I offered some initial reflections on the Senate Intelligence Committee’s summary of the CIA torture report the day of its release, drawing particular attention to a previously unknown level of brutality and a previously unappreciated level of duplicity. I stand by those comments and note with some irony that even John Yoo, the lawyer who gave the program its legal blessing, has mused that the interrogators may have gone too far.
I also discussed the challenge to constitutional governance raised by torture and its aftermath. There is more to say on this topic, specifically on public examination of government claims, but it requires a bit of personal history.
I was the lead counsel in Rasul v. Bush, the first case in the Supreme Court regarding Guantánamo Bay detainees. My co-counsel and I filed Rasul on behalf of one Australian and three British prisoners in February 2002, shortly after the first detainees arrived at the base.
What many people don’t know is that I had reached out to a number of partners in large private law firms before we filed Rasul, asking if they would be willing to join us. They all turned us down. Some partners said they wanted to help but were constrained by their colleagues, who believed the government’s overheated rhetoric about the men at the base. Such timidity extended far beyond the private bar; even the local affiliate of the American Civil Liberties Union turned us away.
There was one exception, however. Shortly after we filed Rasul, I was contacted by Neil Koslowe and Tom Wilner at the Washington office of Shearman & Sterling, a New York–based multinational law firm. They told me they planned to bring comparable litigation on behalf of a dozen Kuwaiti prisoners and wanted to work together. I will always hold Shearman and its lawyers in particular regard for their willingness to come forward when other firms stood mute.
We won Rasul in 2oo4 and established the right of Guantánamo prisoners to challenge their detention in federal court. After that, scores of firms joined the fray. Many of the leading law firms in the country eventually devoted thousands of pro bono hours to the defense of the prisoners so recently branded by former Secretary of Defense Donald Rumsfeld as the “worst of the worst.” One firm — WilmerHale — led the charge in a second Supreme Court case, Boumediene v. Bush, which put the victory in Rasul on constitutional footing. In time, there were so many lawyers engaged in this work that people took to calling us the Guantánamo Bay Bar Association.
These lawyers quickly discovered what all who challenge the claims of the state come to realize: Talk is cheap, and the government invariably oversells its case. Far from being the worst of the worst, the prisoners at Guantánamo were, by and large, anonymous functionaries, no more menacing than a group of randomly selected bureaucrats toiling in the bowels of the Department of Agriculture.
This of course explains why hundreds of prisoners were released by President George W. Bush and dozens more by President Barack Obama. It also explains why scores at the base have been cleared for transfer by both administrations and would be gone, had partisan politics not poisoned the well.
From this experience, the interested public gradually absorbed the lesson that civil rights and criminal defense lawyers have known since the first of us became members of the bar: the state cannot be trusted and, left unchecked, will effortlessly steal a man’s liberties on the basis of the most careless rumors.
Then came September 2006, when Bush emptied the black sites and transferred the so-called high-value detainees to Guantánamo — a group that included Zain Abidin Mohammed Husain Abu Zubaydah, the first prisoner cast into a black site and the first to be tortured by the Central Intelligence Agency.
The Bush administration described Abu Zubaydah in the darkest prose. He was, it warned, “a key terrorist recruiter, an operational planner and a member of Osama bin Laden’s inner circle,” “one of the top [Al-Qaeda] operatives plotting and planning death and destruction on the United States,” “a top Al-Qaeda leader” and “Al-Qaeda’s No. 3 man.”
It was Abu Zubaydah’s torture that prompted the CIA to seek legal approval for its so-called enhanced interrogation techniques. CIA operatives forwarded what purported to be a psychological evaluation of Abu Zubaydah to John Yoo, who used it to draft the infamous torture memo that authorized the use of the techniques. That evaluation has now been made public (available here), and anyone who wants can read what the CIA wrote about my client to justify his torture.
The Center for Constitutional Rights asked Brent Mickum (a lawyer who started working on these cases after Rasul) and me if we would represent Abu Zubaydah, and we agreed. But knowing the amount of work involved in a case like this, I once again reached out to partners in large private firms and asked if they would be willing to join us. Once again, we were turned down.
It was apparently one thing to defend a nobody at Guantánamo but something else to represent somebody the government claimed to be a top Al-Qaeda operative. The lesson, so recently absorbed, had completely drained away.
As those who have been following this story now know, the Senate report concluded unequivocally that the CIA’s representations about Abu Zubaydah were “inaccurate.” It appears that all the key allegations about him have been discredited or withdrawn. For instance, the CIA wrote in the psychological evaluation that it needed to torture him because he was “well-versed” in counterinterrogation and “wrote Al-Qaeda’s manual on resistance techniques.”
But the Senate, after reviewing more than 6 million pages, “found no information to support these claims.” Likewise, the CIA claimed Abu Zubaydah took part in “every major terrorist operation carried out by Al-Qaeda.” Not so. “CIA records,” the report concludes, “do not support these claims.” And on page 410 of the summary of the report is the CIA’s frank admission “that Abu Zubaydah was not a member of Al-Qaeda.”
Since the release of the summary, many people have once again drawn the lesson that government cannot be trusted. But the more accurate moral of all this seems to be that we learn our lessons too late and do not take them to heart. I fear that the need to trust the government is simply too strong and that when the next time comes, most people will be just as willing to suspend disbelief. Years later, when time has worked its transformative magic, we will chastise our former selves for a fawning and frightened deference to the state and boast that we know better. You will forgive me if I have my doubts.