APRIL 15, 2020
BY NOW, it is well known that, after 9/11, the United States strayed from its values and the rule of law, including by engaging in torture and indefinite detention. Around the world, the greatest symbol of these failures is the prison at Guantanamo Bay (“GTMO”).
I represented two detainees at Guantanamo, both of whom have now been released. I traveled to the prison multiple times to meet with my clients. I also had access to documentation (much of it now public) supporting their claims of torture. Yet, even for me, A Place Outside the Law: Forgotten Voices from Guantánamo was full of new and interesting information.
Peter Jan Honigsberg wrote this book to highlight the human stories of those who lived and worked at Guantanamo and to “remind future generations not to repeat what has happened there.” This book serves to preserve these stories for history and before memories fade.
From 2009 through 2019, Honigsberg documented the stories and voices of 158 people who lived or worked at GTMO, including 52 former detainees and prison guards, interrogators, medical personnel, lawyers for the detainees, prosecutors, and others. Readers get a firsthand, eyewitness account. Nearly all of the quotes in this book are from interviews Honigsberg filmed through Witness to Guantanamo, an organization that he founded in 2008 to collect and preserve this history.
Honigsberg, a law professor at the University of San Francisco, also provides an overview of how these detainees ended up at GTMO. Five days after 9/11, Vice President Dick Cheney publicly stated that we would “have to work sort of the dark side.” By September 17, the CIA was authorized to detain suspected terrorists outside the United States. They were kidnapped, placed in diapers and orange jumpsuits, tranquilized, and then sent to secret prisons around the world, called black sites, including in Syria, Jordan, Egypt, Morocco, Thailand, Afghanistan, and Lithuania. Many ended up at GTMO, with the first 20 captives (including my client, Mohammed Ghanem) arriving on January 11, 2002.
The Bush administration selected GTMO because they believed that by holding people on a United States military base in Cuba, GTMO was a legal “black hole” without any legal protections, including any rights under the Constitution. Without the right to due process, people could be, and were, indefinitely detained without the ability to challenge their confinement in court. Without the protections of the Geneva Conventions and laws against torture, the United States could, and did, mistreat and torture its prisoners. As Erwin Chemerinsky, dean and law professor at the University of California, Berkeley, states in this book, “[t]hat kind of lawlessness is the antithesis of the rule of law.”
However, the US Supreme Court held in a series of cases that the detainees do have due process rights under the US Constitution and are protected by the Geneva Conventions. This allowed detainees access to lawyers and the right to file a habeas corpus petition to challenge their detention. The right to habeas corpus was incorporated into the Constitution in 1789. A habeas petition asks the court to consider whether there is sufficient evidence to continue to hold somebody being detained. Honigsberg includes interviews with several of these habeas lawyers.
A Place Outside the Law makes clear that many of the detainees were innocent and wrongfully imprisoned. Most captives were not even captured on the battlefield, and US forces captured no more than five percent of the Guantanamo detainees. Instead, US officials dropped leaflets over Afghanistan and its border with Pakistan, offering bounties for “Taliban and al Qaeda fighters.” One leaflet read, “Get wealth and power beyond your dreams.” Another said, “[t]his is enough money to take care of your family, your village, your tribe for the rest of your life — pay for livestock and doctors and school books and housing for all your people.” Not surprisingly, people grabbed tribal enemies and others not from the local community and sold them for a bounty to the United States. In fact, it turns out that only eight percent of those captured were actually al-Qaeda soldiers.
Ultimately, of approximately 740 detainees that have been released, only a few were ever charged with a crime. Today, there are currently 40 remaining prisoners, 26 of whom are deemed “forever prisoners.” The government has determined that they are too dangerous to release and that they cannot be tried in a court of law because the evidence against them was obtained through torture and, thus, is inadmissible. As Honigsberg writes, many of these 40 are “likely to die in Guantanamo, never charged, never tried and never convicted.”
Even after obtaining the right to a lawyer, the government took actions to prevent detainees from having a fair trial. One former JAG lawyer, Morris Davis, said that the failed military commissions to try Guantanamo detainees (instead of in a court of law) were designed to convict. Acquittals were not acceptable because detainees had been held for years and it would be difficult for the government to explain an acquittal after someone had been held in prison for that long. Morris was one of six prosecutors working in military commission cases during the Bush administration years that either quit or requested assignment.
Defense military lawyer David Frakt described the military hearings as “kangaroo courts.” They were seen as shams with verdicts decided in advance.
Our government took actions to deter detainees from having lawyers. Detainees with lawyers were at times placed in solitary confinement for hours or days and were body-searched before and after the meetings. Some military members at GTMO tried to turn the detainees against their lawyers by telling them that their lawyer was Jewish. They said Jews “are not good to Muslims” and “liked to have sex with men.”
Lawyer-client conversations were overheard on closed circuit cameras in each of the meeting rooms. Listening devices were also hidden in smoke detectors.
Detainees told Honigsberg that while they were at black sites before being transferred to GTMO, they were electrocuted; beat with whips and bats until rendered unconscious; subjected to changing temperatures from 100 degrees to 10 degrees; frightened from snarling dogs; threatened with rape and mock executions; chained from ceilings and doors; urinated on; assaulted with anal instrumentation or subjected to rectal feeding, where mashed food was inserted up one’s rectum. Glendale Walls, an interrogator, acknowledged that he placed one detainee, Dilawar, on a sleep deprivation program while he hung from his wrists from the ceiling for four days.
Honigsberg explains that the torture at Guantanamo was more psychological than physical. This included placing detainees in stark isolation for up to a year, sleep deprivation for weeks at a time, temperature manipulation, and denial of simple comfort items such as blankets, pillows, toothbrushes, and toilet paper. Detainees were even told that family members had been captured and would be raped if the detainee did not reveal secrets.
Mohamed Jawad, a juvenile, was what was known as a “frequent flier.” He was moved from cell to cell 112 times in a 14-day period. Detainee Mourad Benchellali explained that he had a feeling of always being depressed, always under stress, and had nightmares. After he was released from Guantanamo after two and a half years, he was unable to resume a normal life due to his psychological trauma.
To deal with their isolation, many of the detainees turned inward toward their faith, including some who had not previously been religious. They read the Qur’an as there was little else to read in their cells. Knowing the importance of the Qur’an to the detainees, some prison guards spit or stepped on them, tore out pages, and even dropped them in the toilet.
Even medical doctors participated in cruel care of their patients at Guantanamo. Although they took an oath to “do no harm,” they made decisions on what harmful techniques to use. They also actively participated, even supervised, in various forms of torture. One medical personnel employee at Guantanamo admitted to initially hating and being angered at all detainees, believing they were not human. Then he witnessed the military’s dehumanizing and brutal treatment of the detainees, including force-feeding, which is the act of binding the detainee’s head, feet, and arms into a restraint chair and then pushing nasal tubes up the detainee’s nostrils and down into his stomach. Force-feeding was performed on well over 150 detainees who protested conditions and treatment at the camp, including their indefinite detention. For some, they were force-fed at least twice per day for months or more.
There have been six publicized suicides at Guantanamo and an undocumented number of attempts.
Honigsberg also addresses the negative emotional consequences that these conditions have had on those other than the detainees, including the attorneys, many of whom suffered secondary trauma. Pardiss Kebriaei discussed breaking down when she returned home to New York from her Guantanamo visits. She said, “I mean just hearing — You’re sitting across from people who were being tortured.” The first habeas lawyer to fly to Guantanamo on behalf of detainees in September 2004 was Gita Gutierrez. She states that Guantanamo was “like seeing a very ugly side of this country … How could this happen? It was the antithesis of everything I’ve ever learned about being a lawyer — everything I’ve learned about being the citizen of a democracy.”
These feelings are consistent with my own. When my client told me for the first time about his treatment, I had tears in my eyes. I told him that torture and indefinite detention was inconsistent with American values, but I’m not sure he believed me.
The most interesting stories in A Place Outside the Law are of those whose beliefs about the detainees changed over time. For example, Lieutenant Darrel Vandeveld was a prosecuting attorney who described himself as a hardcore, fervent believer in the global war on terror who never questioned what he heard and trusted America’s leaders to make the right decisions. In 2007, he was assigned to prosecute one of several juveniles at Guantanamo, Mohamed Jawad. The facts given to him by the military pointed to guilt. Yet, Vandeveld had serious reservations after he himself delved into the case. One day, he stared at himself in the mirror and saw someone “possessed of humanity, who could extend that humanity to even someone who is an enemy, a dirty little terrorist, from a dirty little crappy foreign land. A land that’s a pile of rocks.” He soon determined that he had to leave his post as a prosecutor at Guantanamo.
Vandeveld flew to Washington and went to a Benedictine monastery. After a few days he sent a note to a Jesuit priest. The note read: “I’m a prosecutor at the commissions in Guantanamo and I have grave reservations about what I’m doing and what our country is doing. Tell me what to do.” The response from the priest was: “What you’re doing is participating in evil. This is something that God does not want you to do. Stop, resign, and start your life over.”
The lieutenant wrote an email to the army advocate general and identified the flaws in Jawad’s prosecution. He asked the chief prosecutor to be reassigned and publicly denounced the military commission process. That led to his house arrest.
Prison guard Brandon Neely ultimately became friends with two detainees, and they reunited in London in 2010. He said that he realized “not everything that the media says is what it is.”
Prison guard Terry Holdbrooks had been told the prisoners were “the worst of the worst” and a bunch of “towel heads” and “dirt farmers.” But when he spoke with some of the detainees, he developed friendships and learned that he and the detainees had similar interests and were not that different after all. Holdbrooks stated that he knew doing his job was morally and ethically wrong. He felt shame, grief, and guilt. He and other guards would drink at night to escape their thoughts.
In a twist, Holdbrooks began observing the prisoners’ Muslim faith and converted to Islam in 2003. He began limiting his own drinking, improved his health, and worked on being more positive about others. “These [qualities] are important in Islam,” he explained.
The last section of A Place Outside the Law is entitled “Looking Forward and Looking Back.” As we look back on Guantanamo’s past (and still present) Honigsberg states that what has happened there is a crime against all humanity and must never be repeated. I agree.
However, consider that no American official has been held accountable for the damage to our Constitution, the rule of law, and human rights after 9/11. Detainees are barred from suing the government under the law. Congress rewrote the 1996 War Crimes Act in 2006 so that American officials could not be convicted of a war crime even if they committed “humiliating and degrading treatment.” And, according to Honigsberg, it is nearly impossible to successfully prosecute and punish government officials for certain war crimes articulated in the Geneva Conventions because these war crimes are no longer identified as war crimes under American law. And so Bush, Cheney, Rumsfeld, and John Yoo, author of the “torture memos” that allowed for torture (and since renounced), have never been held accountable.
Without this accountability, government officials will not be deterred from violating the law. Indeed, as Honigsberg correctly observes, the current administration shows disdain for human rights and the rule of law. He references the Trump administration “pursuing the Muslim ban; blocking families from lawfully applying for asylum; separating children from parents at the southern border […]; directing illegal campaign payments; […] unilaterally withdrawing from treaties;” and other policies that “reflect an abuse of power and indicate that the president is not committed to guaranteeing that the Constitution and the laws of the United States will be faithfully executed, as he solemnly swore under oath.”
But it does not have to be this way. As Maya Angelou states in a quote Honigsberg uses in the beginning of the book, “History, despite its wrenching pain, cannot be unlived, but, if faced with courage, need not be lived again.” A Place Outside the Law is an important contribution to this grave chapter in our history.