Getting your friends into trouble

Much has been made – and rightly so – of the catastrophic consequences of President George W. Bush’s tactics in his War on Terror.

Abu Ghraib is perhaps the poster child for everything that has gone wrong. Guantánamo Bay is an iconic symbol of how the Bush administration continues to squander the reservoir of goodwill that America enjoyed in the wake of September 11.

President Bush’s strategies have, for the most part, been pointless as well as uncivilized. There is certainly no evidence that the sexual humiliation of Muslims in Abu Ghraib contributed to Iraq’s security. The periodic proclamations from Guantánamo Bay that the U.S. military was harvesting “highly significant intelligence” have always seemed incredible to those of us who have been there, and provoke increasing incredulity as the prisoners complete their fourth year of incommunicado detention.

Yet there is ample evidence that these policies have inspired global rage. American preaching about the rule of law is seen as hypocritical. The large iguana population in Guantánamo Bay enjoys a panoply of rights under the United States environmental laws; not so the human beings, who are inevitably all Muslims.

The outrage is understandable, and very sad. Hypocrisy is the yeast that ferments hatred. When the Bush administration left the rule of law without a pulse in Guantánamo, it did not escape notice that the lawless enclave had been located on Fidel Castro’s Cuba; the U.S. has criticized Castro for 45 years for violating human rights.

There are worse outrages that have yet to float, like a kind of filthy scum, to the surface of public attention. We know there are Abu Ghraib videotapes and photographs that have not yet seen the light of day. We know that the bigger the suspected fish, the worse the treatment.

The nobody-prisoners in Abu Ghraib have been treated shamefully, so what has happened to the “big names” in Al Qaeda who are in U.S. custody – Khalid Sheikh Mohammed, Abu Zubaydah, Ramzi bin al Shibh, and many others?

These men are held in secret prisons much further from public view than even Guantánamo. They have no legal rights. The Bush Administration has publicly stated that they cannot be exposed to a public court as witnesses, because it would expose the treatment inflicted upon them. We cannot know where they are, but it is a safe bet that they would gladly swap their secret cell for one in Guantánamo.

The nightmare continues – for the torture victims, their families, Muslims and, ultimately, for Americans. The Bush Administration has demeaned American principles and endangered American lives by fostering such hatred around the world.

Criticism is all very well, but it is sometimes unproductive. We should always seek out a silver lining no matter how dark the clouds. There are two positive lights in the gloom here.

First, by depriving hundreds of Guantánamo prisoners of all legal rights, the Bush Administration has mobilized a coalition of more than 500 American lawyers, some from the most powerful law firms in the world, all offended at the dissolution of the rule of law.

Second, despite everything that has happened, the US remains squeamish about torture, and has preferred to outsource its worst excesses. This has exposed Bush’s dubious friends to liability for the torture they have committed, bringing to light not just their vicious abuse of suspected terrorists, but also that meted out to average citizens, whose plight has rarely before received notice.

These two factors will have a long-lasting and positive impact on the rule of law in various repressive regimes around the world.

The coalition of American lawyers is a significant new weapon in the arsenal of human rights, and particularly the rights of Muslims. Most Americans had never heard of East Turkestan, let alone its Uighur Muslim separatist movement, until the US military locked up 22 Uighurs in Guantánamo Bay. It is hard to make a case that these men are enemies of the United States. They don’t like the communist regime in China, which stole their homeland fifty years ago, but neither do most Americans.

The United States designed the Combatant Status Review Tribunal (CSRT) process to rubber stamp the “multiple layers of review” that, Donald Rumsfeld boasted, ensured that each prisoner in Guantánamo Bay was the “worst of the worst.” But something very different happened when the CSRT considered the case of the Uighurs.

The panel of three military officers found several of these men innocent of the allegations against them. Despite this, the United States continued to hold them prisoner in Guantánamo. The leading lawyer on their case, P. Sabin Willett, is a senior partner in the silk-stocking law firm of Bingham McCutchen, described as a “legal powerhouse” with over 950 lawyers in eleven offices around the world.

Willett was so angry at the way his innocent clients have been treated that he short-circuited the normal legal procedures to take their case directly to the Supreme Court. While the Supreme Court declined to take the case straight away, the publicity generated about the Uighurs forced the United States’ hand. On May 5, the United States freed the innocent Uighurs, sending the men to live in Albania under the auspices of the United Nations High Commissioner for Refugees.

The lawyers in this coalition recognize that a large proportion of their role is political, rather than legal. There have been courtroom victories by the American legal coalition, but they were slow in coming, and have yet to result in the release of any prisoners.

The first success was the Rasul decision, where the Supreme Court determined that prisoners had habeas corpus rights; the second was the Al Odah case, where a federal district judge found the CSRT proceedings inadequate, a decision currently pending review in the Court of Appeals; and a third was the Hamdan declaration that the military commissions at Guantánamo were illegal, reversed on appeal, with resolution by the Supreme Court expected before the end of the term in June 2006.

As of May 5, 2006, more than 270 prisoners have been freed from Guantánamo Bay. None has been released by court order. While, as the saying goes, statistics do not tell the whole story, there is nothing so emphatic as zero. As seen in the case of the Uighurs, the lesson of this particular figure is that political pressure is often more important than court orders.

This political pressure has often been generated outside the United States. The prisoners in Guantánamo may be lonely, powerless and alone, but some of them found themselves armed with mighty law firms that have rounded up support from the millions of citizens of their home countries. Thus, partners in major firms have traveled across the globe in support of their clients.

Stephen Oleskey is a partner with Wilmer Hale, a firm with over 1,000 lawyers. He and his colleagues have been to Bosnia on more than one occasion on behalf of their six Bosnian clients. The Dechert firm (900 lawyers in 18 cities) has sent counsel to Afghanistan. The Dorsey & Whitney firm (650 lawyers in 5 countries) has sent counsel to Bahrain on behalf of their clients. Shearman & Stirling partners (1,000 lawyers in 19 cities) have been to Kuwait. Allen & Overy has 4900 staff in 25 cities in 19 countries. They have been to Yemen on more than one occasion, joined by lawyers from Covington & Burling (520 lawyers, 3 countries). The list could go on and on.

Virtually all of this work is done pro bono – at no cost to the clients. Many of these lawyers are relatively conservative, some are Republicans, yet all believe that they are defending the American way of life as much as they are defending their clients. And they are putting their money and time where their mouths are.

The legal guns of these law firms were initially trained on the Bush Administration in the US courts. However, they gradually turned their sights on other players in the process. President Bush has referred to a “coalition of the willing,” and told the world, “You’re either with us, or you’re against us.” Likewise, these firms remind foreign governments that they are either with, or against, the rule of law.

Consider rendition, the shady and sordid practice of shipping prisoners to foreign countries for interrogation, torture, and abuse. Renditions are hardly novel. The Bush administration has repeatedly defended the practice by saying that it has been going on for many years.

What is new is the breadth of its use, and the attention that it has been getting. Michael Scheuer, the operative who is said to have founded the CIA renditions unit, said recently that the programme had been a disaster, albeit not in the way that a civil libertarian might imagine. Thomas Kleine-Brockhoff, who was conducting the interview, asked him to describe the disaster: “The fact that everything was made public,” Scheuer replied.

This same disaster is on a close horizon for the loyal allies of the US who did this dirty work: Everything is about to be made public. The Bush Administration denies that torture takes place. Sad to say, this is flatly false. There is solid evidence that the United States has rendered prisoners to a number of states to face torture in the years since September 11, 2001.

The biggest challenge to stamping out this process is assembling the facts and bringing them to light. However, Guantánamo Bay provides a distillation of prisoners who have been rendered around the world. For example, my client Binyam Mohamed is a British refugee from Ethiopia who was taken to Morocco where his torturers – led by a man called Marwan – took a razor blade to his penis over and over again, for 18 months.

The Bush administration will protest that these prisoners were not rendered for torture. It is a sorry comment on the state of American credibility that the overwhelming majority of the world will believe my clients over the President of the United States on this point. As well they should. We have been careful to check their credibility.

For example, I had Binyam tell me his story, including the precise dates when he was taken from Pakistan to Morocco (July 21, 2002) and back to Kabul (January 21, 2004). When my notes had been declassified by the U.S. censors, I cross-checked those dates with the journalist Stephen Grey, who was holding flight logs for some 30,000 CIA flights. Binyam’s story was corroborated by the black and white data (not to mention the scars I have seen with my own eyes).

At this point, the Bush administration is forced to scramble for alternative explanations, none of which pass the laugh test. Clearly, Binyam was not taken to Morocco for a Club Med vacation. He is not Moroccan, had never been there before, and had nothing to do with the country. So why did a CIA plane take him there, if not for interrogation? And why, when his first language is English, would they take him to an Arabic-speaking country for interrogation if it were not for some “enhanced interrogation techniques”? Common sense leads to only one conclusion.

We are gradually exposing a series of other cases, developing incontrovertible evidence that each person was rendered. Mamdouh Habib, an Australian, was rendered to Egypt. Ali Al-Haj Shergawi and Hassan bin Attash (then a minor) were both rendered to Jordan. And so on.

Rendition is a horrific practice. There are common threads that run through these cases: One, that they were tortured at the behest of the United States. Two, that we know all the gruesome details of their torture. Three, that the prisoners have lawyers to whom they can provide authorizations to sue the perpetrators.

A fourth factor is very important: The Convention Against Torture (CAT). Article 3(1) prohibits state parties (including the United States) from transferring a person “to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.”

The CAT also, obviously, forbids the torture itself. As General Pinochet found to his discomfort, there is an impressive array of authority demonstrating that allegations of “torture” are subject to universal jurisdiction. In other words, if the Moroccans conspire with the Americans to torture Binyam Mohamed in Temara prison, then they can all find themselves facing criminal and civil litigation in London, or anywhere else in the world.

By outsourcing its torture to compliant allies, the United States has exposed them to being sued all around the world. The perpetrators of injustice have the hot breath of powerful American litigators on the back of their necks. Indeed, while the Bush Administration has worked hard to insulate its own actions from judicial review, they have sold their allies down the river.

For example, the Detainee Treatment Act of 2005 provides that no prisoner who has been tortured may bring any “action against the United States or its agents relating to any aspect of the detention by the Department of Defense of an alien at Guantánamo Bay, Cuba….” This exempts Americans from being sued in the United States, but it does not exempt Moroccans or any other nationality.

Paradoxically, the Bush Administration’s hostility to the American judiciary has provoked another Republican anathema – intervention by foreign courts. If the US courts had provided swift justice, there would have been far less call for action in other countries. Because the US courts were so dilatory, litigation has been spawned across the world.

Consider the experience in the United Kingdom. This is the closest ally to the Bush Administration, it is over 4,000 miles from the Guantánamo problem, and all the British citizens were released by January 2005. Nevertheless, there continues to be almost as much influential litigation in the British courts as there has been in the United States.

Cases have been brought on the British government’s obligation to intervene on behalf of British nationals in Guantánamo Bay, on the requirement that David Hicks be recognized as a British national (and therefore be accorded similar protections), and on the responsibility to assist British residents.

The next several months will see other litigation sprouting up in Britain, with President Bush and his allies held responsible for their illegal actions. Binyam Mohamed, for example, will sue the Americans and the Moroccans in a British court, for the torture that has been used on him.

Because it is important to corroborate his complaints, his legal team has already begun the process of identifying and interviewing other victims of Moroccan torture. They will be witnesses, and potentially plaintiffs, against the Moroccan regime. Thus, President Bush has not only brought the wrath of the British courts down on Morocco because he outsourced Binyam Mohamed’s torture, he has also inspired a battery of Western lawyers to represent the hitherto silent sufferers, the Moroccan victims of their own government.

Mamdouh Habib will be the lead plaintiff against the torturous practices of Egypt. Ali Al-Haj Shergawi and Hassan bin Attash will doubtless bring litigation to close to torture chambers of Jordan. Each lawsuit can be brought in the court of the prisoner’s choosing, which will indubitably not be in the United States. Once again, then, the excesses of the Bush Administration have exposed his sordid allies to international reprobation. Gradually, as lawyers get access to the rendition victims left littered around the world by the U.S. security services, the torture chambers that have existed for decades will be subjected to the harsh glare of international litigation.

The CAT is the elephant on the table. International arrest warrants and civilian judgments will await Americans and their partners in crime wherever they may travel abroad.

However, the CAT only provides the first port of call in terms of the international legal exposure of torturers. Consider another aspect of Mr. Mohamed’s abuse: He was held in the Dark Prison in Kabul and blasted with cacophonous music for five months. For twenty days straight, for 24 hours a day, the Americans running the prison blared Eminem at him. Likewise, the Tipton Three (British prisoners freed from Guantánamo in 2004) were subjected by the Americans to days on end of Bruce Springsteen singing Born in the USA at hyper-volume.

Playing music in a prison without paying royalties violates copyright law. Doing so to psychologically break a prisoner tramples on the artist’s moral rights to his music (which one rather doubts he wrote for use in torture chambers). Eminem and Springsteen (and many others) have the right to claim payment for each time their song was played, and can seek damages for the abuse of their music. This will involve litigation, which will in turn include discovery.

Someone in the U.S. military is going to have to explain how often each song was played, and why that particular music was used to torture people. (Apart from anything else, surely any normal person would crack far quicker if exposed to Country & Western tunes.)

Because the illegalities by the United States and its allies are so widespread, the nature and scope of litigation is virtually unlimited. For example, when the last four British nationals (Feroz Abbasi, Moazzam Begg, Richard Belmar and Martin Mubanga) were repatriated from Guantánamo in January 2005, British Home Secretary Charles Clarke immediately seized their passports. This was a shoddy act of political opportunism, designed to mollify the response Clarke apparently expected of the right-wing.

Because he based this unilateral action on evidence provided by the United States (presumably including evidence abused out of the prisoners and others), and because he did not give the four men the opportunity to contest these allegations, he immediately exposed himself to being sued. However, it was also a foolish gift to those who might wish to expose the excesses of Guantánamo Bay to judicial review, over something as relatively insignificant as a passport.

The same may be true of Jamal Kiyemba. He was sent to Uganda on February 9, 2006, but he had barely touched down there before Charles Clarke had, unilaterally and without notice to Mr. Kiyemba or his lawyers, entered an order banning him from the UK (and thus from his family, all of whom live in England) in perpetuity.

Again, it would seem that this action was taken in part based on Clarke’s reliance on intelligence from the US, extracted from witnesses by coercion. That evidence was so weak that Uganda has since freed Mr. Kiyemba, charging him with no crime whatsoever. What does Mr. Kiyemba have to lose by suing the British government over this? He cannot be any worse off than he is today, so Guantánamo will find itself on trial once again, in a British forum.

By definition, each foreign country provides a unique forum for litigation against the excesses of the Bush programme. Consider the issue of defamation. The US military has not provided the prisoners with a meaningful court in Guantánamo to contest their guilt. For three years, the US military did not even tell the prisoners what the allegations were against them. Now, however, the military has recognized that it is losing the battle for the hearts and minds of the world. Therefore, very late in the day, the military began fighting back, clumsily issuing press releases seeking to tar the prisoners as terrorists.

In the case of Omar Deghayes, a British refugee from Col. Gaddafy’s Libya, the US military has publicly stated that it has an Islamic training videotape proving that Mr. Deghayes was in Chechnya, brandishing a Kalashnikov. Mr. Deghayes denied ever having been to Chechnya, but the US military refused to provide him – or me, as his lawyer – with the videotape. In 2004, though, the military did give the videotape to the British Broadcasting Corporation (BBC), subtitling frames of a bearded radical with the name “Mr. Deghayes”.

It turns out that Mr. Deghayes was telling the truth. Anyone who knew Mr. Deghayes could have said that the radical was not him. Indeed, the image on the tape has now been positively identified as Abu Walid, unsurprisingly a Chechen rebel, who died in April 2004. Thus, the US military was defaming Mr. Deghayes’ name.

Mr. Deghayes can elect where to bring the defamation lawsuit. Certainly, such litigation would not be brought in the US, where the Detainee Treatment Act has deprived the clients of a forum, and First Amendment right to free speech would anyway set a very high threshold of proof.

However, the British courts would clearly have jurisdiction over Mr. Deghayes’ case – the allegations were published with a view to reaching (indeed, prejudicing) the British audience, and Mr. Deghayes’ reputation is most obviously rooted in the United Kingdom, where he lived since 1986. British law will provide a friendly forum for his case.

There is a great deal of Bush Administration policy that makes even reasonable people angry. However, the greatest tragedy would be for reasonable people to add to the Bush legacy of hatred. Rather, we should accept the opportunity that President Bush has given us. By choosing such sordid bedfellows, Bush has shone a spotlight on some of the darkest torture chambers around the world, and inspired us to bring their operators to justice.

What remains is for lawyers (and others) around the world to band together to help those who are in a position to bring this litigation. It was an American, Margaret Mead, who said, “Never doubt that a small group of thoughtful committed citizens can change the world. Indeed, it is the only thing that ever has.”

This depends, of course, on like-minded people joining the coalition. The most I can hope from contributing this article is to make contact with some readers who would like to join in the struggle for decency.

This article also appeared in the Muslim World Journal.