Guantanamo Litigation as Legal Warfare
J. Wells Dixon
Center for Constitutional Rights,
The Daily Outrage,
The CCR blog, April 13, 2016
http://ccrjustice.org/home/blog/2016/04/13/guant-namo-litigation-legal-warfare
Amid a news cycle crowded with reports about Republican fearmongering and
the Obama Administration’s bureaucratic paralysis on closing Guantanamo, a
local news article last week from Fort Wayne, Indiana, caught my attention.
The website for Wane-TV 15 ran a story about Whitley County Superior Court
Judge Douglas Fahl, who also serves as a Major in the Indiana Army National
Guard JAG Corps. Judge Fahl is apparently deploying to Guantanamo in July to
"serve on the litigation support team which is responsible for prosecuting
the detainees and responding to requests for release from detention."
Nothing unusual there. In fact, many reserve and national guard officers
leave their day jobs and their families to serve for short periods of time
in detainee operations at Guantanamo. What struck me about the story were
Judge Fahl’s comments about the detainees and their lawyers, like me.
According to the article, Judge Fahl noted that "[t]here’s a tremendous
amount of political pressure to release the detainees." He also reportedly
said "GITMO has been described to me as the tip of the spear for legal
warfare." And apparently referencing his combat experience in Iraq in 2008,
he commented: "I’ve seen what these guys are capable of doing on the
battlefield. It’s always difficult to leave my family for a deployment, but
I am honored to be chosen to use my legal skills to make sure these
dangerous men don’t return to the battlefield to kill American soldiers or
innocent civilians."
I was taken aback. Judge Fahl apparently does not understand that the
remaining 89 detainees are not dangerous, and pose no threat to Americans or
anyone else. Many have been cleared for transfer for many years, which means
that every military, intelligence and law enforcement agency with a stake in
Guantanamo has determined unanimously that they pose no threat. It is also
doubtful that Judge Fahl encountered a Guantanamo detainee on the
battlefield. According to the government’s own public records, most
detainees were not captured on any battlefield, but rather were sold by
villagers and local police to US forces for substantial bounties. And the
last detainee to arrive at Guantanamo was reportedly transferred in March
2008 from CIA custody, not from the battlefield in Iraq. I am also not aware
of any reports about former Guantanamo detainees attacking US forces in
Iraq. There is simply nothing to support Judge Fahl’s claim that he knows
what "these guys" are capable of on the battlefield.
More fundamentally, how can a military officer who seems intent on keeping
detainees--all detainees, apparently--in Guantanamo possibly fulfill the
mandate of his commander-in-chief to close the prison by the end of the
year? It makes you wonder whether Judge Fahl is deploying to Guantanamo
hoping to do his part to frustrate and delay closure.
As if that were not worrisome enough, Judge Fahl also believes that
Guantanamo legal proceedings are "the tip of the spear for legal warfare." I
remind you that he is a military officer, lawyer, and sitting judge. Yet,
despite at least three U.S. Supreme Court decisions unequivocally
establishing the right of detainees to challenge the factual and legal basis
for their detention, Judge Fahl seems to think that detainee
litigation--including the military commissions he is deploying to Guantanamo
to support--are nothing more than lawfare, or the use of law and legal
proceedings by detainees and their counsel, including lawyers like me, as a
form of asymmetric warfare.
If Judge Fahl’s swipe at detainees and their counsel sounds familiar, there
is a good reason. Indeed, his remarks caught not only my attention but the
attention of the Guantanamo Bar Association, an informal network of about
500 lawyers from across the United States who represent Guantanamo
detainees. (CCR has coordinated the "Gitmo Bar" since our 2004 victory
before the Supreme Court in Rasul v. Bush, which first established the right
of detainees to challenge the legality of their detention through habeas
corpus in federal court.) We have seen this before. In 2007, senior defense
department official Charles "Cully" Stimson attacked lawyers representing
Guantanamo detainees, suggesting that commercial clients of corporate law
firms who donate their time to representing these men and boys held for
years without charge or trial might want to take their paying work
elsewhere. To the credit of these firms, including my prior law firm, Kramer
Levin, they stuck by their detainee clients, and in many cases have
continued to represent them for free for more than a decade. Stimson,
however, lost his Pentagon job as a result of his imprudent remarks.
None of this is to say that Judge Fahl should lose his job for voicing his
personal views, however craven and ill-informed. The point is that, after
nearly fifteen years of litigating Guantanamo detainee cases, government
officials like him come and go, but what never seems to change--despite the
evidence--is that the detainees lose. They continue to be held indefinitely
in an offshore prison, nearly all without charge or trial, and are demonized
and dehumanized by people who have never met them nor care to meet with
them. And that is why we continue to represent them and challenge the
legality of their detention. We are determined to force the closure of
Guantanamo. If Judge Fahl and others view that as asymmetric warfare, so be
it. We consider it a service to human rights and the rule of law.
