By Frank Deale, Associate Professor of Law at CUNY School of Law

Any assessment of the legacy of Guantanamo must start with the tragic events of 9/11. On that day, thousands of Americans were killed in a tragic assault on their everyday lives. Many of us lost loved ones on that day or know people who did. The week before 9/11, I was in the World Trade Center (WTC) with my seven-year-old daughter, bringing her home from one of her early days at child care. Three days before, we were looking at an apartment on John Street, right in the vicinity of the WTC. As we left that building, I thought of how privileged those folks were to be settled in such a nice area of New York. Even today I wonder where those folks are, who wished to sell us an apartment that evening.

Ascertaining the legacy of these extraordinary events over 20 years later is to aim at a moving target. Only recently, in 2021, have all of the U.S. troops been brought home from Afghanistan, bringing to a seeming conclusion the longest war in U.S. history, and yet this decision of President Biden to withdraw was met with withering criticism. There was bipartisan support and criticism of President Biden’s decision. Detainees are still held in Guantanamo and as I write, are subject to ongoing military judicial proceedings that are so biased that the chief prosecutor for the military resigned and agreed to testify for one of the detainees. 

Nonetheless, three aspects of an emerging legacy begin to appear, which I shall discuss below. They are: (1) the changing nature of warfare as unleashed by the war on terror; (2) the continuing efficacy of the federal courts to review the detention of those held by federal authorities in violation of federal law, and to provide remedies to hold accountable officials for violations of constitutional rights in time of war; and (3) the role of lawyers in challenging legally sanctioned state violence. 

The Changing Nature of Warfare Unleashed by the War on Terror

The major question for the United States after 9/11 was whether to treat this assault as a crime or as an act of war. It should not have been a difficult decision. How does a state “declare war” on an act committed by private citizens? Moreover, this was not the first time that the WTC had been attacked. After a bombing in the garage in 1993, the U.S. utilized the extradition process to get jurisdiction over suspects abroad, and brought prosecutions in Federal Court that resulted in the conviction of those responsible. With 9/11, however,  after prompting by former President George Bush, the Congress of the United States, in less than two weeks, adopted a Resolution taking the U.S. into a state of war. This Resolution authorized President Bush 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, or harbored such organizations or persons, in order to prevent any future acts of international terrorism.” This statutory authorization of military force was a deviation from the tendency of U.S. Presidents to conduct war in the absence of Congressional approval, as required by the War Powers Resolution, in El Salvador, the Persian Gulf, Yugoslavia, Iraq, and numerous other locations. But this attempt to give the War on Terror a legal foundation should not confuse us. In a world order truly based on principles of law and justice, rather than power and violence, the U.S. would have been required to use its influence and incentives to pursue established legal mechanisms to bring the perpetrators of the 9/11 crimes to the United States meaningful judicial process.  

Even though all of the suspects responsible for the plane hijackings were from Saudi Arabia, a longtime ally, the U.S. acted swiftly to move two dozen members of the family of Osama Bin Laden, the alleged mastermind of the attack, out of the U.S., where some were attending school,  and back to Saudi Arabia to ensure their safety. Simultaneously, the U.S. began a massive bombing campaign against the people of Afghanistan, and ultimately Iraq, even though there was no conclusive evidence that the peoples of those countries had anything to do with the planning or execution of the events of 9/11. And, of course, the country where Bin Laden was hunted down and assassinated was neither Iraq nor Afghanistan, but Pakistan, another troublesome ally of the US. Yet, notwithstanding these noteworthy infelicities, the worldwide surveillance apparatus of the U.S. kicked into high gear, subjecting people all of the world to drone spying, missiles, and bomb attacks, in the newly instigated “war on terror.”

In a startling choice of words that stunned the world, George Bush actually spoke of a “crusade” under which individuals from all over the world were rounded up and detained at Guantanamo, that convenient offshore dumping ground, previously known, infamously, as an “HIV Prison Camp” when it served as a detention center for Haitian refugees. These 1990s detainees were interdicted on the high seas as they undertook dangerous journeys, aiming for the US, to seek relief from the chaotic economic and political conditions in the aftermath of a coup that removed the popular and first ever democratically elected President Bertrand Aristide. But the 9/11-connected suspects were not just taken to Guantanamo. Contrary to all notions of a presumption of innocence, others were taken to “black box” sites in numerous countries, many of which have still yet to be determined, where they were subjected to brutal and often fatal interrogations. Those who survived these deadly assaults were kept in brutal conditions of confinement, were not provided with charges, attorneys, or any kind of process for seeking their release. Many of those picked up and detained were seized based upon unverified information provided by bounty hunters who were paid by the U.S. for providing such information.

The suppression of rights also targeted those who spoke out against the war on terror.  Barbara Lee, the Black woman representative from California who cast the only vote against the Authorization for the Use of Military Force (AUMF) resolution, received numerous death threats because of her vote. When Ward Churchill, Native American scholar and Professor of Ethnic Studies at University of Colorado asserted that 9/11 was a consequence of violent U.S. foreign policy abroad and that the 2,997 people killed at the WTC were “little Eichmans,” the governor of Colorado called for Churchill’s resignation, setting off a process which resulted in Churchill’s termination from the University of Colorado for “academic misconduct and plagiarism,” a decision upheld by the courts despite Churchill’s First Amendment claims.

In the process of launching its war on terror, the U.S. also initiated a whole new form of waging war. Death from the skies by unmanned military vehicles, now known as drone warfare, represents a major step backward for any legal efforts to regulate the never-ending state of war being waged by the United States against non-nuclear peoples. Assassinations have become standard operating procedure rather than capturing suspects and subjecting them to trial,  and this rule even extends to American citizens. We will never know how many non-US people have been killed by the war on terror, but it certainly encompasses large numbers of the innocent. The U.S. seems never to have understood that Muslims in the United States and all over the world condemned the 9/11 attackers. There were international mechanisms in place to allow the U.S. to track down those responsible without an immediate resort to a bombing campaign. And regarding the assassination of Bin Laden – it may be true that capturing him and subjecting him to trial rather than assassination would have turned him into a “political prisoner,” but if so, the actions of the U.S. in its war on terror only assured this outcome. This is yet another instance of how the government of the U.S. seeks to “create its own reality.”  

The Continuing Efficacy of the Federal Courts to Review the Detention of those Held by Federal Authorities in Violation of Federal Law 

One legacy of this era is that those detained at Guantanamo are entitled to some form of Article III judicial review. The Bush Administration actually thought that it could not only illegally seize people outside the jurisdiction of the US, bring them bound and gagged to foreign destinations, torture them to the point of death, not provide them with any charges or legal representation, but then deny them of any type of meaningful judicial review. The audacity of such claims is nothing short of breathtaking. Even the regressive English Common Law provided rights to challenge such executive conduct by means of the writ of habeas corpus, which was not only enshrined in the language of the Constitution of the United States, but was codified in two federal statutes and many state jurisdictions. As one of the rare procedures where a single U.S. district court judge can effectively reverse a state Supreme Court, the writ of habeas corpus has been utilized to free those incarcerated by state and federal authorities in violation of the Constitution of the United States and federal law.

Yet it was exactly because of this effectiveness that the states’ rights counterrevolution of the 1990s targeted habeas, rendering it practically ineffective through passage of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). That statute was designed to insulate state court rulings on federal law from federal habeas review if those readings were “reasonable” and not directly “contrary” to Supreme Court precedent. This, along with a blunderbuss of other provisions Congress rendered the “great writ” into a nullity. Interestingly, AEDPA was passed in the aftermath of the 1993 World Trade Center bombing–hence its name and focus.

After Congress passed the AEDPA, and a Democratic President signed this regressive legislation, it perhaps should not have been surprising that President George W. Bush and Vice President Dick Cheney argued that they could keep the detainees at Guantanamo in an indeterminate legal netherworld. Yet in a series of extraordinary cases, beginning with Rasul v. Bush (2004), the Supreme Court held that the detainees could in fact file habeas petitions seeking their release, and that the detainees had to be accorded due process via a meaningful hearing. And after Congress, in response to these decisions, enacted further legislation barring detainees from filing habeas petitions in federal court, and forcing them into military commission trials with extremely limited appeal rights, the Court yet again ruled in favor of the detainees and declared the Congressional acts unconstitutional as an unlawful suspension of the writ of habeas corpus. It is somewhat remarkable that the Supreme Court injected a little life into habeas after all that Congress has done to bury it. Yet it was only on October 21, 2021 that a detainee was granted relief from detention at Guantanamo as the result of a habeas petition. After 14 years in detention, Asadullah Haroon Gul, who was picked up in Afghanistan in 2007 and kept nine years without the opportunity to see a lawyer was ordered to be released by a federal judge in Washington, DC.

One should not conclude from the foregoing discussion that the Muslim roundups and detentions only took place outside of the US. Hundreds were also picked up in the US, and detained by the federal authorities in high-security prisons where they were subject to brutal and degrading conditions. They were deprived of rights under the Constitution, so they brought litigation alleging that their detention and treatment violated their rights to be free from racial and religious discrimination, and that they were denied elementary due process. Although many of these detainees were held because of alleged visa violations, they were actually being kept and mistreated because of federal concern that they harbored terrorist connections.

When the leading case challenging these round-ups as civil rights violations made it to the Supreme Court, the Court disregarded the plaintiffs’ allegations as “implausible” and dismissed the case. Rather than credit the plaintiffs’ allegations, the Court chose instead to believe that the U.S. government simply “sought to keep suspected terrorists in the most secure conditions available until the suspects could be cleared of terrorist activity.” In failing to credit the plaintiffs’ claims and instead accepting the defendants’ version of the facts, the Court upended 50 years of established pleading rules by seizing upon stricter standards initially put in place to judge complex antitrust proceedings and applying them to constitutional civil rights claims, making it harder for plaintiffs to have their day in court.

That the Supreme Court was particularly dedicated to fencing out Muslim detainee civil rights claims is evidenced by later developments in the same case. The plaintiffs amended their claims in the case to add additional factual information verifying the claims that the Court earlier found “implausible.” They were able to do this because the Department of Justice had filed a report after the Supreme Court decision substantiating the treatment that the plaintiffs’ had originally alleged. Since it was no longer possible for the Court to write off the allegations as “implausible,” the Court more clearly stated what was on its mind, namely that the claims must be dismissed because they “challenge the confinement conditions imposed on illegal aliens pursuant to a high-level executive policy created in the wake of a major terrorist attack on American soil.” This decision took yet another bite out of an important long-standing remedy necessary to hold federal officials accountable for violating constitutional rights while acting under color of federal law.

Once we put together the Guantanamo era habeas and civil rights cases what they amount to is this: if the U.S. abducts you from your home country and removes you to some unknown destination where you are detained, tortured, and otherwise abused for an indefinite period with no charges filed against you, and held incommunicado with no counsel assigned to you, you can, if you get a lawyer, file a habeas corpus petition seeking your release. However, if you survive this ordeal, under no circumstances will you be able to hold accountable the officials who arranged for your abduction, detention, and abusive treatment even though such treatment violates all manner of domestic and international norms. This is a legacy of which the U.S. should be deeply ashamed.

But this is not all. 

An Extraordinary Mobilization of Lawyers to Represent Guantanamo Detainees

Finally, any legacy of Guantanamo and 9/11 has to recognize the extraordinary mobilization on behalf of lawyers throughout the world to voluntarily assume legal representation of these numerous individuals held in detention off the shores of the U.S. without charges and in violation not just of the Constitution of the United States, but also of international law. 

Without compensation and often at great expense, not knowing who their client was and not even able to communicate in a common language, lawyers stepped up to the highest traditions of the profession to defend those beaten down by the USgovernment and the mass media. Much of this work was initiated by the Center for Constitutional Rights and Michael Ratner, undertaking a role similar to that under which the organization got started: mobilizing lawyers to go south in the 1960s to assist the Black liberation movements taking place there. Michael Ratner was gracious enough to come to my Constitutional Structures class in the midst of this extraordinary campaign to explain it to CUNY Law students. 

Of course there were some government naysayers who condemned the entire project, such as Charles D. Stimson, Pentagon lawyer who denounced volunteers for “representing terrorists.”  Little did he know that the U.S. was actually detaining artists and writers. Stimson learned the hard way. After a “torrent of anger from lawyers, legal ethics specialists and bar association officials, who said that his comments were repellent and displayed an ignorance of the duties of lawyers to represent people in legal trouble” Stimson left his position at the Pentagon claiming that the controversy had “hampered his ability to be effective at his job.”

This blog post goes to press to mark the 20^th Anniversary of the opening of the detention center at Guantanamo Bay. Yet, how do we mark the anniversary of a tragic mistake? The United States should move immediately to rectify the harms that it has caused and pay compensation to its victims. This means, at a minimum, the repatriation of those who are currently being held and the payment of damages to those who were unlawfully detained and tortured. Britain has taken the lead in this direction and the United States should follow.