The Court of Public Opinion

In January 2002, President George W. Bush announced the opening of the prison in Guantánamo Bay.  I was horrified.  I had been working for twenty years representing prisoners on Death Row in the Deep South – men, women and sometimes children who were so hated that society wanted to strap them down for execution.   Yet at least each of these people had an open trial before being condemned.  In Guantánamo, selected prisoners would be liable for the death penalty in specially created, substantially secret military tribunals, where torture evidence would be admissible.  The rest of the prisoners, along with anyone fortunate enough to be acquitted, could be held without trial until “the end of the War on Terror” – defined as a global conflict that might last a generation. 

The attack on September 11th had been a monstrous crime, but the idea that the first casualty in a war for democracy would be the rule of law seemed reprehensible as well.  That Bush planned to carry his plan forward on a US naval base on the island of Cuba, which under Castro had long been the focus of American criticism for its human rights record, carried the hypocrisy one step beyond.  Hypocrisy would inevitably foment hatred, and the goodwill that Americans enjoyed as the victims of the September 11th attacks would soon be expended.

I assumed that everyone in the legal community would be similarly outraged, and would line up to ensure that this aberration was stamped out.  I was naïve.  It proved very difficult to find allies, and when we first sued to open the prison up to the law, on February 19th, 2002, our’s was a very flimsy coalition of four lawyers, tagged as traitors by the American media. 

The Guantánamo litigation crawled through the courts, sometimes in reverse gear, for two and a half years before the Supreme Court ruled that lawyers could represent the prisoners.  Now, more than 2,000 days later, the case has not moved on very far.  The Bush Administration continues to argue that the prisoners have no legal rights at all -- saying, for example, hat “it must be remembered that there is no right to counsel in this context.”

U.S.  environmental laws do apply in Guantánamo Bay, so if you were one of the iguanas that roam the base and a soldier in his Humvee ran you over, he would be liable to ten years in prison.  On the other hand, if you were a human prisoner without an American passport you would have no such protection.  In the Supreme Court we suggested that our clients should at least enjoy equal rights with iguanas.

Just as a death penalty appeal can drag on for many years in the U.S., there is little chance that a judge will order the release of any Guantánamo prisoner this decade – indeed, at least 80 prisoners cleared for release by the U.S. military in 2006 remain in captivity.  Nonetheless more than 400 prisoners have been released, mainly as a result of public rather than legal pressure – the court of public opinion outperforming the court of law.

I have represented more than 50 of the prisoners in Guantánamo, filing endless briefs arguing that they should have access to a court of law. I have written a book about them because writing legal briefs is not enough, and the true story of Guantánamo Bay is still not coming out in the mainstream press. The U.S. Department of Defense has a huge publicity office that constantly churns out PR material -- sadly, much of it false or misleading. 

For example, the Pentagon told BBC Radio 4 that there were no juveniles in the prison.  In common with as many as sixty prisoners, my client Mohammed el Gharani was under age when an informant turned him over to the U.S., as a suspicious Arab in Pakistan.  Mohammed had never been to Afghanistan, and he was only fourteen.  The informant collected a $5,000 bounty, and supplied the gullible American paymaster with a tall tale: Mohammed was in his mid-twenties, and had supposedly been a member of “the London Al Qaida cell” in 1998.  Despite its much vaunted intelligence programme, the U.S. military never bothered to get Mohammed’s birth certificate. We gave it to them:  it showed them that in1998, the kid was only eleven.  He had never traveled outside Saudi Arabia.

I struggle to do justice to the prisoners’ stories in the book, particularly the eight British residents who remain there.  Politically, perhaps we are getting somewhere, though.  There was very welcome movement when finally, last week, the British government agreed to stand up for five of them.

And what does the lawlessness of this prison achieve?  A CIA agent said in 2004 that for each prisoner held in Guantánamo the prison had inspired ten Muslims to want to kill Americans.  Three years on, the number incensed to violence is probably far greater.  How has this abominable experiment made the world safer?

Torture and abuse do not save lives.  Indeed, the most important lesson of the ‘War on Terror’ is that the enforcement of human rights is the most effective anti-terrorism weapon in our arsenal.  Our politicians – from President Bush to Tony Blair – get the wrong answer because they ask the wrong question.  Their obligation is to make society safer as a whole, not simply to try to prevent a particular crime from happening in the future.  Thus their duty is to avoid inspiring hatred as much as it is to prevent the hateful acts.  It is a task that they have singularly failed to fulfill.