Susan Herman, president of the American Civil Liberties Union, is the author of a recent article in the online edition of the Harvard Law & Policy Review.
When Liz Cheney released an ad charging that attorneys who had defended terrorism suspects were not fit to work in the Department of Justice, individual lawyers and the organized bar reacted with across-the-board outrage. Some, like former Attorney General Michael Mukasey, took the occasion to argue that the same protection and understanding is due the government lawyers who wrote the memos condoning torture by American agents, because the attacks on the lawyers are "all of a piece."
In my essay, The Limits of Advocacy: Lawyers for Terrorists/Lawyers for Torturers, I discuss why the role of the defense attorney and the multi-faceted role of the government lawyer are not equivalent. I also discuss the reasons why we have developed clarity about the role of defense attorneys since the dark days following 9/11: the military lawyers who led the way, the organized bar gradually stepping up to the task of defending the Guantánamo detainees, and the Supreme Court deciding a series of cases making a strong statement about the essentiality of the rule of law and lawyers, even at Guantánamo.
By way of contrast, we have little clarity about our shameful brush with torture - partly because the courts have found a dazzling array of procedural excuses for refusing to hear cases about torture and extraordinary rendition, depriving the victims of their day in court. There is a great deal we do not know about what happened and who was responsible, but there are now few voices calling for accountability. President Obama urges us to just turn the page. I argue that it is a mistake to go forward without first looking back, suggesting that the model of a truth commission might be useful to us.
The survivors of two Guantanamo detainees who died in U.S. military custody had their hopes of assigning civil liability dashed yesterday. The families of Yasser Al-Zahrani and Salah Ali Abdullah Ahmed Al-Salami saw their suit dismissed by a district court judge who relied on the Military Commissions Act of 2006 in her order.
The deaths, which were deemed "suicides" by the military, drew closer scrutiny after a Seton Hall study was released suggesting several reasons for suspicion. After attorney and ACS participant Scott Horton discussed the deaths on MSNBC, four soldiers who had been stationed at Guantanamo came forward and shed further light on what happened that night.
According to the Associated Press, the families of the deceased sought damages "under the Alien Tort Claims Act, alleging arbitrary detention, torture, cruel and inhuman treatment, violations of the Geneva Conventions, and cruel and unusual punishment." The judge dismissed these claims, deferring to the military's position that the detainees were enemy combatants rather than prisoners of war.
This determination "runs contrary to the evidence," Horton wrote today.
By Maj. (Ret.) Eric Montalvo, Esq., Senior Litigation Counsel at Tully Rinckey PLLC in Washington, D.C. and former Marine Corps Judge Advocate (JAG). Eric currently specializes in national security law, military criminal law, and military administrative law. He is noteworthy for his work in securing the release of Mohammad Jawad, one of the youngest Guantanamo Bay detainees.
On January 20, 2009 the world changed for a moment. President Barack Obama was sworn in as the 44th President of the United States. He became the first African American to hold this office and one of his first acts as President was to publish the now infamous "transparency memo" on January 21, 2009. This memo highlighted three key policy objectives: 1) government should be transparent; 2) government should be participatory; and 3) government should be collaborative.
This promise of transparency is at best illusive. On January 22, 2010, almost one year to the date that this memo was published, the Obama administration announced that it would be implementing a policy of indefinite detention for 50 or so Guantanamo Bay detainees. The President has decided to travel upon this path in part to "cover up" our use of "harsh interrogation techniques" and intelligence gathering procedures. In theory, the evidence obtained through these techniques cannot be used to successfully sustain a conviction.
If the techniques are that egregious, the President should grant immunity to those who engaged in such conduct so that closure can be obtained and this sad chapter in American history can be closed. Disclosure of the torture techniques that are purportedly no longer sanctioned can cause no harm. If the concern is incitement of the enemy, then the government can pursue National Security Courts or remit the persons to others jurisdictions to be investigated for their alleged war crimes and/or civil crimes.
One Woman’s Odyssey and Her Crusade for Human Rights
Kristine A. Huskey
By Kristine A. Huskey, Attorney and Clinical Professor, National Security Clinic, University of Texas School of Law
"Justice delayed is justice denied" would become our great battle cry in the advocacy efforts on behalf of our clients detained at Guantánamo. We would hum it like a mantra in court hearings, before Congress, in closed meetings with government officials, and to the public in attempt to obtain for the detainees the right to habeas corpus -- the right to challenge their detention. Eight years and counting, and our cry for justice continues for the men still imprisoned at Guantánamo. Despite the Supreme Court's 2008 ruling in Boumediene v. Bush that the detainees are constitutionally entitled to habeas and despite President Obama's promise to close Guantánamo within a year of his taking office, the prison remains open with approximately 196 men, the majority of whom have had no habeas hearing nor been charged with any crime. Several years ago, a D.C. district court judge once concluded: "It is often said that ‘justice delayed is justice denied.' Nothing could be closer to the truth with reference to the Guantánamo Bay cases."