No Comment, Six Questions — November 23, 2009, 11:07 am

The Guantánamo Lawyers: Six Questions for Mark Denbeaux and Jonathan Hafetz

Seton Hall Law Professor Mark Denbeaux and Jonathan Hafetz of the ACLU are two of the leading members of the “Guantánamo Bar Association”—the group of private and military lawyers who have managed the defense of the dwindling number of prisoners at Gitmo. They have brought out The Guantánamo Lawyers, a collection of over one hundred personal narratives by lawyers involved in this high-profile matter. I put six questions to them about the book and the status of the pending litigation over Gitmo.

1. On his second day in office, President Obama made a commitment to close Gitmo within a year. How does the Gitmo defense bar see his performance on that undertaking?


denbeaux: President Obama’s pronouncement on his second day in office that he would close Guantánamo within a year seemed to signal a new direction. It was an important and symbolic statement. Part of the symbolism came from the simplicity of the promise. Unfortunately, the simplicity was misplaced. The problems were not simple. The efforts were too slow and the steps too small because underlying issues were not addressed. There have been some positive steps towards restoring the rule of law, such as the ban on harsh interrogation methods and the recent decision to bring those accused of responsibility for the 9/11 attacks to trial in federal court. Also, some detainees have reported that treatment and conditions improved in modest ways almost immediately after President Obama took office. But his administration also has not broken with some failed and unconstitutional policies of the past. It has revived military commissions and decided to detain some prisoners without trial. The concern is that even if the Guantánamo prison is one day shut down, the Guantánamo system lives on.

2. Last Friday, Attorney General Eric Holder announced that a number of cases would be referred for trial in the federal court in Manhattan, while others would go forward before the military commission. Do you see a pattern here that will inform the rest of the cases? What do you make of his decision to continue with cases before the military commissions?


hafetz: Holder’s announcement that five individuals allegedly responsible for the 9/11 attacks, including Khaled Sheikh Mohammed, would be brought to trial in federal court takes an important—if long overdue—step towards restoring the rule of law. The decision is a show of faith in the U.S. criminal justice system, which has shown repeatedly that it can preserve fundamental constitutional rights while protecting legitimate national security concerns. At the same time, the administration’s decision to continue prosecuting terrorism suspects in military commissions is regrettable. Although the commissions have been significantly improved, they still suffer from various flaws, violate principles of equal protection under law by applying only to non-citizens, and lack the credibility and proven track record that federal courts have.

3. From the Holder announcement, it almost looks like cases go to the commissions because prosecutors don’t have evidence that would pass muster in a federal court. Is that right? Can you discern any rule that governs which cases go to the commissions versus which go to the federal courts?

Three weeks before I got to Guantánamo, Vice President Cheney said, “the people that are there are people we picked up on the battlefield, primarily in Afghanistan. They’re terrorists. They’re bomb makers. They’re facilitators of terror. They’re members of al Qaeda and the Taliban.” … On that day last July, I discovered what President Bush and his lawyers at the Justice Department had kept secret from the public, and even from the court: the military had concluded that Adel was innocent. Not a terrorist. Not an enemy soldier. Not a criminal. Never been on a battlefield. He’d been sold to U.S. forces from the soil of Pakistan, a nation with which we’d never been at war.
Vice President Cheney says that Adel and men like him were picked up on the battlefield, but according to a 2005 study conducted by Seton Hall School of Law, five percent were picked up on the battlefield. Ninety-five percent were not.

—From The Guantánamo Lawyers: Inside a Prison Outside the Law
Reprinted by permission of the publisher, New York University Press. Copyright © 2009 New York University

hafetz: The administration has failed to provide a coherent explanation of why one prisoner gets full due process in a civilian criminal trial while another receives due process lite in a jerry-rigged military commission. The absence of any clear or valid principle behind this sorting process suggests a troubling arbitrariness. It gives rise to the possibility that the U.S. government will simply deviate from trying terrorism cases in federal courts where it lacks the evidence to convict or faces other legal obstacles. And even if this were not the reason (or the only reason) for using military commissions, it will inevitably be the perception of America’s two-tiered system of justice. This type of forum-shopping undermines the integrity of both our civilian and military justice systems.

4. Your book contains some surprising nuggets. The chapter “Karma Sutra” recounts one lawyer’s unusual way of winning his client’s confidence.

denbeaux: The goal of the book was to provide an inside account of Guantánamo, the detainees, and the struggle for justice. Our fear was that many of these stories would be lost if they were not captured, and the truth about Guantánamo might be lost to history. With the detainees effectively silenced by the U.S. government for so many years, it fell to their lawyers to speak out. In the book, the lawyers bear witness, as primary observers, to the dehumanization, the arbitrariness, and the despair that lies behind Guantánamo. The book also contains, however, some moments of humor and of hope.

“Karma Sutra” reveals the unusual lengths that lawyers had to be willing to go to in order to develop attorney-client relationships with their detainee-clients. All had to overcome unprecedented barriers, and sometimes they went to great lengths to do so. In the “Karma Sutra” entry, the lawyer was being tested by the client to see if the lawyer would share personal information. In particular, the client appeared to be asking the lawyer (who is 65) about his sexual relations with his wife (who is 64). The interpreter translated the question for the lawyer and suggested this was one he might not wish to answer. But the lawyer felt it important to give an answer: the client did not generally want to talk to him, and he was unwilling to forgo any opportunity to create a bond. So, he responded giving the client some insight into a matter of the heart. The translator then remarked that it was “karma” that a guard happened to come by at that moment, halting any further questioning for the moment.
Personal issues are an odd idea in a prison where none of the detainees can even go to the bathroom in private. Not all lawyers were tested in the way that this lawyer was tested, but all lawyers had to demonstrate that they were capable of being open and offering personal contact. At all other times, the detainees’ personal contacts were limited to answering questions from interrogators who shared nothing of any sort, personal or otherwise. The translator’s sweet and somewhat prudish reaction tells a great deal. The readers can only imagine how “Karma Sutra” was received by the spouse of the lawyer once the book was published!

5. During the Bush years, it seems that defense lawyers were repeatedly subjected to “dirty tricks” played by political hacks in the administration—snooping on them, seizing their notes and papers, attempting to build distrust between the lawyers and their clients, and even trying to get clients to abandon them. To what extent has this continued after Bush left office?

denbeaux: The effort by officials during the Bush Administration to harass lawyers is one of the uglier chapters in Guantánamo’s history. The bottom line is, the Bush Administration believed that lawyers, courts, and law itself had no place at Guantánamo, and that the president must have unfettered discretion in his detention and treatment of prisoners. This belief was manifested in the administration’s relentless opposition to habeas corpus and its effort to maintain Guantánamo as a prison beyond the law. Once the Supreme Court first recognized that Guantánamo detainees had habeas corpus rights in its 2004 decision in Rasul v. Bush, and lawyers began traveling to the base to meet with clients, the harassment began. In many ways, the administration’s opposition to lawyers and judicial process was eerily reminiscent of the “massive resistance” by the South during the civil rights movement. This time, however, the federal government—including both the president and Congress, which later sought to eliminate habeas rights—was on the wrong side of history. Fortunately, this harassment gradually abated over time and has not continued at Guantánamo during the new administration.

6. The Obama Administration’s inter-agency task force is looking at policy for new detention centers in Afghanistan, including Bagram, which has been associated with abuses as serious as those at Gitmo and Abu Ghraib. Will Bagram be the new Gitmo?


hafetz: The section of the book, “Guantánamo beyond Cuba” is an important part of the larger story because it shows how even after Guantánamo closes, “Guantánamos” never end. The U.S. detention center at Bagram Air Force Base in Afghanistan is a good example. While the new administration has taken important steps towards improving detention operations at Bagram, it still has a way to go. The Obama Administration is arguing, for example, that individuals held at Bagram have no right of access to federal courts through habeas corpus. Notably, this argument extends even to individuals seized outside Afghanistan, in places as distant as Thailand and the United Arab Emirates, and then brought to Bagram for detention. Previously, such individuals might have been taken to Guantánamo; now they are brought to Bagram. It is troubling that the new administration has not broken with the idea of maintaining a space for extrajudicial detention in global counter-terrorism operations. In addition, the administration is refusing to provide even basic information about Bagram, including the number of prisoners and basic facts surrounding their detention. Such secrecy undermines accountability and the protection of human rights.

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The End of Eden

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How to Start a Nuclear War

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There Will Always Be Fires

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Combustion Engines·

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On any given day last summer, the smoke-choked skies over Missoula, Montana, swarmed with an average of twenty-eight helicopters and eighteen fixed-wing craft, a blitz waged against Lolo Peak, Rice Ridge, and ninety-six other wildfires in the Lolo National Forest. On the ground, forty or fifty twenty-person handcrews were deployed, alongside hundreds of fire engines and bulldozers. In the battle against Rice Ridge alone, the Air Force, handcrews, loggers, dozers, parachutists, flacks, forecasters, and cooks amounted to some nine hundred people.

Rice Ridge was what is known as a mega-fire, a recently coined term for blazes that cover more than 100,000 acres. The West has always known forest fires, of course, but for much of the past century, they rarely got any bigger than 10,000 acres. No more. In 1988, a 250,000-acre anomaly, Canyon Creek, burned for months, roaring across a forty-mile stretch of Montana’s Bob Marshall Wilderness in a single night. A few decades on, that anomaly is becoming the norm. Rice Ridge, for its part, swept through 160,000 acres.

At this scale, the firefighting operation is run by an incident management team, a group of about thirty specialists drawn from a mix of state and federal agencies and trained in fields ranging from aviation to weather forecasting and accounting to public information. The management teams are ranked according to experience and ability, from type 3 (the least skilled) to type 1 (the most). The fiercest fires are assigned to type 1s. Teams take the name of their incident commander, the field general, and some of those names become recognizable, even illustrious, in the wildfire-fighting community. One such name is that of Greg Poncin, who is to fire commanders what Wyatt Earp was to federal marshals.

Smoke from the Lolo Peak fire (detail) © Laura Verhaeghe
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The pinhal interior, a wooded region of hills and narrow hollows in rural central Portugal, used to be farmland. Well into the latter half of the past century, the fields were worked by peasants from the old stone villages. Portugal was poor and isolated, and the pinhal interior particularly so; when they could, the peasants left. There is electricity and running water now, but most of the people have gone. The fields have been taken over by trees. Each year the forest encroaches farther, and each year the villages grow more lonely. There are remnants of the earlier life, though, and amid the trees the holdouts of the older generations still work a few small fields. The pinhal interior cannot yet be called wilderness, then, and that, in large part, is why it burns.

Thousands of fires burn in the region each summer, almost all of them started not by lightning or some other natural spark but by the remaining Portuguese. (The great majority of the blazes are started unintentionally, though not all.) The pinhal interior—the name means “interior pine forest,” though today there is at least as much eucalyptus as pine—stretches along a sort of climate border between the semiarid Iberian interior and the wet influence of the Atlantic; vegetation grows exceptionally well there, and in the summers fire conditions are ideal. Still, most of the burns are quickly contained, and although they have grown larger in recent years, residents have learned to pay them little mind. The creeping fire that began in the dry duff and twigs of an oak grove on June 17 of last year, in the district of Pe­drógão Grande, therefore occasioned no panic.

A local woman, Dora da Silva Co­sta, drove past the blaze in the midafternoon, by which time it had entered a stand of pines. Firefighters were on hand. “There were no people in the streets,” Costa told me. “It was just another fire.” She continued on her way. It was a Saturday, and she had brought her two young sons to visit their older cousin in Vila Facaia, the village of small farms in which she’d been raised.

Firefighters near Pedrógão Grande (detail) © Pablo Blazquez Dominguez/Getty Images
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On a blistering morning in July 2017, Ghazi Luaibi rose before dawn and set out in a worn black sedan from his home in Zubair, a town of concrete low-rises in southern Iraq. He drove for a while along sandy roads strewn with plastic bags. On the horizon, he could see gas flares from the oil refineries, pillars of amber flame rising into the sky. As he approached Basra, the largest city in the province, desert scrub gave way to empty apartment blocks and rows of withered palms. Though the sun had barely risen, the temperature was already nearing 100 degrees Fahrenheit. The previous year, Basra had registered one of the highest temperatures ever reliably recorded on earth: about 129 degrees, hot enough to cause birds to drop from the sky.

Ghazi, a sixty-two-year-old with stooped shoulders, an ash-gray beard, and lively brown eyes, would have preferred to stay home and wait out the heat. But he hadn’t had much of a choice. He was the president of the local council of Mandaeans, members of a gnostic religion that appeared in Mesopotamia in the early centuries ad. Today marked the beginning of their new year, and Ghazi, who was born into the Mandaean priestly class, was responsible for making sure everything went smoothly: he needed to find a tent to shield worshippers from the sun and, most importantly, a location near flowing water where they could carry out the ceremony.

Mandaean holidays are celebrated with a mass baptism, a ritual that is deeply rooted in their scripture and theology. Mandaeans follow the teachings of Yahia Yuhana, known to Christians as John the Baptist. Water is central to their religion. They believe that all life originates in the World of Light, a spiritual realm that is the starting point for a great river known as Yardana, or Jordan. Outside the World of Light lie the lifeless, stagnant waters of the World of Darkness. According to one version of the Mandaean creation myth, a demiurge named Ptahil set out to shape a new world from the World of Darkness, which became the material world we inhabit today. Once the world was complete, Ptahil sculpted Adam, the first man, from the same dark waters as the earth, but his soul came from the World of Light. In Mandaean scripture, rivers are manifestations of the World of Light, coursing from the heavenly Jordan to the earth to purify it. To be baptized is to be immersed in this divine realm.

Basra General Hospital (detail) July 2017 © Alex Potter
How to Start a Nuclear War·

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Serving as a US Air Force launch control officer for intercontinental missiles in the early Seventies, First Lieutenant Bruce Blair figured out how to start a nuclear war and kill a few hundred million people. His unit, stationed in the vast missile fields at Malmstrom Air Force Base, in Montana, oversaw one of four squadrons of Minuteman II ­ICBMs, each missile topped by a W56 thermonuclear warhead with an explosive force of 1.2 megatons—eighty times that of the bomb that destroyed Hiroshima. In theory, the missiles could be fired only by order of the president of the United States, and required mutual cooperation by the two men on duty in each of the launch control centers, of which there were five for each squadron.

In fact, as Blair recounted to me recently, the system could be bypassed with remarkable ease. Safeguards made it difficult, though not impossible, for a two-man crew (of either captains or lieutenants, some straight out of college) in a single launch control center to fire a missile. But, said Blair, “it took only a small conspiracy”—of two people in two separate control centers—to launch the entire squadron of fifty missiles, “sixty megatons targeted at the Soviet Union, China, and North Korea.” (The scheme would first necessitate the “disabling” of the conspirators’ silo crewmates, unless, of course, they, too, were complicit in the operation.) Working in conjunction, the plotters could “jury-rig the system” to send a “vote” by turning keys in their separate launch centers. The three other launch centers might see what was happening, but they would not be able to override the two votes, and the missiles would begin their firing sequence. Even more alarmingly, Blair discovered that if one of the plotters was posted at the particular launch control center in overall command of the squadron, they could together format and transmit a “valid and authentic launch order” for general nuclear war that would immediately launch the entire US strategic nuclear missile force, including a thousand Minuteman and fifty-four Titan missiles, without the possibility of recall. As he put it, “that would get everyone’s attention, for sure.” A more pacifically inclined conspiracy, on the other hand, could effectively disarm the strategic force by formatting and transmitting messages invalidating the presidential launch codes.

When he quit the Air Force in 1974, Blair was haunted by the power that had been within his grasp, andhe resolved to do something about it. But when he started lobbying his former superiors, he was met with indifference and even active hostility. “I got in a fair scrap with the Air Force over it,” he recalled. As Blair well knew, there was supposed to be a system already in place to prevent that type of unilateral launch. The civilian leadership in the Pentagon took comfort in this, not knowing that the Strategic Air Command, which then controlled the Air Force’s nuclear weapons, had quietly neutralized it.

This reluctance to implement an obviously desirable precaution might seem extraordinary, but it is explicable in light of the dominant theme in the military’s nuclear weapons culture: the strategy known as “launch under attack.” Theoretically, the president has the option of waiting through an attack before deciding how to respond. But in practice, the system of command and control has been organized so as to leave a president facing reports of incoming missiles with little option but to launch. In the words of Lee Butler, who commanded all US nuclear forces at the end of the Cold War, the system the military designed was “structured to drive the president invariably toward a decision to launch under attack” if he or she believes there is “incontrovertible proof that warheads actually are on the way.” Ensuring that all missiles and bombers would be en route before any enemy missiles actually landed meant that most of the targets in the strategic nuclear war plan would be destroyed—thereby justifying the purchase and deployment of the massive force required to execute such a strike.

Among students of nuclear command and control, this practice of precluding all options but the desired one is known as “jamming” the president. Blair’s irksome protests threatened to slow this process. When his pleas drew rejection from inside the system, he turned to Congress. Eventually the Air Force agreed to begin using “unlock codes”—codes transmitted at the time of the launch order by higher authority without which the crews could not fire—on the weapons in 1977. (Even then, the Navy held off safeguarding its submarine-launched nuclear missiles in this way for another twenty years.)

Following this small victory, Blair continued to probe the baroque architecture of nuclear command and control, and its extreme vulnerability to lethal mishap. In the early Eighties, while working with a top-secret clearance for the Office of Technology Assessment, he prepared a detailed report on such shortcomings. The Pentagon promptly classified it as SIOP-ESI—a level higher than top secret. (SIOP stands for Single Integrated Operational Plan, the US plan for conducting a nuclear war. ESI stands for Extremely Sensitive Information.) Hidden away in the Pentagon, the report was withheld from both relevant senior civilian officials and the very congressional committees that had commissioned it in the first place.

From positions in Washington’s national security think tanks, including the Brookings Institution, Blair used his expertise and scholarly approach to gain access to knowledgeable insiders at the highest ranks, even in Moscow. On visits to the Russian capital during the halcyon years between the Cold War’s end and the renewal of tensions in the twenty-first century, he learned that the Soviet Union had actually developed a “dead hand” in ultimate control of their strategic nuclear arsenal. If sensors detected signs of an enemy nuclear attack, the USSR’s entire missile force would immediately launch with a minimum of human intervention—in effect, the doomsday weapon that ends the world in Dr. Strangelove.

Needless to say, this was a tightly held arrangement, known only to a select few in Moscow. Similarly chilling secrets, Blair continued to learn, lurked in the bowels of the US system, often unknown to the civilian leadership that supposedly directed it. In 1998, for example, on a visit to the headquarters of Strategic Command (­STRATCOM), the force controlling all US strategic nuclear weapons, at Offutt Air Force Base, near Omaha, Nebraska, he discovered that the ­­­STRATCOM targeting staff had unilaterally chosen to interpret a presidential order on nuclear targeting in such a way as to reinsert China into the ­SIOP, from which it had been removed in 1982, thereby provisionally consigning a billion Chinese to nuclear immolation. Shortly thereafter, he informed a senior White House official, whose reaction Blair recalled as “surprised” and “befuddled.”

In 2006, Blair founded Global Zero, an organization dedicated to ridding the world of nuclear weapons, with an immediate goal of ending the policy of launch under attack. By that time, the Cold War that had generated the ­SIOP and all those nuclear weapons had long since come to an end. As a result, part of the nuclear war machine had been dismantled—warhead numbers were reduced, bombers taken off alert, weapons withdrawn from Europe. But at its heart, the system continued unchanged, officially ever alert and smooth running, poised to dispatch hundreds of precisely targeted weapons, but only on receipt of an order from the commander in chief.

Bombhead, by Bruce Conner (detail) © Conner Family Trust, San Francisco, and ARS, New York City. Courtesy Kohn Gallery, Los Angeles

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