By Dr. Ken Broda Bahm:
As our “tax day” approaches, most Americans are engaged in that annual rite of legal compliance. While there might be gray areas and even some cheating, by and large, we do what the law requires, even when it is inconvenient or painful. But just off our shores, there is a zone with an entirely different relationship to the rule of law. In the U.S. detention facility at Guantánamo Bay, Cuba, 122 are still held without normal recourse to the U.S. justice system and without many of the protections of international law. Without formal charges, and often without much in the way of legal checks and balances, these men are in legal limbo. Earlier this year, a window opened into that world with the publication of Guantánamo Diary, a book written by hand by a detainee named Mohamedou Slahi and edited by journalist, Larry Siems. The 466 page manuscript faced a six-year Freedom of Information Act battle to release, and after government review, it contains more than 2,500 black bar redactions, some covering full pages of text. What is left, however, provides a chilling portrait of officially-sanctioned abuse.
Mr. Slahi has been detained since 2001, and perhaps that reason alone should make us skeptical of the narrative. At the same time, there is a great deal in the story pointing to his reliability as a source, and even to his character. The editor’s lengthy introduction provides critical context, and based on years of study of Slahi’s case, Larry Siems concludes, “The story he tells is well corroborated by the declassified record; he proves again and again to be a reliable narrator. He certainly does not exaggerate.”
After reading the book, I believe it should be on the “to read” list for all Americans, and particularly those with an education, a role, and an affinity with the institutions that support the rule of law. The book is quite unique. The writing is insightful, at times sarcastic and even funny. In addition to providing us with a critical view into the circumstances of those who enjoy the least in the way of legal protection, the text also provides a searing account of what can happen when the institutions that are designed to protect liberty and human rights are consciously set aside in the name of security. More specifically, I think the book provides a few reminders about the law, and these reminders apply in every case, large and small.
The text is written in English, Mr. Slahi’s fourth language. A native Mauritanian, he won a scholarship to study in Germany, where he earned a degree in electrical engineering. He briefly lived in Canada before returning home. While no clear evidence points to our government’s specific reasons for detaining him, there are four strikes against him. First, he was briefly detained and then cleared by authorities in connection with the “Millennium Plot” (an attempt to move explosives over the U.S. – Canadian border in late 1999) based on some circumstantial associations with those convicted in the attempt. Second, his brother-in-law, Abu Hafs, was on Osama bin Laden’s Shura Council. (though the U.S. government now knows Hafs opposed those attacks, and Hafs himself is a free man). Third, he was at one point a member of al-Qaeda, but that was at a time when al-Qaeda was a de facto ally of the U.S. in Afghanistan’s war against the Soviets. Fourth, one of the planners of the 9/11 attacks, Ramzi bin al-Shibh, reported that Slahi told him where he could go to get training in Afghanistan prior al-Shibh going to fight in Chechnya (but, again, this was to fight against Russia, not against the U.S.).
While none of these circumstances serve as the basis for a clear indictment, the U.S. government seems to have applied a “Where there’s smoke, there’s fire” principle. In November 2001, Slahi voluntarily turned himself in at the request of Mauritanian police. From there, he was handed over to the the CIA, then sent to Jordan, then to Afghanistan, then ultimately to Guantánamo Bay. In the course of his detention, he describes beatings, stress positions, isolation, sleep deprivation, threats and intimidation, as well as sexual abuse: the “enhanced interrogation” techniques now confirmed by many other sources, and known by the more common name of torture. No charges have been drawn up against him, no military defense attorney was appointed in his case, and no publicly-available information clarifies why he was detained in the first place.
My own work in the world of civil litigators, of course, is on an entirely different legal plane. But as I read the book through the filter of that experience, I was reminded about a few principles that bridge that gap.
Humanity Matters
Any advocate’s first obligation is to humanize. In Slahi’s situation, that goal runs up against social tendencies in the opposite direction. What we condemn in terrorism is not just the destruction, but also the dehumanization: the idea that lives are just a means to an end. Even as reasonable people can disagree over the response to terrorism and the legal protections to be afforded to those suspected of it, we should be able to agree that we wouldn’t want to copy the mindset of those we fight. Even if one were to presume, against the available evidence, that Slahi is guilty of doing something that would justify continued detention, we would expect that detention — in our name and for our supposed benefit — to follow our laws and the broader principles of human rights. It doesn’t, and in that context, what is most remarkable about Slahi’s book is that he manages to humanize not only himself, but also his captors, guards, and interrogators. As Larry Siems writes in his introduction, “He tries to understand people, regardless of stations or uniforms or conditions, as protagonists in their own right. In doing so, he transforms even the most dehumanizing situations into a series of individual, and at times harrowingly intimate, human exchanges.” And Slahi adds, “I have tried to be as fair as possible, to the U.S. government, to my brothers, and to myself.“
Story Matters
What captures and keeps your attention when reading Guantánamo Diary is not the advocacy, but the story. Briefly taking the author’s perspective, we are able to enter the narrative and share in his questions: What is happening, and why, and what will happen next? The author’s point in documenting his experience is clearly to make his case, but it is also for the story to be heard. In the midst of his testimony to a 2005 Administrative Review Board, Slahi slipped in a brief plug for his book: “I just want to mention here that I wrote a book recently while in jail about my whole story okay? I sent it for release to the District [of] Columbia, and when it is released, I advise you guys to read it. A little advertisement. It is a very interesting book, I think,” also adding, “It really doesn’t matter if they release me or not, I just want my story understood.” Against the abstractions of a “War on Terror,” the detailed and disarming story of one individual helps to bring the compromises into shaper relief.
Rule of Law Matters
Mohamedou Slahi had been detained for nearly seven years before the Supreme Court ruled 5-4 in the case of Boumediene v. Bush, that those detained in Guantánamo Bay have a right to a habeas corpus petition challenging their detention. Slahi describes learning about this development:
“Later I learned from my great lawyers [redacted] that the magic formulation of my request is a Petition for Writ of Habeas Corpus. Obviously that phrase makes no sense to the average, mortal man like me. The average person would just say, ‘Why the hell are you locking me up?’ I’m not a lawyer, but common sense dictates that after three years of interrogating me and depriving me of my liberty, the government at least owes me an explanation why it’s doing so. What exactly is my crime?“
It is at least some measure of progress that Slahi’s petition (“I have done no crimes against the U.S., nor did the U.S. charge me with crimes, thus I am filing for my immediate release“) was heard by the U.S. District Court. It was actually granted five years ago, and Slahi was ordered released. Since that time, however, the DC Circuit Court of Appeals has sent the case back to District Court for a rehearing, and that case is still pending.
The continued existence of a legally questionable prison off of America’s shores is still weakening America’s image abroad, and serving as an ideal recruiting tool for jihadis. As Slahi notes, “The country is losing friends every day and doesn’t seem to give a damn about it.” Whether Americans support it or oppose it, there is an obligation on the public, particularly those who work in law, to at least understand it. The federal case working its way toward a rehearing offers another opportunity for the government to either justify the detention or to release Mr. Slahi. He concludes the book, handwritten in a single cell in Camp Echo:
“I don’t expect people who don’t know me to believe me, but I expect them, at least, to give me the benefit of the doubt. And if Americans are willing to stand for what they believe in, I also expect public opinion to compel the U.S. government to open a torture and war crimes investigation. I am more than confident that I can prove every single thing I have written in this book if I am ever given the opportunity to call witnesses in a proper judicial procedure, and if military personnel are not given the advantage of straightening their lies and destroying evidence against them.” He adds, “Everybody makes mistakes. I believe the U.S. government owes it to the American people to tell them the truth about what is happening in Guantánamo.“
______
Other Posts on the Ethics of Law:
- Remember Why You Went to Law School
- Don’t Advocate from a Position of Hate
- Avoid Condescension and Other Sins of Legal Argument: Know Your ‘Second Persona’
______
Image Credit: Screen shot of the original redacted manuscript produced by FOIA request.