Guantanamo and the Lawyer as Hero: 500 and Counting – Northeastern University Law Journal – PDF

2009 Guantanamo and the Lawyer as Hero: 500 and Counting

I first visited the U.S. Naval Station Guantanamo Bay, Cuba in the early 90’s. I was part of a team of lawyers trying to close down a refugee camp peopled by HIV positive Haitians. Ultimately we succeeded, although we had to litigate our way through Republican (George H. W. Bush) and Democratic (Bill Clinton) administrations. It was a personally searing experience. Entire families were imprisoned behind barbed wire in 110 degree heat with little shelter and with even less hope. I described it after a visit as “Dante’s Ninth circle of Hell.”

When I heard in early January 2002 that Guantanamo would again be used as an off shore holding facility for human beings—this time a prison and not a refugee camp-1 had some sense of what to expect, but could not have imagined the horror that Guantanamo would become. I knew its history. The U.S. lease with Cuba was one of adhesion that gave the United States “complete jurisdiction and control” over the 45 square mile base. I knew that despite this control, the U.S. ligation would be difficult. The U.S. had argued and again would argue that no law applied to those imprisoned at Guantanamo and that no court had jurisdiction to decide otherwise. To the extent we could rely on the Haitian precedents, they had been vacated as part of a settlement. More importantly, a World War II era Supreme Court case arguably divested courts of jurisdiction over cases brought by aliens held “outside” the fifty states.

Access to our clients had been a major issue in the Haitian litigation. In that litigation, despite government resistance, a strong federal judge quickly gave us access to Guantanamo. This time access would take a lot longer. It was over two years until we finally won Rasul v. Bush1 in the Supreme Court. That case recognized statutory habeas rights for the Guantanamo prisoners and with those we gained the right of lawyers to meet with their clients. Until then our Guantanamo clients did not know of the litigation. We were not permitted to communicate with them; we represented members of their families as “next friends.”

Politically, the Haitian litigation had been difficult. It was not popular then and it would be unpopular today to bring HIV positive Haitian refugees into the United States. Lawyers who took on the cause were not heroes to most. But the unpopularity of that cause pales in comparison with the representation of those the Bush administration labeled as the “worst of the worst:” a claim that was demonstrated to be utterly unfounded, but still continues as part of the public discourse. Initially, and continuing until today, the lawyers were attacked for representing Guantanamo prisoners. They were skewered in the press, sometimes in their law firms and often by the government itself. One question that someday will be answered by historians is how these lawyers kept going. Many of them were from the biggest firms in the county whose other clients may not have been happy with this representation; others were from small firms or solo practitioners who gave up much of their regular work and income to take on the Guantanamo cases.

Into these difficult, some would say impossible cases, stepped over five hundred attorneys. It needs to be said and said for all to hear: these lawyers have written a heroic chapter in American legal history. In the midst of the so-called war on terror and in a country terrified of the next attack, these attorneys took on the most unpopular of causes. And the cases were not just unpopular. Client visitations were difficult, to put it mildly. Mistrust of American lawyers ran high. Lawyers were dealing with Guantanamo prisoners that were abused and tortured. The prison guards sowed dissatisfaction by telling prisoners they would never get out if they had lawyers or that Jewish lawyers should not be trusted. These problems only hint at the difficulties. The essays to follow give an important in depth look at these problems.

Lawyers, perhaps because of their training, understood early the abomination that was Guantanamo. We were all trained in understanding the Magna Carta and Habeas Corpus. The assertion, written into executive orders by the Bush administration, that a person could be imprisoned, held incommunicado, tortured and never challenge their detention was and remains anathema to these lawyers and to the very idea of human rights. The claim that a person’s legal rights could be determined at the whim of the Executive cuts against the fundamental underpinnings of a county claiming to adhere to law. Every human being has a status under law; that status is not dependent on the occupant of the oval office.

The struggle to close Guantanamo and treat its prisoners fairly and under law has been Sisyphean. Each victory has been followed by a congressional reaction that sought to undermine rights which we thought had been established. It took three trips to the Supreme Court and seven years to finally get the courts to recognize the constitutional right to Habeas Corpus. The lawyers have stayed with it and will until this off shore prison camp and hopefully others around the world are dismantled. We must not have any more Guantanamos.

1 542 U.S. 466 (2004).