Why I Said Yes To Guantanamo
I’m pretty sure I had never uttered the word “Guantanamo” before the summer of 2004. I had never even seen A Few Good Men, the movie famously set on the U.S. Navy’s base there. Guantanamo Bay Naval Base first crossed my mind in early 2002, when the U.S. began transferring suspected al-Qaida and Taliban members captured in the war in Afghanistan to the prison located there. I saw photographs of shackled men in orange jumpsuits being corralled into a makeshift prison. News reports said human rights organizations were concerned about how these men were being treated and whether the U.S. was holding them illegally. Defense Secretary Donald Rumsfeld said the men were responsible for September 11 and Guantanamo was the best place to hold and question them.
I didn’t give it much thought and wasn’t terribly concerned about these men. The country was at war, and capturing and holding prisoners of war has always been part of battle. And I happened to live in lower Manhattan, not far from the World Trade Center. September 11 had taken an emotional toll on me and my neighbors. To say the least, the well-being of men allegedly responsible for that tragedy was not front of mind.
Plus I was busy and not exactly a human rights lawyer. At that time—and for the last 15 years—I’ve been a corporate litigator in New York, defending payment card networks, investment advisors, private equity firms and other companies in large antitrust and securities lawsuits. I really enjoy what I do. I am lucky to have great clients. I get to work with smart people on complicated cases involving cutting-edge legal and economic issues. I love to read, write and speak in front of people, and one of my favorite challenges is to explain complicated issues in simple terms. In other words, I put the skills I developed as an English and history major in the College of Arts and Science to work every single day. The hours can be long and the work stressful, but I definitely found the right job for me.
I’ve also combined my paid legal work with pro bono service, which is hugely important to me. Since earning my law degree, I’ve never been without a pro bono case and have handled matters ranging from criminal appeals to First Amendment cases. I guess that is why, in July 2004, I got what I now refer to as the Guantanamo call. Life hasn’t been the same since.
On June 28, 2004, the U.S. Supreme Court decided Rasul v. Bush, holding that men imprisoned at the U.S. Naval base in Guantanamo Bay, Cuba, had a right under U.S. law to challenge their detention through a habeas corpus action in federal court. Habeas corpus—Latin for “you shall have the body”—is a legal tool dating back to at least the 12th century and enables a prisoner to petition for a writ commanding his jailer to deliver him to court and defend the legal and factual basis for his detention. If the jailer’s explanation is inadequate, the court must order the prisoner released. Habeas has always been part of U.S. law and is protected by the Constitution.
After the Rasul decision, my firm, along with many other large law firms in New York, D.C. and elsewhere, agreed to represent Guantanamo prisoners in their habeas challenges. The partner in charge of pro bono work at my firm called to ask if I would lend a hand. After some hesitation, I said yes. A few hours later, a file landed on my desk and I was anointed lead counsel to three French citizens who had been held in Guantanamo since early 2002.
All three are now home in France. I have since represented four more men—three Yemenis and one Libyan—with two cases still active today. After five and a half years, thousands of work hours, dozens of court filings, 15-plus visits to Guantanamo, a trip to Yemen, and upwards of 50 trips to D.C., I think “lending a hand” may have understated my assignment. But I don’t regret a minute of it. No other professional experience has been as challenging, and I’ve grown enormously as a person and lawyer because of it.
I’m often asked by friends and colleagues of all political stripes why I said yes when I got the Guantanamo call. Some assume that, as a confirmed Democrat, it must have been a shot at the Bush administration. But in all honesty, I wasn’t motivated by politics. In fact, I supported the decisions to enter both Afghanistan and Iraq. For me, it boiled down to first principles. In my view, this nation’s greatest gift to the world is its founding commitment to due process and the rule of law. Day to day, most of us take those principles for granted. We never doubt if we are arrested and put in prison, we can challenge that imprisonment before an impartial judge and jury. We will have our day in court.
But as I learned from studying the U.S. civil rights movement at Vanderbilt, due process, the rule of law and other constitutional principles are always at risk of erosion at the margin—when they are invoked by the poor, the disenfranchised or the despised. If those principles are compromised in the most controversial of cases, they are at risk of dilution for all of us.
For many reasons, the rule of law has been in serious jeopardy in Guantanamo. It’s now well known that not everyone detained at the base was a member of al-Qaida or the Taliban. The U.S. government has now admitted that errors were made, safeguards against mistaken detention were not implemented, and men who played no role in hostilities toward the U.S. ended up in Guantanamo. On the other hand, Khalid Sheikh Mohammed and others who have claimed credit for September 11 are also there. This is why we need a fair process—due process—to determine who has or has not been lawfully detained. This is when we most need lawyers—particularly at large, well-funded law firms—to step in to defend the rule of law in the most controversial of cases.
And this is why I said yes to Guantanamo.
photo credit: Peter Tobia/Philadelphia Inquirer/MCT; TIM CHAPMAN/MIAMI HERALD/MCT; Mark Wilson/Getty Images/MCT; Peter Tobia/Philadelphia Inquirer/MCT;