No Comment — May 26, 2010, 10:23 am

Silencing the Lawyers

A total of 779 prisoners have been held in Guantánamo in connection with the war on terror. Five hundred seventy-nine were released, most by the Bush Administration, a quiet recognition of errors made in the decisions to detain them. A large number of those still detained are contesting their imprisonment through habeas corpus—under which the government must make a minimal showing that it has a reasonable basis for holding the prisoner. In roughly three-quarters of these cases so far (36 out of 50 decided), which are being heard before largely Republican-appointed, conservative federal judges in Washington, the court has found that the United States has no reason to hold the prisoner. That’s not surprising. In fact, we now know that 80 percent or more of the Guantánamo prisoners were captured not by American forces on or near a battlefield but rather by Afghan warlords and Pakistani security forces eager to collect reward money the United States was offering. So Ahmed the taxi driver and Mohammed the shepherd were whisked off to Gitmo.

What happened to the 600–800 Al Qaeda and Taliban leaders for whom the prison was originally conceived? We now have a pretty good idea. In the late fall of 2001, military operations in Afghanistan were successful, and Taliban and Al Qaeda leadership figures had fled to two last redoubts—the city of Kunduz in the northeast, and the Tora Bora region along the Pakistani frontier. But for reasons known only to him, Vice President Dick Cheney ordered a halt to the bombardment of Kunduz and opened an air corridor to allow the Pakistani military to airlift the Al Qaeda and Taliban leaders out of Kunduz. The maneuver was ridiculed by one U.S. military official present at the time as “Operation Evil Airlift.” The United States quickly moved to fill Gitmo with nobodies. With that fact now becoming painfully apparent, you’d think that Congress would be calling for an investigation into how original plans for Gitmo were botched—specifically how the Al Qaeda and Taliban figures for whom it was built evaded capture in the face of one of the most powerful military forces ever fielded in Afghanistan. That could well be one of the most significant “lessons learned” of the war.

Instead, influential Republicans in Congress are crying out for an investigation of the lawyers. Florida Republican Jeff Miller has secured a provision in the current defense appropriations act (PDF) requiring that the Defense Department’s inspector general “conduct an investigation of the conduct and practices of lawyers” who represent clients at Guantánamo if there is some reason to believe that they “interfered with the operations” at Gitmo or “violated any applicable policy of the Department.” Of course, as Steven Vladeck has explained, in the thinking of the Bush era, prisoners were to be held at Gitmo without access to attorneys or the ability to make legal arguments, so everything that the defense counsel did amounted to “interference with the operations”–starting with securing a series of Supreme Court decisions holding that those operations were illegal.

Miller explained the need for this provision in a blog post for the Heritage Foundation. As he makes clear, his purpose is entirely retaliatory:

Last year the American Civil Liberties Union (ACLU) and the National Association of Criminal Defense Lawyers (NACDL) established the John Adams Project to “support military counsel at Guantanamo Bay.” The mission behind this treacherous enterprise was to identify intelligence officers involved in interrogating Guantanamo Bay detainees and then provide that information to military defense attorneys representing the detainees so that they could attempt to call intelligence personnel to testify. Unfortunately, it appears that their efforts may have been successful, when last year photographs of intelligence personnel were found in the cells of detainees. News reports indicate that American citizens hired private investigators to surreptitiously photograph intelligence personnel and provide them to enemies of this nation. If true, the disgraceful actions by the individuals involved in the John Adams Project have created a severe security risk for our intelligence community and, ultimately, the American people. Any attempt to identify and expose to potential harm our Nation’s fine intelligence and military officers who serve as our first line of defense is deceitful, shameful, and illegal.

Let’s decode Miller’s histrionics here. It’s about torture. One of the key issues in many of the habeas cases, as well as in the forthcoming military commissions proceedings, is whether statements elicited from prisoners should be excluded because they were secured through the use of coercion—in the most serious cases, through the use of torture. In fact, the prior convening authority, Dick Cheney protégée Susan J. Crawford, concluded that at least one such statement was secured by torture, judges in several of the habeas cases have concluded that impermissible coercion was used, and in one of the military commission proceedings—involving child soldier Omar Khadr—one of his own interrogators testified, against his own interests and considerable government pressure, that he believes that Khadr was tortured. In order to make their case, the defense counsel need to establish if there were written or audiovisual records made of the interrogation sessions. They also have to identify all the potential witnesses and attempt to find out what the witnesses said or didn’t say. They are having a difficult time in this process because the government is not cooperating with them. Moreover, clear evidence–like the videotapes of interrogation sessions–keeps mysteriously disappearing.

Of course, the government can control whether the supposed statements are an issue. It can decide not to rely on them. It also has the power to insist that certain kinds of evidence are classified and can only he heard by the court under restricted circumstances. But the government does not have the right to use the statements against the prisoners and then block any inquiry into how they were secured and who was involved in the process, because that would turn the proceedings into a travesty. Secret evidence of that very sort was regularly used in the Tudor- and Stuart-era Court of Star Chamber, and the Founding Fathers appropriately forbade it—largely because the evidence was usually dishonest and unreliable. The prohibition on secret evidence was made absolute in the seventeenth century. It is “a fundamental common law principle,” as the Court of Appeal ruled just a few weeks ago in rejecting an effort to deny defendants access to evidence of torture in the hands of government interrogators.

The defense counsel working at Guantánamo have been subjected to a barrage of officially sponsored indignities. They have been tarred with ethnic slurs and accusations of homosexuality, accused of undermining national security, subjected to continual petty harassment. They have also had their livelihoods threatened through appeals to their paying clients. These events have been reported as separate incidents in the press, but this conduct results from a carefully orchestrated Bush Administration policy that goes under the rubric of “lawfare.” With the Bush Administration out of power, these efforts have been taken up by former Vice President Dick Cheney, his daughter, and a collection of Republican hacks. There’s nothing remotely “disgraceful” about the efforts of defense counsel to identify witnesses and collect evidence, and to prove torture if indeed torture was used. That’s the essence of justice. Congressman Miller is afraid that the truth of what happened to these prisoners will be fully exposed and that they may be proven innocent. He therefore instinctively wants to silence the lawyers who are putting the lie to his claims. But overcoming the legacy of Guantánamo has to start with learning the truth about what happened there. That may indeed be a painful experience for Miller and his colleagues, but their efforts to interfere with justice will only make the process longer and more painful.

Share
Single Page

More from Scott Horton:

Conversation August 5, 2016, 12:08 pm

Lincoln’s Party

Sidney Blumenthal on the origins of the Republican Party, the fallout from Clinton’s emails, and his new biography of Abraham Lincoln

Conversation March 30, 2016, 3:44 pm

Burn Pits

Joseph Hickman discusses his new book, The Burn Pits, which tells the story of thousands of U.S. soldiers who, after returning from Iraq and Afghanistan, have developed rare cancers and respiratory diseases.

Context, No Comment August 28, 2015, 12:16 pm

Beltway Secrecy

In five easy lessons

Get access to 167 years of
Harper’s for only $45.99

United States Canada

CATEGORIES

THE CURRENT ISSUE

February 2018

The Bodies in The Forest

= Subscribers only.
Sign in here.
Subscribe here.

The Minds of Others

= Subscribers only.
Sign in here.
Subscribe here.

Modern Despots

= Subscribers only.
Sign in here.
Subscribe here.

Before the Deluge

= Subscribers only.
Sign in here.
Subscribe here.

Notes to Self

= Subscribers only.
Sign in here.
Subscribe here.

Within Reach

= Subscribers only.
Sign in here.
Subscribe here.

view Table Content

FEATURED ON HARPERS.ORG

Article
The Minds of Others·

= Subscribers only.
Sign in here.
Subscribe here.

Progress is impossible without change,” George Bernard Shaw wrote in 1944, “and those who cannot change their minds cannot change anything.” But progress through persuasion has never seemed harder to achieve. Political segregation has made many Americans inaccessible, even unimaginable, to those on the other side of the partisan divide. On the rare occasions when we do come face-to-face, it is not clear what we could say to change each other’s minds or reach a worthwhile compromise. Psychological research has shown that humans often fail to process facts that conflict with our preexisting worldviews. The stakes are simply too high: our self-worth and identity are entangled with our beliefs — and with those who share them. The weakness of logic as a tool of persuasion, combined with the urgency of the political moment, can be paralyzing.

Yet we know that people do change their minds. We are constantly molded by our environment and our culture, by the events of the world, by the gossip we hear and the books we read. In the essays that follow, seven writers explore the ways that persuasion operates in our lives, from the intimate to the far-reaching. Some consider the ethics and mechanics of persuasion itself — in religion, politics, and foreign policy — and others turn their attention to the channels through which it acts, such as music, protest, and technology. How, they ask, can we persuade others to join our cause or see things the way we do? And when it comes to our own openness to change, how do we decide when to compromise and when to resist?

Illustration (detail) by Lincoln Agnew
Article
Within Reach·

= Subscribers only.
Sign in here.
Subscribe here.

On a balmy day last spring, Connor Chase sat on a red couch in the waiting room of a medical clinic in Columbus, Ohio, and watched the traffic on the street. His bleached-blond hair fell into his eyes as he scrolled through his phone to distract himself. Waiting to see Mimi Rivard, a nurse practitioner, was making Chase nervous: it would be the first time he would tell a medical professional that he was transgender.

By the time he arrived at the Equitas Health clinic, Chase was eighteen, and had long since come to dread doctors and hospitals. As a child, he’d had asthma, migraines, two surgeries for a tumor that had caused deafness in one ear, and gangrene from an infected bug bite. Doctors had always assumed he was a girl. After puberty, Chase said, he avoided looking in the mirror because his chest and hips “didn’t feel like my body.” He liked it when strangers saw him as male, but his voice was high-pitched, so he rarely spoke in public. Then, when Chase was fourteen, he watched a video on YouTube in which a twentysomething trans man described taking testosterone to lower his voice and appear more masculine. Suddenly, Chase had an explanation for how he felt — and what he wanted.

Illustration by Taylor Callery
Article
Before the Deluge·

= Subscribers only.
Sign in here.
Subscribe here.

In the summer of 2016, when Congress installed a financial control board to address Puerto Rico’s crippling debt, I traveled to San Juan, the capital. The island owed some $120 billion, and Wall Street was demanding action. On the news, President Obama announced his appointments to the Junta de Supervisión y Administración Financiera. “The task ahead for Puerto Rico is not an easy one,” he said. “But I am confident Puerto Rico is up to the challenge of stabilizing the fiscal situation, restoring growth, and building a better future for all Puerto Ricans.” Among locals, however, the control board was widely viewed as a transparent effort to satisfy mainland creditors — just the latest tool of colonialist plundering that went back generations.

Photograph from Puerto Rico by Christopher Gregory
Article
Monumental Error·

= Subscribers only.
Sign in here.
Subscribe here.

In 1899, the art critic Layton Crippen complained in the New York Times that private donors and committees had been permitted to run amok, erecting all across the city a large number of “painfully ugly monuments.” The very worst statues had been dumped in Central Park. “The sculptures go as far toward spoiling the Park as it is possible to spoil it,” he wrote. Even worse, he lamented, no organization had “power of removal” to correct the damage that was being done.

Illustration by Steve Brodner
Post
CamperForce·

= Subscribers only.
Sign in here.
Subscribe here.

After losing their savings in the stock market crash of 2008, seniors Barb and Chuck find seasonal employment at Amazon fulfillment centers.

Amount Arizona’s Red Feather Lodge offered to pay to reopen the Grand Canyon during the 2013 government shutdown:

$25,000

A Brazilian cat gave birth to a dog.

Trump’s former chief strategist, whom Trump said had “lost his mind,” issued a statement saying that Trump’s son did not commit treason; the US ambassador to the United Nations announced that “no one questions” Trump’s mental stability; and the director of the CIA said that Trump, who requested “killer graphics” in his intelligence briefings, is able to read.

Subscribe to the Weekly Review newsletter. Don’t worry, we won’t sell your email address!

HARPER’S FINEST

Report — From the June 2013 issue

How to Make Your Own AR-15

= Subscribers only.
Sign in here.
Subscribe here.

By

"Gun owners have long been the hypochondriacs of American politics. Over the past twenty years, the gun-rights movement has won just about every battle it has fought; states have passed at least a hundred laws loosening gun restrictions since President Obama took office. Yet the National Rifle Association has continued to insist that government confiscation of privately owned firearms is nigh. The NRA’s alarmism helped maintain an active membership, but the strategy was risky: sooner or later, gun guys might have realized that they’d been had. Then came the shootings at a movie theater in Aurora, Colorado, and at Sandy Hook Elementary School in Newtown, Connecticut, followed swiftly by the nightmare the NRA had been promising for decades: a dedicated push at every level of government for new gun laws. The gun-rights movement was now that most insufferable of species: a hypochondriac taken suddenly, seriously ill."

Subscribe Today