WSU International Law Studies Winter Speaker Series Learning from Guantanamo-- Courts, lawyers remain sole champions of habeas corpus

By John Minnis

Legal News

If there is anything positive at all coming out of the Guantanamo detention controversy, it is the courts' rulings upholding habeas corpus.

"Litigation is the most important tool in the toolbox to challenge political power," said Jonathan Hafetz, co-editor of "The Guantanamo Lawyers: Inside a Prison Outside the Law," a collection of accounts by some 100 attorneys working pro bono for Guantanamo detainees.

He spoke Tuesday, March 9, as part of a lecture series sponsored by the Wayne State University Law School Program for International Legal Studies and the International Law Students Association.

Hafetz directs litigation for the Liberty and National Security Project of the Brennan Center at New York University School of Law. He is counsel in several leading post-9/11 detention cases, including Al-Marri v. Pucciarrelli, challenging the indefinite military detention of a lawful resident alien arrested in the United States, and Munaf v. Geren and Omar v. Geren, two cases involving U.S. citizens unlawfully detained in Iraq. Hafetz has also helped coordinate the Guantanamo detainee litigation since its earliest stages and currently represents a detainee at Guantanamo. Last year, he successfully secured the release of Amir Mohamed Meshal, a U.S. citizen who was subject to extraordinary rendition and illegal detention in East Africa.

In introducing Hafetz to a well-attended audience of students and faculty in the Spencer M. Patrick Auditorium at the Wayne State University Law School, Gregory Fox, director of the Program for International Legal Studies, said of the Guantanamo saga, "I told Jon he had to check the news every hour to keep up."

Hafetz responded, "These issues, to my continued dismay, continue to remain constant. The rule of law will continue to be the road less traveled (in Guantanamo)."

He reminded students and faculty that President Barack Obama had vowed to close Guantanamo within a year.

"More than a year has come and gone," he said. "Guantanamo is still open and there is no timeline to close it."

The existence of Guantanamo and all it represents "undermines our values and creates more terrorists," he said.

And even after the Guantanamo detention facility is closed, indefinite detainment and military commissions will remain, Hafetz said, the official reasons being that the detainees are "too difficult to prosecute" and "too dangerous to let loose."

"This is unknown in American jurisprudence," he said. "It turns the Constitution on its head."

Unlike wars with governments, Hafetz said, "detention under the common noun of terrorism has no end."

He described military commissions and tribunals as "medieval," an "ad hoc judicial regime," and "a second-class system" that "makes up rules as you go."

The New York City attorney accused the Obama administration of making a "Faustian bargain" by replacing an Illinois prison with Guantanamo and allowing indefinite detention without a trial to continue.

Hafetz blamed Obama and Congress's cold feet on the "irrational fear of the terrorism" and "the politics of fear."

"Guantanamo is not just an abomination," he said. "It represents all that is wrong with a system that suppresses truth and perpetuates a lie."

Out of some 750 detainees "swept up in an indiscriminate global dragnet," he said, 190 of the so-called "worst of the worst" remain. Yet many have not even been accused of terrorism.

Many of the detainees were turned over by Pakistani and Afghanistan Northern Alliance "bounty hunters" in response to the United States's promise of "wealth and power beyond your dreams." Some detainees came from Thailand and Africa.

Under the Bush Justice Department's broad definition of executive power, "the U.S. could imprison a little old lady in Switzerland for unknowingly contributing to a charity supporting Al-Qaeda," Hafetz said.

He discussed the plight of his clients who were subjected to beatings and torture and then released without ever being charged. One detainee, who was subjected to the "frequent flier program" and moved 114 times in 10 days, attempted suicide by banging his head against a cinderblock wall.

"The torture at Guantanamo has stopped for now," he said, "but what remains is a system that deprives detainees of rights" -- the Combatant Status Review Tribunal.

"The stakes -- potential life in prison -- get less attention than a parking ticket," Hafetz said. "Even if you win you lose."

"Guantanamo is not just about misdirection," he said. "The cover-up of mistakes is deeply troubling."

No one person can be blamed for Guantanamo, he said. "It is the responsibility of everyone.

"Guantanamo is not just a place, a prison," Hafetz said. "It is a borderless system outside the guarantees of our Constitution. The system of Guantanamo must be ended."

To end it, he said, the United States must charge, try or release the detainees, even in the United States if necessary; must cease claiming it can detain people anywhere in the world; must stop creating more "Guantanamos" in other parts of the world, such as Afghanistan; and must remedy past mistakes by holding U.S. officials accountable.

"In the war on terrorism," Hafetz said, "the temptation to dilute and circumvent Constitutional protections will always be there."

He said Guantanamo is being treated as a "political football rather than the national disgrace that it is."

Closing Guantanamo now and preventing others in the future will depend on lawyers and law students, Hafetz said.

"Ending Guantanamo and the system it represents relies on lawyers," he said, citing cases now going before federal judges. "The results have shown that not all the detainees at Guantanamo are the 'worst of the worst.'"

Playing the devil's advocate, law professor Fox pointed out that in wars between states (countries), detainees can be held as long as the conflicts continue. "Why does that all go away when war is non-state-centered?" he asked.

Hafetz cited two reasons: 1) international law and conventions and 2) the U.S. Constitution does not allow for declaring non-state-centered wars.

"What is the limit?" he asked. "Where do you draw the line? Once you get away from the state-centered definition of war, there is no limit."

Published: Mon, Mar 22, 2010