Ten years ago, the first men and boys were transferred from their home countries, from different parts of the world, to the prison camp in Guantanamo Bay, Cuba. They were called "enemy combatants," a word without legal meaning, to blur the lines between the established laws of war and the illegal designs of a government that sought to hold them in prison for the rest of their lives. The US government sought to establish Guantanamo as a "legal black hole," where the sanitizing light of due process and the rule of law would not penetrate. They proclaimed that the men and boys would be held indefinitely, until the end of the so-called global war on terror. Further, they said they every single person being held in "Gitmo," as the prison camp came to be known, was in fact, unequivocally a terrorist, the worst of the worst. It was into this cauldron of propaganda that the lawyers who became habeas counsel willingly entered. The Center for Constitutional Rights (CCR), historically a civil rights not-for-profit law firm, was the first to accept this challenge. CCR then began to seek the help of large law firms to represent the 700 or so men and boys who were imprisoned, none of whom had counsel and all of who the government said had no right to counsel. Lawyers from all fields of law, from firms large and small, and even solo practitioners like myself, entered our appearances on behalf of these men, and on behalf the fidelity of the rule of law. Some, perhaps many, of the prisoners were tortured in Gitmo. Many of the prisoners were turned over to US forces for a bounty that was being offered by the military. As a result, these men and boys were whisked away to a land hundreds of miles away, tortured, branded a terrorist, not because of any wrong doing, but because they happened to be in the wrong place at the wrong time, and someone turned them in for cool cash. This is an unnecessary and horrible price to pay.
Those of us who became habeas counsel fought on several fronts. Obviously, we fought on the legal front, bringing our cases through the districts courts, up to the US Supreme Court, where we won victories in Hamdan v. Rumsfeld and Boumediene v. Bush. Each victory was immediately weakened by acts of Congress, urged on by the Bush administration's assertion that every man and child being held in Gitmo was, again, the worst of the worst. We also had to fight in the court of public opinion, to convince the news media that the "worst of the worst" label applied, at most, to a small number of prisoners, and that even those men deserved to be judged by an impartial and fair tribunal. It was arduous work in all fronts. Yet we took each victory with measure, and each defeat and each propagandized official statement in stride.
For us, this representation is not just pro bono work, legal work that attorneys conduct free of cost. This representation is costly. Habeas counsel have had to spend large sums of their own money, flying to and from Gitmo, hiring interpreters, buying their own food and supplies, flying to and from Washington, DC for hearings and to review classified documents, all while maintaining their law practices. They have also had to pay with their reputations, when many people allied with the Bush administration called for the boycotting of law firms who were engaged in representing the so-called "worst of the worst" and were accused of engaging in "lawfare." Our patriotism was questioned, and many called us traitors. No, this litigation, for habeas counsel, has not been free.
But of course, this litigation is not about our sacrifices. It is about several more important things. Our clients have had their freedom sacrificed at the altar of war and the so-called global "war on terrorism" for over 10 years. Even those prisoners whom the government has admitted pose no threat to this nation have not been released. Those who have been released have never been compensated for their illegal imprisonment. Those who have been tortured, in violation of the US Constitution and the Geneva Conventions, can never be made whole again and no attempt by our government has been made to make them so. All the while, those who authorized this unjust regime go about their lives free: writing books, being appointed to faculty positions in colleges, or going on talk shows bragging that they would violate the trust of the people, the dictates of the Constitution and the mandates of international law, all over again if they could. The sacrifices of our clients clearly are not over and may never be over since the Obama administration and Congress continue to use their bodies as political fodder.
It is not just our clients who have made grave sacrifices. The American people have as well. Americans, who like to believe that we are just and ethical, have signed off on the illegal torture and the indefinite detention of these men and boys. We have debated on talk shows what is and what is not torture as opposed to forcefully condemning torture, almost torture and near torture, as being illegal and immoral. We continue to live under the Patriot Act, the material support statute and now the National Defense Authorization Act (NDAA). We have allowed ourselves to sink further and further into the abyss of tyranny and watched our Constitution be shredded and our civil liberties eroded right before our eyes. We have allowed all this to happen with no revolt, no mass uprising, no real protest. And now, under the NDAA, we all may be subject to being "indefinite detainees."
Guantanamo must be closed. The prisoners being held there must be given fair trials. The Authorization for Use of Military Force must be repealed. So must the material support statute and the Patriot Act, and the NDAA must be amended. Too much has been lost already.
I, as a former habeas counsel of prisoners of Guantanamo Bay, ask the world to remember them on this day and the remaining days of their imprisonment. I appeal to the conscience of the Congress and to the backbone of the President, to ensure that every single prisoner is afforded due process and released if they are found to be innocent. We cannot mark an eleventh or twelfth year of detainment and still call ourselves the leaders of the "free world." We cannot continue to deny these men basic due process and proclaim that we are a country of laws. We cannot re-fill the population of Gitmo and we cannot forget the equally notorious prison in Bagrahm where the bodies of Muslims and Arabs and still salute lady liberty. Gitmo is a porthole to the world of the lawlessness of the "war on terror" which, despite the fact that President Obama doesn't call it a "war on terror," he still prosecutes it as such.
Each of the habeas counsels, current and past, can tell stories of how our clients told us years ago that America would never give them a fair trial nor release them. They were right then. Now let us prove them wrong going forward. Ten years is too long. Although we have made some gains in the courts, the President and the Congress need to resolve to give these men justice. We give our own "worst of the worst" trials. We have an obligation to give these men no less.
Bryan Bullock is an employment discrimination and civil rights attorney and an Adjunct Professor at Indiana University Northwest. He was formerly habeas counsel to several Guantanamo Bay detainees.
Suggested citation: Bryan Bullock, Closing Guantanamo: The Need to End Indefinite Detention, JURIST - Sidebar, Jan. 11, 2011, http://jurist.org/sidebar/2012/01/bryan-bullock-guantanamo.php.
This article was prepared for publication by Sean Gallagher, an assistant editor for JURIST's professional commentary service. Please direct any questions or comments to him at firstname.lastname@example.org