred and the damage caused to all we value, including our security, is too high.” So you do not just have the human rights lawyers; you have, across the spectrum now, people who are opposed to the policies on these issues. And to their credit, the first people who revealed torture, were the Alberto Moras of the world, and Pentagon Generals and others who, a year before Abu Ghraib came to friends of mine and they said, “We are going off the rails here in the so-called ‘War on Terror and we’ve gotta stop.” And my friend couldn’t reveal it, ’cause it was confidential, but he could talk about torture— so the military people were some of the earliest and also the FBI. We have documents from the FBI [agents] who went to Guantanamo just saying, “What are they doing down here? This is not the way we interrogate people. Why aren’t we interrogating people? We know how to interrogate people. What are they doing here?”
So my own position of course, morally, ethically, legally . . . I don’t like torture. The question we always — And I get asked in class: “Does it work? Does it not work?” You know, certainly my antidotal evidence from my clients [suggests it] didn’t work particularly well. It worked badly it puts us on a wild goose chase. In an individual case, it generally wouldn’t work. I mean, you tell the interrogator what the interrogator wants to know. I don’t really go to the pragmatic, because I think there are moral and ethical reasons why it shouldn’t be used, and the one time that McCoy — the author I [mentioned] — says that it might work, is in the example of Algeria. If you remember, the Algerians were trying to get free from French Colonialism. Maybe some of you have seen the film Battle of Algiers, the famous movie. What the French did is, they went into the Kasbah and they picked up 10,000 Algerians and they tortured all of them, including water-boarding, which is the mock drowning of people, which is what Cheney calls, “A little dunk in the water.” But water-boarding was actually a 15th or 16th century torture and was actually used in the inquisition in France in the 15th century. One of the most infamous tortures, and the French went in and they did this to 10,000 people. And, ultimately — because a couple of a hundred of them may have said some grain of truth, they crossed the opinions and they maybe — after torturing 9,000 innocent people, they got something about being able to destroy, you know, some of the network that was trying to get independence from France. But look at the results — what happened to France… I won’t show the interview, but there’s a guy named Henri Alleg [Phonetic] who is the editor of a major paper in Algeria, still alive, in his 80’s. He was water-boarded, and actually, never confessed to anything. He describes in his book called, A Question with an incredible introduction against torture by [Jean Paul] Sartre, an incredible book, but he says, what happened as a result of that, was, it was over; France could never again be in a relationship with Algeria in which the Algerians would have any respect for France at all. And then after that period, that’s when the Algerians took the war into the heart of France and started bombing Paris nightclubs after they were mass-tortured in Algeria.
That’s torture, and the problem for me, as a human rights lawyer, is that there is no accountability for it, and, and the problem is that, here in the United States is gone for years issuing State Department reports on every two-bit dictatorship in the world: Nigeria — everywhere else . . . You shouldn’t use military commissions, you shouldn’t torture people, you shouldn’t keep them in indefinite detention, and then after this terrorist attack we go and do that immediately. So, if you look at the future, what’s the future? I mean, it’s, it’s dark because the next time we want to criticize a country for this, they’re going to say, “What do you mean? You guys did that, too. You guys engaged in a torture program; you did that.” And so the question is, what does it mean for what I call the fabric of human rights, that has really been, primarily, established since the Second World War, and the experiences. And once the most powerful country in the world just cuts that in half, there’s no saying what the future holds, and so, I insist, as a lawyer, that there be accountability up the chain of command.
This last point links the two — Habeas and torture. As I said, the central point to me about torture is that it’s hard to torture people if they have a right of Habeas Corpus and if they have lawyers. The torture at Guantanamo really stopped when we started getting lawyers to Guantanamo. I mean, you can still screw around with people, but you can’t do what they were doing to them, and so, their right of access to lawyers and the right of access to courts — it’s a process question —is absolutely crucial. And that’s really a close, close connection with what I call the Pinochet Operation Condor, where that’s what we’re really doing. And one of our best-know clients, probably, is a guy named Maher Arar [Phonetic]. Maher Arar is a Canadian citizen — he has a wife and two kids in Canada — a Muslim man who happened to be born in Syria. His parents took him out of there when he was very young in part, I think, to avoid the military in Syria and other reasons, they would not in agreement with the government; and he’s a Canadian Citizen. And he’s transiting planes in Canada and — in Kennedy Airport on the way back to Canada. He’s coming from Switzerland, from a vacation in Tunisia, because his wife is Tunisian. And the American officials pull him off the airplane, and they interrogate him for 10 days, saying, you’re a member of al-Qaeda; they deny him any right to a lawyer and they just interrogate him time and time again, and there’s actually a play in New York that I just saw, about his case. Anyway, Maher Arar is eventually taken by this torture taxi, as we call them, to Syria, and he says, “Don’t send me to Syria, I’m going to be tortured in Syria. I know I’ll be tortured in Syria; send me to Canada where I belong.” The Canadians were implicated in here as well, but, he said ” I want to go to Canada.” They said, “No, we’re sending you to Syria.” And he starts to cry. He says, “I’m going to be tortured in Syria.” They take him on the private jet to Syria, and of course in Syria, he’s put into an underground cell for 10 months and 10 days, completely underground —three foot by, I think six foot high — six feet long; he’ll tell you in the little piece we’re going to see —and he’s tortured in that cell. And, eventually, because there was a huge stink in Canada about his case, Canada actually issued a travel advisory. Canada said that anybody who’s not native-born Canada should not risk traveling to the United States. They withdrew that after a protest from the U.S. But that’s how serious [things] got. So, he is the sort of “poster-case” for what we call we call, “rendition” or “extraordinary rendition.” There are hundreds of rendition cases. Europe is completely up in arms about it. It’s part of the fight-back that’s going on in Europe about it. But Maher Arar is out now.
So let me just say a word about Maher. If you hear him speak in person or if you see a video of him describing the ordeal he went through, you could tell that he’s been very damaged from what happened and he’s moved to Ottawa to a place on the West Coast; when you really talked to him, he had trouble — I don’t know how it is today -but even touching his wife or his children, having any emotional contact with them. We sued the United States in this case; we sued John Ashcroft and the other people who sent him — we believe knowingly — to be tortured. There is a law in the United States that says you cannot send people to a place where it’s more likely than not that they’ll be tortured — where there is a possibility or a probability of torture. It’s part of the Convention Against Torture. The United States took the position, and takes it publicly, that we had diplomatic assurances from Syria that they would not torture him. Now, you have to go back. All we did in the Complaint when we filed it, we went back and we read our own U.S. State Department Reports for the last 15 years on the use of torture in Syria. Every year for the last 15 years, our State Department Reports say that Syria routinely uses torture against its security detainees — every single year. Now, obviously they didn’t … they may have; we don’t know; we’ve never seen it… It’s not logical; it’s not right; it’s not what’s going on. They knew he would be tortured. He was actually sent there to be tortured. The questions he was asked by the Syrian — whatever they were — Syrian Intelligence — were the same questions he was asked at Kennedy by U.S. Intelligence.
There are two routes that have now followed in Maher Arar’s case. One is what I call, the “U.S. Denial” route, which is, “We didn’t do anything wrong; we had diplomatic assurances. We still think he’s a terrorist and he’s on our terrorist watch list.” Then there is the country I’d like to say still has a semblance of democracy — Canada to the North. Canada, actually, has done something really serious. Canada had a role in this case, because they had furnished the U.S. with some kind of information that the U.S. went way beyond — but it was somehow involved. Canada started a diplomatic inquiry. A public inquiry with a judge and they have subpoena power — we don’t have that procedure in the U.S. And they [heard] nine months of testimony, and at the end of it, they said, there’s absolutely nothing that Maher Arar has ever done that has any relationship to terrorism, he shouldn’t be on the terrorist list in the United States; we, the Canadians, should apologize to him and he should receive compensation for what happened to him. They then settled Maher Arar’s case for $9 Million USD because they felt so involved in what happened to him. They also insisted that the U.S. take him off the terrorist watch list. The U.S. said, “No, we’re not taking him off the terrorist watch list; we have evidence that he should still be on.” Canada said, “Show us the evidence.” They had a meeting together, the Canadian Intelligence and U.S. Intelligence. Canada walks out of the meeting and says there’s nothing here; there’s nothing new; there’s nothing different. This guy has nothing to do with terrorism, and he shouldn’t be on the watch list.” The U.S. Ambassador —this is under the Harper Government in Canada. This is not the — you know, the more democratic whatever you call it… The U.S. Ambassador to Canada then says, Canada should just stay out of our affairs; we’re leaving him on the Terrorist watch list. So, Maher Arar is really to me …
Some people could say, “Well, that’s the only case, he’s one innocent guy. It was a mistake.” But sadly, it’s not the only innocent guys, you know, from Guantanamo, and, sadly, had they given him a court hearing, this would not have happened. He would not have been sent to a country where he was going to be tortured. But that is the program. The program is to send people to countries that they’re going to be tortured, and then essentially use the evidence or whatever they get from people and I should say, Maher Arar, under torture did say, that the training camp must be the biggest camp in the world that he was in. He again admitted that he was in the El Farook Training Camp with Osama bin Laden, but he’d never even been to Afghanistan in his whole life. So that’s extraordinary rendition.
I went to Germany, and I had an experience in Germany that was pretty interesting on this. I visited the Terrain of Terror, which is where the Gestapo was located. And I hesitate to make very many comparisons to Germany, because we’re not that, obviously — I’m walking around here; there aren’t brown-shirts roving the streets beating us up, but the parallel has to do with the consolidation of executive power, and the belief that whatever the Executive says — in that case, the Furor — is essentially the law. And they had this huge picture on the Terrain of Terror of Hitler’s People’s Courts —with a puppet of Hitler appointing the judges, making the laws, sitting on the jury, and doing the sentencing. And when you talk about military commissions, you know, that’s really what you’re talking about. Although we still have courts, so far, that are willing to hold them unconstitutional. Then, as this flyer says, I received a prize in Germany called the Hans Litten Prize, and that’s only interesting — not because I received a prize —but because of who Hans Litten was. Hans Litten was a famous anti-Fascist lawyer who, in 1931 — two-years before Hitler took power — actually had Hitler on the witness stand and cross-examined him. He was representing trade unionists and they were suing the Nazi Party for beating up trade unionists, and one of his witnesses was Hitler. And he cross-examined him in one of the most famous cases in German history — cross-examined Hitler for two hours. And he was a 29-year-old lawyer, very courageous. The Night of the Reichstag fire happens, 1933, February, and the Storm Troopers pick up Hans Litten that night and that’s it for Hans Litten, essentially. And the next five years are even worse… for Hanns Litten [?]. It really tells me [?] about what it means not to have a lawyer and never go to court. His mother was very prominent. She knew the highest level people in the Nazi Party, and went to see this General and that General. “What’s happening to my son? Why can’t I have a lawyer for him? Why can’t I take him to court?” What do they say to him [her?]? “He’s in protective custody.” It was a famous case on the front pages of the German papers. “He’s in protective custody; there’s nothing you can do; there’s nothing a court can do. A court has no ‘jurisdiction’ over his case. He has no need for a lawyer.” And after five years of torture Hans Litten died at one of the concentration camps. And so, the positive part of this: first, the lessons I learned from that about what you need courts for and a process for, but when East Germany and West Germany came back together, they couldn’t agree on what to call their new, integrated bar association the lawyers’ association — which was made up of lawyers from East and West Germany and they decided to name it after this guy Hans Litten — this lawyer who had died in custody. So, it’s a remarkable story as a lesson to creeping along a road in which you begin to denigrate the checks and balances of a system like ours.