Crisis Lawyering in a Lawless Space

Reflections on Nearly Two Decades of Representing Guantanamo Detainees

BAHER AZMY

I first saw my client on a TV screen.

As the third civilian lawyer entering the inner sanctum of Camp Echo in October 2004, inside the notorious military prison in Guantanamo, Cuba, guards showed me the surveillance they would use during my meeting with my client, Murat.

I sent away the German translator and braced to meet him alone. When the door to our meeting room in Camp Echo opened, he was seated, squinting at the incoming sunlight. Dressed in a tan shirt and cotton pants, with a flowing beard and a red-brown mane of hair, Murat looked like a castaway on a desert island—which in a sense he was. He shook my hand and motioned for me to sit on a flimsy plastic chair, as if he were welcoming me to tea in his home. Despite my suit, tie, and dress shoes, the dissonance of this legal meeting was accented by the sound of practice machine-gun fire outside. I tried to sound confident, like a lawyer. “Murat, my name is Baher Azmy,” I told him.

I handed him a handwritten note from his worried mother to help con­vince him I was on his side. For three years he had not talked to anyone who

was not a military guard or interrogator and was surely not predisposed to trust this stranger. The simple honesty and loving reassurance of her message still moves me: “My dear son Murat, You will be visited by an American law­yer whom you can trust. His name is Baher Azmy. Murat, your brothers go to school and we have been for vacation in Turkey. We were shopping with [your wife] and she is loving you.” As I watched his pained expression while reading his first message from home—his first taste of humanity in three years—I felt as though I was delivering bread to Robinson Crusoe.

I explained that his mother had been fighting for him for years and that, following a big decision four months prior from the United States Supreme Court, I had filed a case for him in court in an attempt to challenge the legal­ity of his indefinite detention. He had never been charged with any crime, let alone put on trial. Indeed, because he had been held incommunicado for almost three years, he had no idea anyone even knew of Guantanamo’s existence—or his own. I told him I was a Muslim born in Egypt and a law professor with faith in the American legal system—albeit a faith that I have considerably muted since our first 2004 meeting. “You have sued President Bush?” he asked. “Yes, you and I have sued him together. And, I will do ev­erything I can to help you,” I answered. To my relief, he said in his German accent, “This is goot.”

How I got to this place at this time—one of the strangest legal, geopolitical, and moral spaces I have ever encountered—requires some background.

* * *

Soon after the September 11, 2001, attacks, George W Bush’s administration proclaimed a “Global War on Terror” and sought to consolidate unquestioned executive power by braiding together two narratives: First, the necessity of deferring to presidential decision-making during (conventional) wars; and second, the specter of a shadowy, fanatical, global enemy threatening the American way of life.

At the heart of these now discredited practices was the Bush administra­tion’s crown jewel in its so-called war on terror: Guantanamo. For human rights advocates and zealots of muscular executive power, Guantanamo re­mains a central flashpoint for purposes of understanding questions of legality and democratic legitimacy. Guantanamo poses a fundamental question: In a constitutional republic, can there be a prison outside the law? In the years since 9/11, a fundamental recognition has played out before our eyes: bad things happen in dark places.

In this chapter I tell a truncated story of the initial, bold—dare I say heroic— legal intervention led by CCR and several other seasoned human rights law­yers to challenge the Bush administration's actions only months after the 9/11 attacks and in the midst of a bellicose, nationalistic fever. The first phase of the legal intervention commenced in early 2002 with a seemingly hopeless petition for habeas corpus on behalf of demonized suspected terrorists, which resulted in a seismic United States Supreme Court victory, two and a half years later, authorizing detainees to challenge the legality of their imprisonment in Guantanamo. The second phase of the litigation, following the Court's authori­zation of legal representation for detainees, saw CCR coordinate a mass mobi­lization of lawyers, activists, and human rights institutions to surface stories of innocence, bureaucratic incompetence, and torture. In doing so, these lawyers would dramatically reverse the administration's muscular Guantanamo narra­tive.

This leads us to the third and most complex phase, representing a tension we currently inhabit. Despite the courage, creativity, and exhaustive efforts of emergency lawyering, the legal architecture in Guantanamo, like all forms of government power, is resilient. The ultimate takeaway from this work is conflicted. On the one hand, lawyering and advocacy resulted in the release of 730 men, discredited Guantanamo as an anomalous experiment, and power­fully reaffirmed first principles regarding the rule of law and the dangers of unchecked executive power. On the other, the prison facility at Guantanamo remains open to this day, the current detentions of forty men are largely sanc­tioned by the courts, and not one Bush administration official has been held accountable for any of the egregious human rights abuses they perpetrated.

These three phases offer a set of modestly generalizable lessons from the Guantanamo experience: (1) that radical, decisive, courageous lawyers with political grounding in how the state dehumanizes subjects are necessary to articulate and leverage a principled vision of law as a force for dignity and rights and to challenge the state's deployment of law as a weapon of control and violence; (2) that a mass mobilization of lawyers, activists, and interna­tional human rights entities is necessary to elevate stories of individuals fac­ing injustice, as well as to create an alternative, in mutually reinforcing ways, to the reductive narrative of national security; and (3) that in the darkest of places, lawyers can sometimes offer what all repressive systems seek to deny their subjects: hope and recognition.

Phase 1 Crisis Lawyering: Radical Lawyers' Challenge to the Emergency Executive Action

Guantanamo’s Authoritarian Logic

On November 13, 2001, President George W. Bush issued Military Order No. 1, “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism,”⁴ which authorized the Secretary of Defense⁵ to try noncitizens in military tribunals and to carry out executions without the possibility of judi­cial review. Appreciating the emergency legal intervention undertaken by the first group of radical lawyers and the subsequent legal strategies deployed by the hundreds of lawyers that arrived later on the scene in this effort requires some understanding of the interlocking political and narrative scaffolding erected by the Bush administration to sustain its cruel, extraconstitutional experiment. To begin with, the administration did not seek to leverage Guan­tanamo's claimed operational advantages in order to try captured enemies for war crimes. Trial—or any other imagined adjudication of guilt or innocence— was at best an afterthought. Guantanamo predominantly functioned as the largest piece in a broad policy that contemplated the indefinite, secret deten­tion of suspected terrorists or sympathizers in the service of the U.S. military's global interrogation operation.⁶ The Bush administration pursued this strat­egy by developing a legal narrative that sought to displace rights with power. It created a novel legal category—the “enemy combatant”—and proclaimed that such persons were not entitled to any rights whatsoever, including basic Geneva Convention rights governing wartime captures and requiring humane treatment. To forestall any challenge to this novel legal regime, administration lawyers sought to create a “legal black hole” or “the legal equivalent of outer space”—explicitly outside the jurisdiction of US courts.⁷

Avoiding court jurisdiction over the detentions was necessary to deny sub­stantive rights and to prevent exposure of the administration's interrogation and torture program.

The administration's legal architecture was dangerous not only because of the grotesque instrumental ends it was designed to protect—the torture and debasement of prisoners—but also because of its authoritarian logic. In de­veloping these legal positions, the administration arrogated to itself all the power it saw in international law—that is to say, the authority to undertake the temporary detainment of battlefield captures—while disregarding cor­responding constraints on that authority—the predetention determination of an individual's legal status and the universal obligation of humane treatment.

It represented, in an essential way, the definition of tyranny.

And whatever the merits of this legal position, denying individuals the en­titlement to any rights required a public spin. This narrative is what Muneer Ahmad has called the “Iconography of Terror”⁹ and Joe Margulies has called the “Myth of the Superhuman Terrorist.”¹⁰ Administration officials routinely described the detainees in Guantanamo as “the worst of the worst,” “hard core, well-trained terrorist[s],”“ and, in the colorful phrasing of the Joint Chiefs of Staff, the kind of monsters who could “gnaw the hydraulic lines in the back of a C-17 [military plane] to bring it down."i² This metanarrative painted a frightening picture of depraved, transnational networks commit­ted and able to destroy the United States, melding the otherwise individual identities of 780 men into this totalizing narrative of a Muslim menace. Such a narrative—which actually suppressed the emerging understanding among administration officials that the military actually had transferred very few bona fide terrorist suspects to Guantanamoi³—nevertheless justified the total denial of rights and reconciled the apparent anomaly of lawless detention with the imagined moral superiority of the United States?⁴ And this mus­cular claim to have captured and imprisoned hundreds of Muslim detainees helped a presidential administration that was otherwise self-conscious about being caught off-guard on 9/11.1⁵ As Ahmad observes, much like the racial- ized internment and debasement of Japanese Americans during World War II and the mass incarceration of African Americans today, Guantanamo fed an existential need for security?⁶

The Radical Lawyers’ Response

Michael Ratner, CCR's longtime legal director, read the news about the Bush administration's Military Order No. 1 with considerable (but familiar) alarm. Ratner was one of the country's foremost radical, anti-imperialist lawyers, a man who cut his teeth representing social justice activists, prisoner-victims of the Attica attacks, and communities terrorized by atrocities in Central Amer­ica during President Ronald Reagan's administration.¹⁷ As a deeply politically engaged lawyer with a rich historical understanding of the ways in which executive power initiates needless war and commits war crimes, accelerates public fear, and criminalizes domestic communities (as was happening in the neighboring immigrant Muslim communities of Brooklyn), Ratner felt com­pelled to challenge what he regarded as the functional abandonment of the most elementary due process principles codified since the Magna Cartad⁸ According to Ratner:

The President's claim that he had unlimited and unchecked power to combat terrorism was by far the most serious threat to human rights in the post 9/11 world. It was of a different character than the granting of more powers to the CIA and FBI [of the kind Ratner had challenged in earlier years]. The president, under the military order, was claiming that he had the authority to arrest and detain people forever. This claim to unlimited detention power undercuts the key principle underlying democracy: the principle that authority (the president, the prime minister or king) is under law?⁹

Ratner and staff at the Center for Constitutional Rights debated and ultimately agreed to mount a legal challenge to this perceived executive lawlessness.²⁰ It was not a self-evident decision. As Ratner recalls, CCR was more accustomed to “defending the rights of those we generally agreed with, those involved in making progressive social change such as civil rights workers in the South or opponents of the US contra war in Nicaragua.’^¹ The principle that CCR was seeking to vindicate might lead it to represent those responsible for the horrific 9/11 attacks. Ratner sought to form a coalition to mount a challenge, but no other legal organization in the country would consider taking on the president at this politically fraught time. He ultimately connected with a small handful of lawyers, including the seasoned death penalty lawyers Joe Margulies and Clive Stafford Smith—both accustomed to absorbing public wrath while pressing for legal recognition of reviled clients—as well as the legendarily genius icon of the death penalty defense movement and New York University law school professor Anthony Amsterdam.

When the US military delivered the first three dozen prisoners to Guanta­namo on January 11, 2002—intentionally shown in the US media as hooded, bound, and chained to the floor of a C-17 cargo transport plane—Ratner and his team of radicals knew what they would do. They sought to check a seem­ingly unprecedented executive action through a seemingly unprecedented legal challenge. They intended to file legal petitions for habeas corpus on be­half of men the administration had accused of orchestrating the cataclysm of 9/11. Habeas corpus is an ancient legal protection, derived from the Magna Carta, inherited in US common law from British law, and expressly protected by the United States Constitution (which prohibits the “suspension” of habeas corpus “unless when in cases of rebellion or invasion the public safety may require it”).²² At its essence the habeas petition is designed to prevent and remediate arbitrary executive detention by authorizing a court to question and nullify the asserted authorization for such detention?³ As Guantanamo revealed, the idea of military detention without charge strikes at the heart of constitutional legitimacy?⁴

Ratner harbored no illusions about the possibility of immediate judicial re­lief. In fact, he viewed the initial filings as “hopeless” in light of seemingly over­whelming obstacles. To begin with, the lawyers had no clients. Since the point of incommunicado detention at Guantanamo was to isolate, disorient, and dehumanize detainees, they were denied any contact with the outside world, let alone lawyers. Still, the governments of the United Kingdom and Australia received notice of their citizens' detentions in Guantanamo, so family members who were correspondingly informed contacted human rights lawyers at home who in turn connected with CCR. But how would we to file a habeas petition when we were not permitted to communicate with clients and obtain their au­thorization? In one of a number of times in which we would resort to obscure and ancient common law principles throughout the litigation, the first habeas petitions were filed on behalf of detainees' parents as their “Next Friend.” Under ancient common law, when the King locks you in the Tower and throws away the key, someone—a Next Friend—must be able to get into court. For these twenty-first-century lawyers, the Tower was Guantanamo?⁵

A second obstacle to the initial filings was the state of the legal doctrine in­volved. Following World War II, the US Supreme Court ruled that a convicted German war criminal, Lothar Eisentrager, detained on a US military base in Germany, could not access US courts to challenge his imprisonment?⁶ This precedent was problematic, but unlike the Eisentrager case these UK and Australian Guantanamo petitioners were not from “enemy” nations, did not have the benefit of even a military trial, and, most fundamentally, un­like Germany, Guantanamo was, practically speaking, as much a part of the United States as was Florida. Also, with age, bad precedent can become good. Some World War II legal architecture has been discredited by history, as any first-year law student studying the Supreme Court's shameful sanctioning of Japanese Americans' internment would know. Indeed, the initial legal team strategically extracted from these discredited decisions an important political warning: courts should not reflexively trust the executive's claim to unbridled power in wartime.

The final obstacle confronting Ratner must have appeared as daunting as Mount Everest. The habeas petitions were filed in February 2002, just five months after the 9/11 attacks. President Bush enjoyed massive popularity in large part because of his bellicose discourse; by assuming a wartime posture, Bush lustily advocated imposing maximal pain on and destruction of terrorist enemies (and those who would even harbor or defend them) and thereby sent the public's trust in military judgment soaring. Also, for the Bush administra­tion, containment and humiliation of the Guantanamo detainees were central to the projection of an iconography of terror.²⁷ The earliest legal filings thus represented not a challenge to some individually incorrect detention decision but rather an attack on the president's constructed war-making architecture itself. CCR struggled to find local counsel in Washington who would even dare to put their name on such a filing. After it was lodged, Michael Ratner received enough hate mail and death threats to fill a suitcase.

Despite these uncertainties, Ratner and company filed “100% on princi­ple.’^⁸ At this historical moment, few lawyers possessed Ratner's gifts as a radical lawyer: his faith in the potentially redemptive power of law both as a means to critique power and articulate principle, his understanding of the real human consequences of war and unchecked executive power, and his belief in the enduring power of empathy and love as fuel for movements and justice. His example inspired an army of other lawyers—including me.

The challenge for the Guantanamo lawyers was to leverage a legal rul­ing ensuring the jurisdiction of the courts—and thus the possibility of law­yers—so as to dismantle the dominant political narrative justifying the legal anomaly of Guantanamo.

This first case challenging lawless executive detention was captioned Rasul v. Bush.

Phase 2—A Right to Law and a Lawyer

As Michael Ratner predicted, the initial stages of the Rasul litigation gener­ated little more than hate mail and death threats. The federal district court and court of appeals made quick dispatch of the petitioners' arguments, largely agreeing with the government that US courts had no jurisdiction over habeas petitions filed by foreign nationals detained in a place those courts considered—despite all practical appearances—outside the formal territory of the United States. The lawyers for Rasul and the now-consolidated case Al Odah v. United States (brought by Tom Wilner, Neil Koslowe, and Kristine Huskey of the elite DC firm Shearman & Sterling at the behest of the Kuwaiti government seeking representation of Kuwaiti nationals) sought Supreme Court review almost two years to the date after the September 11 attacks.²⁹

With support from various powerful voices filing amicus (or “friend of the court”) briefs, including retired generals, former POWs, and Fred Korematsu—the civil rights icon who, having been subject to the mass intern­ment of Japanese Americans, perhaps most embodied the danger of judicial acquiescence to (often false) claims of “military necessity”—the petitioners in Rasul avoided framing the case in terms of the rights of terrorist suspects versus the national security. Instead, they framed the case in terms of the “rule of law,” the most transcendent and fundamental American value, versus the power-hungry Bush presidency, comprising a set of arrogant and bellicose officials. For a variety of regrettable reasons, the former narrative is rarely successful in American legal-political spheres. By contrast, the narrative that the Bush administration had been dangerously and arrogantly consolidating power was becoming increasingly plausible.

In a series of so-called enemy combatant cases before the Supreme Court, all challenging Bush administration military detention practices, advocates argued that the administration's legal architecture did not merely ignore the rights of detained individuals but, in so doing, betrayed foundational Ameri­can principles. In defending itself, the administration took the most maxi­malist legal position, aggressively rejecting the relevance of the coordinate branches of government in a way that would make Alexander Hamilton and James Madison turn over in their graves. Beyond its overreach, the adminis­tration's position suffered a dramatic hit when shattering images of degraded, contorted, agonized Iraqi citizens tormented by US military officers in the Abu Ghraib prison came to light. The pictures took on extra salience given that the US deputy solicitor general, in response to Justice Ginsburg's obser­vation during oral argument in the contemporaneous case Rumsfeld v. Padilla, that the government's absolutist legal position would arguably permit torture, confidently asserted: “Our Executive doesn't.”³⁰ As Joe Margulies observed, the Abu Ghraib photos served as the most powerful amicus brief of all.³¹

On June 28, 2004, in Rasul v. Bush, the Supreme Court ruled against the Bush administration, holding that detainees possessed rights under the habeas corpus statute to challenge the legality of their detention without charge. Im­portantly, it would destroy the “legal black hole” narrative, finding that Guanta­namo was “in every practical respect “within ‘the territorial jurisdiction' of the United States.”³² Because of that, law and the US Constitution still applied. The opinion, written by Justice Stevens, who served in World War II and clerked for Justice Wiley Rutledge (who came to regret his vote in support of Japanese internment), turned on some highly technical jurisdictional maneuvers, but it also invoked the profound importance of the “Great Writ” of habeas as a check on arbitrary imprisonment. Indeed, it sent this powerful normative message: in a country committed to the rule of law, there could be no prisons beyond the law. The New York Times noted that the combined enemy combatant deci­sions issued by the Court represented “the court's most important statement in decades on the balance between personal liberties and national security.”³³ Though its full parameters would be contested in the coming years, at a mini­mum the ruling introduced the antidote to Guantanamo's authoritarian logic: lawyers. The Rasul lawyers' successful strategy, once seemingly hopeless, now seemed inevitable. The detainees would no longer languish in silence, reliant on Next Friends and lawyers they had never met. Despite the initial, seemingly insurmountable obstacles, the strategy behind the Rasul decision represented one of the most canny and audacious crisis lawyering efforts in memory.

Although the Rasul decision contained a clear and resounding legal ruling, a central lesson from this episode—translatable to all emergency lawyering efforts—is that one cannot measure success by judicial vindication alone. As we shall see, the Bush administration accepted little of what seemed a stinging judicial rebuke. It did not shut down Guantanamo. A second phase of creative crisis lawyering had to emerge—one that expanded the team of legal actors from a handful to hundreds.

Building Networks, Shifting Narratives

Phase 2 Lawyering: Seeking Meaningful Access to the Writ

While Rasul was pending, lawyers from CCR had either reached out to or been contacted by other families with loved ones in Guantanamo. By the time Rasul was decided, there were sixty-five detainees whose families wanted representa­tion, including the Kuwaitis represented by Shearman & Sterling. Lawyers from CCR and the Gibbons law firm in Newark, New Jersey, that had represented the detainees in the Supreme Court, alongside Margulies, Stafford-Smith, and other renowned habeas corpus experts such as Anthony Amsterdam and Eric Freedman, parceled out the habeas petitions, largely grouping nationals together, among thirteen sets of lawyers. Among these sixty-five detainees was Murat Kurnaz, a twenty-four-year-old Turkish resident of Germany. Even though I knew nothing about his case, he was assigned to me.

All these cases were assigned to Judge Joyce Hens Green of the federal dis­trict court for the District of Columbia. Speaking for the lawyers representing all of the detainees, Joe Margulies articulated our simple demands: access and answers. We wanted immediate access to our clients in Guantanamo, and we wanted answers to our habeas petitions—our clients had a right to know what they were accused of. The government reluctantly agreed to permit lawyers to visit their clients even as it vigorously fought all the cases, seeking again to dismiss them across the board.

Murat’s Case

It was during this time, in October 2004, that I first met Murat. After our first meeting, I spent three long days with him developing trust. He spoke about his family, his childhood, his obsession with exercise, clean air, and healthy food. He had a rooted faith in Islam that helped him manage the brutality, solitude, and air of forever that hung over the prison. He was also hilariously funny—so much so that my friends eagerly awaited the government censors' review of my notes so I could share his jokes. Everything out of his mouth—any joke or message of love to his family—was deemed presumptively classified by the military and could be made public only after clearance by censors.

Soon after I returned home, the government filed with the court the un­classified reasons for his detention, which rested on an utterly preposterous accusation. In October 2001, while on a religious pilgrimage in Pakistan, Murat was apprehended on a civilian bus. Eventually, he was sold to the US military for the bounty it was offering for individuals allegedly connected to al-Qaeda or the Taliban. Because there was no actual evidence of violence or wrongdoing, the US government claimed that Murat's hometown friend, Selcuk Bilgin, committed a suicide bombing in Istanbul in the fall of 2003. Setting aside the legal absurdity of the government's claim—that it could in­definitely detain someone because of the act of a friend, allegedly carried out while Murat was incommunicado in Guantanamo—the government's claim was factually absurd as well. As a quick conversation with German authorities revealed, Selcuk Bilgin was alive and well. Several months later, I met him.

No Right to Substantive Rights

We assumed the Rasul decision would allow us to engage in hearings to challenge the evidence against our clients and that, if it was found to be insufficient, to obtain their release. Given the preposterously fabricated claim against Murat, I was particularly eager to engage the court in an age-old prac­tice of producing evidence and vindicating rights. The government thought otherwise, moving to dismiss the sixty-five consolidated petitions. But these proceedings also revealed continuing overreach by the government, which claimed authority to denominate anyone an “enemy combatant” if he was merely “supporting Taliban or al Qaida forces, or [any] associated forces.”³⁴ Indeed, at the oral argument on the government's motion to dismiss, the gov­ernment conceded in response to a series of hypothetical questions that it could detain anyone at Guantanamo as an enemy combatant, including: “A little old lady in Switzerland” who sends a check to an orphanage “that turns out to be a front for al-Qaeda.”³⁵ This was not a theoretical overreach on the part of the government but rather a legal necessity. As lawyer after lawyer would reveal, Guantanamo was filled with, figuratively speaking, many little old ladies from Switzerland.

Judge Green denied the government's motion to dismiss all of the then- filed habeas cases, concluding that detainees enjoyed basic due process rights to challenge the evidence against them and test the legality of their detention. She singled out the thinness of the evidence against my client and highlighted evidence from the classified portion of his file, which I was later able to publi­cize through parallel Freedom of Information Act litigation^⁶ demonstrating that intelligence officials had long ago concluded that my client had “no con­nection to Al Qaida or the Taliban."3⁷

Wholesale Lawyering Versus Retail Lawyering

The government immediately appealed Judge Green's decision, which set off a five-year battle in Congress, in the DC Circuit Court of Appeals, and in the Supreme Court, all in a quest to secure meaningful access to the rights-affirming protections of habeas corpus for our clients. I call this the “wholesale lawyering” process, and it was led by the original post- Rasul set of lawyers who had appeared before Judge Green.

Concurrently, there was what I call a robust “retail lawyering” process, engaged in by hundreds of lawyers whose efforts would over time lend them the moniker the “Guantanamo Bay Bar Association.”³³ Handling case by case, client by client, they slowly picked away at the government's political and narrative defense of Guantanamo. The brilliance of the wholesale lawyering strategy, the dynamism of the retail lawyering process, and, more important, their continuing interactivity represented one of the most important collec­tive legal efforts in memory.

Wholesale Lawyering

In the appellate proceedings, the wholesale lawyering team argued that even if the US Constitution's Due Process Clause did not protect detainees, those detainees possessed independent rights stemming from the habeas corpus statute itself, which specifically authorizes a judicial process to investigate the factual and legal basis for detention. The Justice Department lawyers had almost no response to the force of this simple argument. But for the pols and bureaucrats in the Bush administration, the fact that the habeas statute con­ferred rights was no obstacle—they just demanded a supplicant Congress to wipe away that statute. So, with little debate and no hearings, Congress repealed the habeas statute as it applied to detainees in the Detainee Treatment Act of 2005.³⁹ When the Supreme Court invalidated that retroactive repeal of rights,⁴⁰ Congress simply tried again to strip the courts of jurisdiction to hear any cases brought under the habeas corpus statute via the Military Commissions Act of 2006.41 Congress thus sought two suspensions of habeas corpus within two years—more than had been attempted in the prior 200 years.

The wholesale legal team went back to court to argue that the Military Commissions Act of 2006 was an unlawful suspension of the constitutional requirement that habeas corpus remains available in cases of executive deten­tion. We lost in the DC Circuit Court of Appeals. Our initial attempt to secure Supreme Court review failed. The litigation effort to secure fundamental ha­beas rights for our clients seemed doomed.

But that didn't mean there was no lawyering to be done.

Retail Lawyering: Building a Movement of Guantanamo Lawyers

As the machinations in the courts regarding the scope and meaning of the Great Writ moved apace, CCR took the lead in the massive effort to find representation for all the unrepresented Guantanamo detainees, number­ing, at the time of Rasul in 2004, approximately 600 (from a peak of 779 in 2003). CCR lawyers, led by Gita Gutierrez, fanned across the country to convenings of prominent lawyers to recruit a geographically diverse set of firms and practitioners to represent detainees. At the same time, other CCR lawyers traveled to Afghanistan, Yemen, and the Gulf States to get Next Friend authorizations allowing family members to file for other detainees. To help grow and solidify the network, CCR held regular training sessions about all facets of lawyering at Guantanamo (which brought in the grow­ing network of lawyers as trainers themselves), addressing topics from the restrictions the government had placed on our communications with our clients to the culture- and gender-based sensitivities they might encounter during meetings with clients.

No accurate count has ever been made, but I would estimate that no less than a thousand lawyers from across the country were engaged in represent­ing detainees.⁴² Crediting Michael Ratner's vision and leadership, David Cole has called this group “Michael Ratner's Army."4³ In my estimation, this repre­sented the greatest mass legal defense effort in US history.

Because the merits of all the habeas petitions were stalled, these lawyers engaged in other litigation and advocacy activities that might help shift the administration's narrative about Guantanamo. A study by Mark Denbeaux and a talented team of students at Seton Hall Law School shattered the gov­ernment's “worst of the worst" narrative by proving that only 8 percent of detainees were even alleged to be al-Qaeda fighters and that 55 percent were alleged to not even have engaged in a hostile act?4 Lawyers representing eth­nic Uighurs from China, whom the US government publicly admitted were not enemy combatants, argued in court and in the national media about the absurdity of detaining those even the jailer acknowledged to be innocent?⁵ The evidence proving Murat Kurnaz's innocence became front-page national and network news? Repeated, individual stories about clients in Guanta­namo were cultivated by individual lawyers working all over the country, often with local media, to demonstrate time and again the attenuated basis for detention. These efforts steadily shifted understandings; the iconic image of Guantanamo detainees transformed from the “hardened terrorist" to the innocent “chicken farmer" in the “wrong place at the wrong time."4^y

Critically, Guantanamo lawyers and advocates increasingly recounted to the public details of the horrific treatment endured by their clients while in detention and facilitated the public airing of the detainee voices that the ad­ministration had done everything to silence?⁸ For example, the Bahrain citi­zen detainee Jumah al Dosari wrote in the Los Angeles Times:

At Guantanamo, soldiers have assaulted me, placed me in solitary confinement, threatened to kill me, threatened to kill my daughter and told me I will stay in Cuba for the rest of my life. They have deprived me of sleep, forced me to listen to extremely loud music and shined intense lights in my face. They have placed me in cold rooms for hours without food, drink or the ability to go to the bath­room or wash for prayers. They have wrapped me in the Israeli flag and told me there is a holy war between the Cross and the Star of David on one hand and the Crescent on the other. They have beaten me unconscious?⁹

Alongside the legal advocacy on behalf of individual clients, and in many ways as a result of our newfound ability to speak with the detainees to learn and share their stories, international and DC-based advocacy groups joined the harsh criticism of Guantanamo. Amnesty International called Guantanamo the “gulag of our times,”⁵⁰ while Human Rights Watch and Human Rights First wrote deeply critical reports and engaged in advocacy with legislators on Capitol Hill.51 Activist psychiatrists became highly critical of the American Psychological Association's collaboration in interrogations/² The libertarian Cato Institute repeatedly criticized indefinite detention without trial as con­trary to the Madisonian plan/³ A growing number of senior retired military generals spoke out about the dangers of abandoning principle and the Geneva Conventions—marking a rare occasion when the military and radical lawyers like Michael Ratner or the ACLU would be on the same side/⁴ Military defense lawyers like Charles Swift heroically defied command pressure to aggressively fight for their clients accused in an otherwise closed military system.55

Pressure from foreign lawyers and international organizations was yielding concrete results on behalf of detainees as well. Clive Stafford Smith and law­yers at his new nonprofit organization, Reprieve, were ruthlessly successful in suing and shaming the British government for its failure to negotiate for the release of British detainees. Dan Mori, counsel for Aussie detainee David Hicks, waged a creative and resilient campaign to pressure the Australian gov­ernment to insist on Hicks's repatriation/⁶

With the wholesale habeas litigation stayed and no immediate prospect of a judicial hearing on the merits of his case, I worked with my German cocounsel, Bernhard Docke, to pressure the German government to de­mand the release of our client, Murat Kurnaz. That meant repeated trips to Germany—to Murat's hometown and to Berlin alongside Bernhard—to hold press conferences, public convenings, and private meetings with diplomats and legislators to tell Murat's story. I sought to humanize him, despite the press's inclination to accept him as a terrorist (right-wing papers called him “Der Bremen Taliban,” referring to his hometown). I showed the press and German government officials documents proving his innocence; I detailed his torture to anyone who would listen and at press conferences (including once while his mother silently wept beside me). Over a three-year period, Bernhard and I probably spoke to fifty German journalists and filmmakers. Our message was clear: Guantanamo was an evil institution, and Germans would be responsible—indeed complicit—if they did not press for his release. The liberal government of Chancellor Gerhard Schroder was cowardly in its response to these humanitarian demands, but within weeks of entering office, in 2006, Angela Merkel started negotiations for Murat's release. On August 24, 2006, Bernhard and I stood with Murat's family in Germany as he walked into their arms, finally free after five years in lawless military detention.

In 2002 Michael Ratner, the Center for Constitutional Rights, and just a few other courageous lawyers waved a writ of habeas corpus almost by them­selves. By 2006 a national and global movement emerged, albeit one directed by legal and policy elites, demanding the end to Guantanamo and its related injustices. Instead of facing death threats like Michael Ratner in 2002, this movement had the support of civil society groups and even other nations' governments that came to understand the critical nature of maintaining con­stitutionalism and human rights.⁵⁷

Phase 3—Victory and Loss

A Victorious Judicial and Political Consensus and Then Retrenchment

While hundreds of “retail lawyers” and advocates were surfacing stories about their clients, the “wholesale” quest for meaningful access to the writ of habeas corpus—a right to a hearing—proceeded. The wholesale legal team, myself included, sought to show that detainees did, in fact, enjoy constitutional rights in Guantanamo, including the protections of the Constitution's Sus­pension Clause.5⁸ If the Suspension Clause applied to the geographic space of Guantanamo, Congress's attempts to suspend the habeas statute, without providing an adequate substitute, would be unconstitutional. The team fought with the administration over historical understandings about the reach of the writ of habeas corpus, contesting the meaning of eighteenth- and nineteenth­century English cases involving far-flung imperial locations and disputing whether the extremely limited form of judicial review contemplated by the Military Commissions Act of 2006 was an adequate substitute for traditional habeas review. This part of the litigation was novel, important, and dizzyingly complex. But at a level of remove from these technicalities, for public con­sumption we had a seemingly unassailable position: if the government thinks a detainee did something wrong, it should give him a fair hearing. You cannot punish someone indefinitely based on mere executive say-so.

After initially denying our request for review, the Supreme Court took the very unusual step of reconsidering and granted our petition for certiorari in the summer of 2007/⁹ At a packed and highly anticipated oral argument in January 2008, Seth Waxman, former solicitor general during the Bill Clinton administration, argued for the detainees; his argument featured prominently Murat Kurnaz's story—that the government claimed authority to detain him based on the manifestly false allegation that his friend was a suicide bomber—in challenging the illogic of the government's position.⁶⁰

In what was assumed to be historic decision, Boumediene v. Bush,⁶¹ the Supreme Court ruled in favor of the detainees again, concluding that the Constitution protects their access to habeas corpus and, in a rarity in legal history, rejected the concerted efforts of the executive and legislative branches during wartime, favoring instead robust judicial review?² The Court chastised the administration for its attempts to “govern without legal constraint”'³ and “switch the Constitution on and off at will”6⁴ and proclaimed that detainees should have “meaningful’ access to the writ, which must include a right to present exculpatory evidence and the authority of the court to order release?⁵

It was a legal earthquake.

Around the same time, in the summer of 2008, then-Senator Barack Obama and Senator John McCain committed to closing Guantanamo as part of their presidential campaigns, albeit with different levels of emphasis.

It bears recalling that, in 2002, Michael Ratner could not even locate local counsel to put their name on CCR’s “hopeless” legal filing because it was so toxically controversial. Yet a mere six years later, the concerted effort to build a dynamic movement of lawyers, activists, and rule-of-law advocates had pro­duce a legal and political consensus that Guantanamo was illegitimate.

The Ultimate Retrenchment: A Limited Discourse of Rights

Almost immediately after the Boumediene decision, retail and wholesale law­yers alike moved in quick coordination to set up their cases for individual habeas hearings of the kind we had been fighting for since 2002. The federal district court in the District of Columbia, where these cases were set for hear­ings, set evidentiary standards and procedural requirements to constrain the government and also authorized detainee lawyers to obtain limited discovery to test the government's facts?6 During this period, the district courts were articulating what I have elsewhere called a “New Common Law of I labeas”'⁷ It was a deep and rigorous set of common law-style adjudication that, among other things: (1) limited the scope of the government’s detention authority (no more little old ladies from Switzerland); (2) critically scrutinized the quantity and quality of evidence, rejecting evidence obtained by torture and rank hear­say; and (3) issued an order in the case of concededly innocent ethnic Uighur detainees who faced a risk of persecution if returned home to China that their unlawful detention in Guantanamo be remediated by their supervised release into the United States.'⁸ Within approximately the first year after Boumedi- ene, of the forty petitions adjudicated by the district courts, the court granted the writ thirty-one times—in other words, it ordered the liberty of 75 percent of the detainees who had their cases heard post-Boumediene.⁶⁹

At the same time, President Barack Obama's administration—which in­herited the remaining 242 detainees who had not been released by the Bush administration—signaled a dramatic shift in detainee policy. On his second day in office, Obama issued an order that mandated the closure of the prison within one year.⁷⁰ He established the Guantanamo Review Task Force to evaluate the status of each detainee and appointed a State Department special envoy to negotiate detainee transfers. During the first two years of the Obama presidency, about fifty detainees were transferred from Guantanamo, about half to their home countries and the rest to third countries for resettlement, mostly in Europe.

Yet despite all of this early optimism, within two years of the Boumediene decision and Obama's election, we faced retrenchment in the courts and in politics. As many political science scholars will explain, legal claims of liberty and the recognition of disfavored persons are rarely sustainable over the long term. For the Guantanamo detainees, as in so many social justice struggles, the entitlement to rights is degraded by powerful actors in the legal and po­litical systems, deploying a narrative and a legal architecture that would deny meaningful—let alone equal—access to justice. This retrenchment would draw legal—though ultimately artificial—distinctions around citizenship. It was sus­tained by a parallel narrative heightening fear and dehumanizing the detainees, making them monstrous and treating them as the “other.” So, what seemed like both an inevitable and durable victory in 2008, a full and final reclamation of American values, would not come to be—calling into question our naive as­sumption that Guantanamo was, in fact, contrary to American values.

On the legal front, the DC Circuit Court of Appeals (which was, during this time, even more conservative than the Supreme Court) eviscerated Bou- mediene's promise of meaningful judicial scrutiny of the president's deten­tion decisions. By 2013, the DC Circuit reversed every district court decision granting the writ and affirmed nearly every decision denying the writ/¹ It set up a de facto principle of total deference to the executive branch through decisions that, among other things, reversed careful fact-finding by lower courts,7² accepted the authenticity of the government's evidence/³ rejected the relevance of international law/⁴ and largely limited the authority of courts to order a detainee released/⁵ As the appellate judge David Tatel observed in a dissenting opinion in Latif v. Obama, the DC Circuit's post-Boumediene jurisprudence “comes perilously close to suggesting that whatever the govern­ment says must be treated as true."7⁶

The conservative judges on the DC Circuit made no secret of their open defiance of the Supreme Court. One judge on the circuit described Boume- diene as full of “airy suppositions” about the practicality of judicial review, while Judge Raymond Randolph, whose decisions had been overturned by the Supreme Court in detainee cases on three separate occasions and who led the charge to dismantle Boumediene in case after case, compared the Supreme Court justices in Boumediene to Tom and Daisy Buchanan in The Great Gatsby—“careless people, who smashed things up [and] let other people clean up the mess they made.”⁷⁷ It was as if Boumediene had never been de­cided. For Guantanamo detentions, the writ no longer exists as a mechanism of accountability/⁸

This had tragic consequences, as the case of Adnan Latif reveals. Like so many Guantanamo detainees, Latif was in Afghanistan for utterly innocuous reasons and was captured fleeing the US bombing campaign in that country. Following Boumediene, the federal district court in his case found the govern­ment's evidence of his affiliation with al-Qaeda “not convincing” and ruled his detention unlawful. Even though the Guantanamo Task Force had cleared Adnan for release, the Obama administration itself appealed the district court's decision to the government-friendly DC Circuit. Predictably, another con­servative panel of the DC Circuit reversed the decision, basically adopting a “Guantanamo-only” rule that accepted the government's evidence on its say- so. Adnan Latif filed a compelling petition for certiorari, pleading with the Su­preme Court to correct the steady evisceration of its Boumediene decision by the DC Circuit. The Court declined, relegating Boumediene to nothing more than an empty promise/⁹ Adnan, who had earlier written to his lawyer that “I am a prisoner of death,” killed himself in his cell not long after/⁰

While detainees were experiencing judicial abdication, they saw political retrenchment as well. Despite his early promise—and action—toward closing Guantanamo, President Obama lost his will. Republicans in Congress demon­ized his plan to repatriate Uighurs in Virginia and realized that conservatives could be effective in painting Obama as weak on national security/¹ Con­gress also passed laws imposing challenging—albeit not insurmountable— conditions on transferring detainees to third countries. By 2013, judicial relief was impossible and diplomatic attempts to repatriate detainees had effectively stopped. No lawyers had grounds to litigate habeas cases, as Boumediene had seemed to promise.

Given the futility of law during this period, in February 2013 detainees took matters into their own hands. Seizing control over the only aspect of the life they retained, detainees engaged in a hunger strike that reached more than a hundred men—two-thirds of the prison population. More than forty- five were painfully force-fed through plastic tubes inserted through their noses and into their stomachs. This collective action by the detainees got the president's attention when he was asked about it at a press conference. Obama again articulated the “this is not who we are” trope—that is to say, we don't hold people indefinitely without trial or force-feed them.⁸² One would have to question the belated and increasingly mythical invocation of American values. Inside the administration, however, the strike put some pressure to restart the transfer and resettlement process.

In the last two years of his administration, Obama transferred eighty-one men—still not enough to close the prison. The consequences of prolonged in­definite detention for those implicated by that continuing judicial and political abdication are severe?³ The forty-one men who Obama could not release by the end of his term now face Donald Trump's Islamophobic administration, em­powered by the DC Circuit's judicial rulings and the Supreme Court's abandon­ment of Guantanamo to do what the president wants without legal constraint.

Longer Lessons from Crisis Lawyering

As we can see, this story about the search for law in a lawless place is com­plex and far from triumphalist, as it failed in its ultimate aspiration to end indefinite detention and close the prison. Indeed, as Jack Goldsmith has argued—with a considerable sting to this human rights lawyer—the initial challenges to the illegality of Guantanamo have, per the DC Circuit's reck­oning, actually instantiated a legal regime that justifies continuing detention pursuant to legal process.⁸⁴

But let me stress: I have absolutely no regret for the role that CCR, I, and hundreds of other lawyers and activists played in representing Guantanamo detainees and challenging other aspects of the war on terrorism. This was a courageous and principled response to a genuine human rights crisis, moti­vated by the highest aspirations of conscientious lawyering. It was not only consequential—I dare say it was often heroic. This legal effort exposed incom­petence, cruelty, torture, and deeply misguided executive policies; it narrated the experiences of humans who would otherwise have remained voiceless and demonized; it captured the attention of the highest decision makers in the land and across the world; and it led to the release of 750 men from the brutality and indignity of indefinite detention. Personally, it was the most meaningful, morally engaging, and challenging work I have ever done, made more so because it was in coordination with an awe-inspiring coalition of creative and committed lawyers, activists, and clients.

Still, as this story of lawyering and rights was playing out, I had consider­able frustration that important basic rights—including those we thought we first obtained in Rasul and then substantiated in Boumediene—did not take hold in Guantanamo or as part of our broader struggle against excesses in the war on terrorism. Rights were held out before us repeatedly, like Lucy with Charlie Brown's football, only to be taken away at the last second. In the end, we learned a difficult lesson about what it means to fight for law in a lawless place. The reason for this may not be surprising to political scientists and anthropologists, but for those who are trained in the imagined neutrality of legal doctrine and have faith in a linear story of progressive American consti­tutionalism, this can be a lesson worth recalibrating.

After all, rights do not exist in a vacuum. They are not freestanding, three­dimensional objects, with a shape and mass that endure once they are rec­ognized. Instead, rights are utterly contingent on politics—not the other way around. They depend on membership in a political community. Hannah Arendt famously defined citizenship as the “right to have rights,”⁸⁵ by which she meant one could not access rights such as freedom from deprivation of life and liberty if not recognized as a legitimate member of the political community. 8⁶ Drawing from this framework, Muneer Ahmad has observed that the problem for Guan­tanamo detainees, for victims of drone strikes, and for Muslims unfairly treated in the United States is that, politically dispossessed as they continue to be, they have “no right to have rights.’^⁷ Without corresponding political legitimacy, any jurisprudentially recognized rights can be taken away soon thereafter.

If this is true, it suggests we need a more modulated approach to long-term struggles for justice. It causes me to think about rights tactics and strategies slightly differently and to offer a more optimistic take on the struggles since 9/11. As Michael Ratner and the other Guantanamo pioneers recognized, the law started and remained a critical articulation of principle, carrying a nar­rative force about the value of democracy, human rights, and human dig­nity that can override claims of raw state power. But legal principle alone will rarely be enough. The success of the Guantanamo work, by any measure— releases, changed narratives, historical memory—came from the mass mobi­lization of lawyers, activists, and advocates who offered a sustained critique of all aspects of the institution, leveraging stories of clients and exposing the cru­elty and contradiction of the Guantanamo experiment. Thus, it was the legal mobilization and advocacy that Rasul unleashed (far more that the “rights” purportedly promised by Boumediene) that had the most consequence in this now decades-old struggle for justice. And for this remarkable reckoning of law and movement-building to be sustained into the future in any context, it has to be fueled by the deeply human, by the enduring and reinforcing values that stand opposite to repression: hope, empathy, and solidarity.

And after almost two decades of lawyering in a lawless space, I recognize other, more critical modes of lawyering outside the rights-vindication para­digm. They include:

Lawyering as Principle. For a politically oriented and experienced lawyer like Michael Ratner, principles like democracy, rule of law, and human rights are not just worth fighting for; they also have a narrative force that can change minds and limit power. They can fuel long-term campaigns for justice.

Lawyering as Hope and Resistance. Authoritarian systems like Guantanamo seek to isolate victims from the rule of law and their lawyers simply because lawyers mean that “help is on the way.” In other words, lawyers produce hope in systems that are otherwise dependent on desolation and despair. Indeed, the first set of the ultimately hundreds of lawyers that would enter Guantanamo fractured the prism of total power and ensured that the prison would never be the same. Lawyers can form a layer of resis­tance protecting clients from continuing applications of state violence.

Lawyering as Recognition. As Ahmad powerfully observes, the central tactic of the George W Bush administration in creating Guantanamo was myth­making and erasure. To this end, detainees had no identity other than the one constructed upon them. In this myth, menacing Muslim terrorists are entitled to no rights and no recognition. As Ahmad also argues, even without conclusive courtroom victories, the simple filing of a case—versus the president of the United States of America or the secretary of defense— represents a demand for individualized recognition and rights in age-old legal traditions embodied in the Great Writ and in historical struggles for justice dating back to the Magna Carta. It is akin to the existential assertion of rights as a form of bearing witness, as the brilliant death penalty lawyer Bryan Stevenson urges us to do when confronting racial injustice in the criminal justice system.⁸⁸ It is saying “I am not invisible” and “I am here” and “My client is here, and we are watching you.” A demand for rights can be seen as a demand to blunt the force of the state, even if that demand cannot fundamentally alter state power.

Lawyering as Critique. Law in its greatest practical force can produce judi­cial decrees ordering the government to do something, including releas­ing someone from detention. But even in cases involving an unjust state, lawyers can use law to critique and destabilize a practice and, if successful, surface enough contradictions to make the practice unsustainable. The first Guantanamo filing in 2002 is a perfect example of this. Despite being “hopeless” at the time, the long-term litigation strategy challenging the Bush administration’s practices opened political space to talk about the legality of its practices, inside and outside the courtroom. And after the Ra­sul decision, the influx of lawyers—and the retail lawyering and advocacy it produced—unleashed a torrent of critique about the incompetence and cruelty of administration officials, the innocence of our clients, the torture, and the interrogation that rendered Guantanamo politically unsustainable for some time.

Lawyering as Storytelling. Once lawyers were paired with clients, human stories could be told. Stories of suffering, despair, dignity, and families left behind could all be channeled into the public sphere. This had a powerful neutralizing effect on the administration’s efforts to paint detainees with an undifferentiated wash of dangerousness, and on its own it had the effect of affirming detainees’ dignity. Lawyers facilitated one detainee’s pleas to the outside world by circulating detainee poetry and art, and they channeled clients’ humanity from a dark cell on the edge of the world directly into the American public consciousness.⁸⁹

Lawyering as Movement Support. CCR did not seek to hold onto the Guanta­namo cases to advance its own institutional prerogatives. Along with oth­ers, CCR sought to democratize the representation of detainees. This had obvious administrative and resourcing benefits, but it also had another in­tentional aim that was functionally realized: it produced a collective, orga­nized, and dynamic—indeed, global—movement of lawyers and advocates in a concerted effort to close Guantanamo. This mutually reinforcing effort of lawyers, human rights advocates, and institutions built its own mo­mentum to successfully mitigate the excessive power claimed by the Bush administration?⁰ The formidable collective known as the Guantanamo Bay Bar Association became so legitimized that administration attempts to criticize or intimidate it were an instant failure. The international nonprofit community that mobilized for Guantanamo still exists and collaborates on a range of practices related to excessive state power. I personally know several dozen since-radicalized big law firm partners ready to channel their Guantanamo-inspired outrage to challenge Trump administration prac­tices. Indeed, I believe one of the reasons for the success of rapid responses to the Trump administration’s lawlessness is the movement of politically oriented lawyers and organizations that have practiced and organized col­lectively in response to the Bush administration’s excesses.

Lawyering as Liberation, Reunification, and Love. Earlier, I told you the story of meeting my client Murat Kurnaz for the first time and what it was like to break the seal of isolation and hopelessness together. That moment was transcendent—if abstract—and it felt like a crack in the force field of mili­tarism, violence, and degradation. I’d like to end with another story about my client that I hope reinforces how, despite its monumental frustrations, lawyering can be life-altering for those engaged in it—a process of libera­tion, solidarity, and affirmation of basic human dignity.

In August 2006, German officials told my German cocounsel, Bernhard Docke, and I that Murat would likely be released. On August 24, 2006, I met the Kurnaz family at a gas station outside of Murat's hometown of Bremen for the six-hour drive south toward Ramstein Air Force Base. We were told he would be arriving in the early evening on a C-17 transport plane. The day was full of intrigue—secret meetings with German officials; constant, intrusive calls from German and American reporters; and almost overwhelming anxi­ety. While we waited in a Red Cross facility for seniors, we saw a huge C-17 military plane descending from the sky. It was Murat.

Murat's mother, Rabiye (who had been fighting tirelessly and courageously for her son's release for years), Murat's father, and his two brothers assem­bled in a hallway on the fourth floor to greet Murat. Rabiye stood in front of the creaky elevator doors, where her anticipation built to an almost unbear­able level as the elevator repeatedly started and stopped, huffed and creaked. When the doors finally opened, Rabiye latched on to her son as if he might be taken away from her again at any moment. With Murat in her arms, she wept.

In the incredible excitement of that very long day, including a 3 a.m. rush to get the Kurnaz family home past a swarm of waiting journalists, I remem­ber one thing more clearly than any other: during the dozens of hours that Murat and I had spent together in Guantanamo, his ankle had always been chained to the floor.

That day, for the first time, I saw Murat walk.

NOTES

1 See Center for Constitutional Rights, https://ccrjustice.org.

2 Id.

3 Id.

4 Military Order of November 13, 2001, 66 Fed. Reg. 222 (Nov. 13, 2001).

5 The president claimed authority to do so—and to override both congressional and constitutional strictures on the use of military trials—upon his administra­tion's robust understanding of the commander-in-chief powers of Article II of the Constitution—an authority that administration lawyers deemed could override virtually every codified legal constraint in the war on terror. He also based it on the ample and elastic authority conferred by Congress via the Authorization for Use of Military Force, which provided—and, incredibly, still authorizes the president to use—“all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001.” Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001).

6 Joseph Margulies, Guantanamo and the Abuse of Presidential Power (2007) (arguing that prolonged, preventive detention, coercive interrogations, and secrecy were hallmarks of the administration detention policy commencing after 9/11 and carrying through to Abu Ghraib).

Michael Isikoff, The Gitmo Fallout, Newsweek (July 16, 2006), www.newsweek. com. See also Memorandum for William J. Haynes, II, General Counsel, Department of Defense, from Patrick F. Philbin & John C. Yoo, Deputy Assistant Attorneys General, Office of Legal Counsel (Dec. 28, 2001), reprinted in The Torture Papers: The Rqad to Abu Ghraib, 29—37 (Karen J. Greenberg & Joshua L. Dratel eds. 2005) (stating their belief that a federal district court cannot properly exercise habeus corpus jurisdiction over detainees on Guantanamo because the United States does not have sovereignty over the island under its lease with Cuba (Agreement Between United States of America and the Republic of Cuba for the Lease to the United States of Lands in Cuba for Coaling and Naval Stations, Feb. 16-23, 1903, U.S.-Cuba, T.S. No. 418, 6 Bevans 1113 [hereinafter “lease agreement”]); Vermilya-Brown Co. v. Connell, 335 U.S. 377, 380 (1948) (stating that the United States has no sovereignty over Guantanamo Bay). See Neil A. Lewis, Red Cross Finds Detainee Abuse in Guantanamo, N.Y. Times (Nov. 30, 2004) (reporting conclusions of the ICRC, whose investigative team spent most of June 2004 at Guantanamo, that “investigators had found a system devised to break the will of the prisoners at Guantanamo... through ‘humiliating acts, solitary confinement, temperature extremes, [and] use of forced positions.'”). Muneer Ahmad, Resisting Guantanamo, 103 Nw. U. L. Rev. 1683, 1696 (2009). Joseph Margulies, The Myth of the Superhuman Terrorist, Natl. L.J. (Nov. 23, 2009).

See Ahmad, Resisting Guantanamo, 1695.

Katharine Q. Seelye, A Nation Challenged: The Prisoners; First ‘Unlawful Combatants’ Seized in Afghanistan Arrive at U.S. Base in Cuba, N.Y. Times (Jan. 12, 2002).

See Greg Miller, Many Held in Guantanamo Likely Not Terrorist Suspects, L.A. Times (Dec. 22, 2002) (reporting that Maj. Gen. Dunleavy traveled to Afghanistan to complain about the number of “Mickey Mouse” detainees being sent to Guantanamo).

Margulies, The Myth.

And, because as we shall later see, lawyers would eventually expose the reality that very few detainees were bona fide terrorist suspects, the administration needed to continue to deny rights—and corresponding visability—to feed the (false) narrative that these detentions were necessary to prevent another terrorist attack. Ahmad, R esisting Guantanamo, 1695.

See generally Michael Smith, Lawyers of the Left (2019); Brandt Goldstein, Storming the Court (2005). Tragically, in 2016, Michael, who never shied away from a fight, battled but ultimately succumbed to cancer. Vincent Warren, CCR Mourns The Loss of a Hero—Michael Ratner (May 11, 2016), https://ccrjustice.org; David Cole, Michael Ratner, RIP, Just Security (May 11, 2016), www.justsecurity.org; Harold Koh, Michael Ratner: The Leading Progressive Lawyer of a Generation, Jusτ Security (May 12, 2016), www.justsecurity.org.

18 Critically, as an experienced human rights lawyer, he had seen this play out before. Just about ten years prior, following a coup and resulting humanitarian crisis in Haiti, hundreds of Haitians fled in overcrowded boats in search of American shorelines—and asylum. The first Bush administration (George H. W Bush) deployed the Coast Guard to interdict the Haitians and house them in prison-like pens in Guantanamo Bay. Ratner, along with the brilliant, young Yale law professor (and future dean) Harold Koh supervising students in the Human Rights Law Clinic there (including many who would continue the radical lawyering tradition learned during that case and three of whom—Christy Lopez, Ray Brescia, and Michael Wishnie—are contributors to this volume), filed a legal challenge arguing that the indeterminate detention without access to the asylum process violated U.S. and international law. The first Bush administration took the position that, as foreign nationals located on foreign soil (i.e., Cuba), they were not entitled to assert rights in U.S. courts—a position Ratner knew he would encounter again this time. The broader litigation and advocacy campaign on behalf of the Haitians was largely successful; many were allowed to seek asylum in Florida. See Goldstein, Storming the Court.

19 Michael Ratner, Litigating Guantanamo, in International Prosecution of Human Rights Crimes 202 (2007).

20 Other CCR lawyers who were central to the initial filing were then-legal director Bill Goodman, Barbara Olshansky, and Steven Watt. In subsequent years, dozens of CCR staff spent thousands of hours representing detainees and fighting in the courts of law and public opinion, including: Seema Ahmad, Jesse Baen, Liz Bradley, Kevi Brannelly, Annette Dickerson, Wells Dixon, Abigail Downs, Omar Farah, Tina Foster, Susan Hu, Aliya Hussain, Gita Gutierrez, Shayana Kadidal, Pardiss Kebriaei, Rachel Meeropol, Jen Nessel, Ibraham Qatabi, Omar Shakir, Vince Warren, Noor Zafar, and numerous others.

21 Ratner, L itigating Guantanamo.

22 U.S. Const. art I, § 9, cl. 2; Rasul v. Bush, 542 U.S. 466, 474 (2004).

23 See Rasul, 542 U.S. at 474; see generally Jonathan Hafetz, Habeas Corpus After 9/11: Confronting America's New Global Detention System (2011)

24 Rasul, 542 U.S. at 476-77.

25 Another case was brought by a team of lawyers, including constitutional scholar and advocate Erwin Chemerinsky, asserting “Next Friend” status for a group of clergy seeking to bring habeas claims on all of the detainees' behalf. That case was dismissed for lack of standing. Coalition of Clergy v. Bush, 189 F.Supp.2d 1036 (C.D. Cal. 2002), affd 310 F.3d 1153 (9th Cir. 2002), cert. denied, 538 U.S. 1031.

26 See Johnson v. Eisentrager, 339 U.S. 763, 790-91 (1950).

27 See Ahmad, Resisting Guantanamo, 1695.

David Cqle, Engines of Liberty: The Power of Citizen Activists to Make Constitutional Law (2016).

Al Odah v. United States, 321 F.3d 1134 (D.C. Cir. 2003), revd sub nom. Rasul v. Bush, 542 U.S. 466 (2004).

Supreme Court of the United States, Rumsfeld v. Padilla, No. 03-1027, Tr. Of Oral Argument, 23 (Apr. 28, 2004).

Joseph Margulies, Guantanamo and the Abuse of Presidential Power (2007).

Rasul, 542 U.S. at 480.

David Stout, Supreme Court Affirms Detainees Rights to Use Courts, N.Y. Times (June 28, 2004).

Memorandum from Paul Wolfowitz, Deputy Sec'y of Def., Order Establishing Combatant Status Review Tribunal (July 7, 2004) (“The term “enemy combatant” shall mean an individual who was part of or supporting Taliban or al-Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed a belliger­ent act or has directly supported hostilities in aid of enemy armed forces.”) In re Guantanamo Detainee Cases, 355 F. Supp. 2d 443, 475 (D.D.C. 2005). Azmy v. U.S. Department of Defense, 562 F. Supp. 2d590 (S.D.N.Y. 2008).

Id.

Stacy Sullivan, Minutes of the Guantanamo Bay Bar Association, N.Y. Mag. (June 16, 2016), http://nymag.com.

Detainee Treatment Act of 2005, Pub. L. No. 109-148, §§ 1001-1006 (2005).

See Hamdan v. Rumsfeld, 548 U.S. 557, 635 (2006).

Military Commissions Act of 2006, Pub. L. 109-366, 120 Stat. 2600 (2006). Later, the ACLU would start the John Adams Project to recruit lawyers to represent the so-called 9/11 conspirators who were moved to Guantanamo in 2006 from secret CIA detention and who faced death-eligible charges in military commissions proceedings.

David Cole, Michael Ratner’s Army, New York Review of Books (May 15, 2016), www.nybooks.com.

Mark Denbeaux et al., Report on Guantanamo Detainees: A Profile of 517 Detainees Through Analysis ofDepartment ofDefense Data, Seton Hall U. Sch. of L. (2006).

Kiyemba v. Obama, 563 U.S. 954 (2011) (noting the Uighurs had “been held for several years in custody at Guantanamo Bay, Cuba—a detention that the Government agrees was without lawful cause”) (Breyer, J., statement re denial of certiorari); Editorial, The Rule of Law in Guantanamo, N.Y. Times (Oct. 11, 2008) (criticizing the U.S. government for continuing to detain indivduals even the government thinks innocent).

See Carol D. Leonnig, Panel Ignored Evidence on Detainee; U.S. Military Intelligence, German Authorities Found No Ties to Terrorists, Wash. Post (Mar. 27, 2005) (quoting once-classified statements in Kurnaz's classified file demonstrating that both the U.S. military and his home German government recognize he had no connections to terrorist groups); see also Richard Bernstein, One Mans Odyssey to Guantanamo, N.Y. Times (June 2, 2005) (describing conclusions of German officials that Kurnaz has no connections to terrorism or al-Qaeda). In an interview with 60 Minutes, Kurnaz detailed his experience as a prisoner in Guantanamo, as well as his claims of torture and the government’s own evidence proving his innocence. Ex-Terror Detainee Says U.S. Tortured Him, CBS News (Mar. 28, 2008), www.cbsnews.com.

They Came for the Chicken Farmer, N.Y. Times (Mar. 8, 2006) 9 (describing the case of a chicken farmer in Pakistan, detained because his name resembled the Taliban deputy foreign minister’s name); Tom Lasseter, Day 1: America’s Prison for Terrorists Often Held the Wrong Men, McClatchy Newspapers (June 15, 2008), www.mcclatchydc.com (“An eight-month McClatchy investigation in 11 countries on three continents has found that [there are] perhaps hundreds [of men] whom the U.S. has wrongfully imprisoned in Afghanistan, Cuba and elsewhere on the basis of flimsy or fabricated evidence, old personal scores or bounty payments.”) See Tipton Three Complain of Beatings, BBC News (Mar. 14, 2004), http://news. bbc.co.uk (referring to Omar Kadhr, Kurnaz, and al Qatani).

Juma Al-Dassari, A Voice From Gitmos Darkness, L.A. Times (Jan. 11, 2007), www.latimes.com.

Alan Cowell, U.S. ‘Thumbs Its Nose’ at Rights, Amnesty Says, N.Y. Times (May 26, 2005).

See Human Rights Watch, Guantanamq Ten Years On (2012), www. hrw.org. See also the materials on Guantanamo compiled by Human Rights First at www.humanrightsfirst.org.

See Stephen Soldz, When American Psychologists Use Their Skills for Torture, Quartz (July 26, 2015), https://qz.com. (recounting infighting around deploy­ment of mental health professionals in military interrogations).

See Brief of the Cato Institute as Amicus Curiae in Support of Petitioners, Boumediene v. Bush, 2007 WL 2441584 (U.S.).

See Brief of Retired Generals and Admirals, Washington Legal Foundation, Allied Educational Foundation, and the National Defense Committee as Amici Curiae in Support of Respondents, Boumediene v. Bush, 2007 WL 2986451 (U.S.).

In one of the most important constitutional cases of the era, which was initiated by Swift’s brave defiance of unethical military pressure, Hamdan v. Rumsfeld struck down the then-existing military commissions system. See generally Jonathan Mahler, The Challenge: Hamdan v. Rumsfeld and the Fight Over Presidential Pqwer (2008).

See David Marr, David Hicks’ Lawyer Michael “Dan” Mori on the PR Campaign That Saved His Client, The Guardian (Dec. 4, 2014), www.theguardian.com. One of the clearest examples of this involved a statement made by Cully Stimpson, the deputy director of defense for detainee affairs in 2007, in which he identified about a dozen major American law firms representing detainees and with some measure of shock suggested that CEOs represented by such firms drop the firms or “make those law firms choose between representing terrorists or representing reputable firms[.]” David Luban, Lawfare and Legal Ethics in Guantanamo, 60 Stan. L. Rev. 1981 (2008). As Luban put it, the bullying tactic was a signal failure:

Within days, newspaper editorials and bar groups denounced Stimson's crude attempt to pressure the Guantanamo lawyers to abandon their clients; Charles Fried, the conservative former Solicitor General, wrote a blistering op-ed against Stimson; and the Defense Department embarrassedly disowned Stimson's com­ments. Stimson apologized; and three weeks after the interview he was out of a job.

Id., at 1982.

The ethical mission of the Guantanamo Bar Association had become invulner­able to questioning.

U.S. Const. art I, § 9, cl. 2.

That change of direction is attributable to the interplay between wholesale and retail lawyering. David Cynammon, a commercial lawyer at a commercial D.C. firm, joined the Guantanamo Bar Association around 2006, representing Kuwaiti detainees. Through a series of personal and professional connections, Cynammon located Stephen Abraham, a former naval intelligence officer who had been involved in a number of the CSRT military administrative panels and who was willing to blow the whistle at that moment in time about that laughably one-sided and outcome­determinative process. Abraham's whistleblowing, which showed that the military could not be trusted to dispense justice without judicial review, was a product of retail lawyering. Yet, the wholesale lawyering team relied on Abraham's testimonial in urging the Supreme Court to reconsider its position, which likely caused the Court to change course and grant the original petitioners' additional request for review. See Gitmo Panelist Slams Hearing Process, CBS (Feb. 11, 2009), www.cbsnews.com.

See Marty Lederman, Quick Reactions to Boumediene Oral Argument, SCOTUSblog (Dec. 5, 2007), www.scotusblog.com (calling this portion of Waxman's argument “one of the more powerful and effective rebuttals I've ever seen”).

See Boumediene v. Bush, 553 U.S. 723 (2008).

See Baher Azmy, Boumediene, Executive Detention and the New Common Law of Habeas, 95 Iowa L. Rev. 445 (2010).

Boumediene, 553 U.S. at 765

Id. at 727.

Id. at 728.

In re Guantanamo Bay Detainee Litig., No. 08-MC-442, 2008 WL 4858241 (D.D.C. Nov. 6, 2008).

Azmy, B oumediene.

In re Guantanamo Bay Detainee Litig., 581 F. Supp. 2d 33 (D.D.C. 2008), revd and remanded sub nom. Kiyemba v. Obama, 555 F.3d 1022 (D.C. Cir. 2009), vacated, 559 U.S. 131 (2010).

See Azmy, Boumediene.

See Exec. Order No. 13492, 3 C.F.R. § 101 (2010).

For comprehensive treatment of the DC Circuit's dismantling of habeas, see generally Stephen I. Vladeck, The D.C. Circuit After Boumediene, 42 Setqn Hall L. Rev. 1 (2011).

See generally Al-Adahi v. Obama, 613 F.3d 1102 (D.C. Cir. 2010) (overturning a district court's factual finding that detainee was not a member of al-Qaeda). See Latif v. Obama, 666 F.3d 746, 748-49 (D.C. Cir. 2011).

See Al-Bihani v. Obama, 590 F.3d 866, 871 (D. C. Cir. 2010). See Kiyemba v. Obama, 555 F.3d 1022, 1026 (D.C. Cir. 2009) See Latif, 666 F.3d at 779 (Tatel, J., dissenting) (quoting Parhat v. Gates, 532 F.3d. 834, 849 (D.C. Cir. 2008).

Raymond Randolph, Joseph Story Distinguished Lecture: The Guantanamo Mess, Address Delivered to the Heritage Foundation (Oct. 20, 2010). Arch conservative stalwart Judge Silberman wrote in an opinion that, unlike with criminal defen­dants, the risk of erroneous decision to release terrorist suspects compels that they be afforded fewer legal protections. Esmail v. Obama, 639 F.3d 1075, 1078 (D.C. Cir. 2011) (Silberman, J., concurring) (“I doubt any of my colleagues will vote to grant a petition if he or she believes that it is somewhat likely that the petitioner is an al Qaeda adherent or an active supporter.”)

Linda Greenhouse, Goodbye to Gitmo, N.Y. Times (May 16, 2012) (discussing D.C. Circuit's disdain for the Supreme Court's ruling and its refusal to intervene post- Boumediene).

Notably, the Supreme Court granted certiorari seven times to review “enemy combatant” cases during a four-year period of the George W Bush administra­tion. See Rasul v. Bush, 542 U.S 466 (2004), Rumsfeld v. Padilla, 542 U.S. 426 (2004), Hamdi v. Rumsfeld, 542 U.S. 507 (2004), Hamdan v. Rumsfeld, 548 U.S. 557 (2006), Rumsfield v. Padilla, 542 U.S. 426 (2004), Al Marri v. Spagone, 555 U.S. 2020 (2009), and Boumediene v. Bush, 553 U.S. 723 (2008). During the eight years of the Barack Obama administration, despite numerous requests from detainees, the Court took no cases involving military detention. This dynamic underscores a critical narrative point: as long as Guantanamo was perceived to be excep­tional—a perception aided by the bellicosity and arrogance of the Bush administration's legal positions—the Court would see itself having a role to intervene and course-correct. But, with Obama, who seemed measured, obedient to the law, and pledged to do the work himself to close the prison, the Court must have perceived it had no necessary role to superintend military affairs. Thus, far from the exceptional institution the Court seemed to reject in 2004, throughout the Obama administration the Court accepted the increasing normalization of Guantanamo into American life and law.

Baher Azmy, The Face of Indefinite Detention, N.Y. Times (Sept. 14, 2012). See, e.g., Charlie Savage, Pqwer Wars: Inside Obama's PQST-9/11 Presidency (2017).

82 Paul Harris, Guantanamo ‘Not In the Best Interests of the American People,’ Says Obama, The Guardian (May 1, 2013), www.thegaurdian.com.

83 See, e.g., Sudarsan Raghavan, Long After His Release, an Ex-Detainee Struggles With Guantanamo’s Torturous Clutches, Wash. Post (Apr. 25, 2018).

84 Jack Goldsmith, Power and Constraint: The Accountable Presidency After 9/11 (2012). For a critique of Goldsmith's sunny perspec­tive on the state of checks on executive power, see Baher Azmy, An Insufficiently Accountable Presidency, 45 Case W. Res. J. Int'l L. 23 (2012)

85 See Masha Gessen, “The Right to Have Rights” and the Plight of the Stateless, The New Yorker (May 3, 2018), www.newyorker.com.

86 For exploration of this principle in the context of Guantanamo, see Ahmad, Resisting Guantanamo.

87 Id.

88 See generally Bryan Stevenson, Just Mercy (2014).

89 See, e.g., Poems From Guantanamo (Marc Falkoff ed., 2007); Ode to the Sea: Artfrom Guantanamo Bay, www.artfromGuantanamo.com.

90 As professor Jules Lobell has explained, the winner-take-all model of American law does not sufficiently capture the power of lawyering even in loss. Even losing cases, he observes, “have helped to create a community and a culture dedicated to litigating the constitutional aspirations of oppressed groups,” and “communities often gain their identities not in celebrating their victories but in remembering their defeats.” Jules Lobell, Success Without Victory: Lost Legal Battles and the Long Road to Justice in America 6-7 (2003).