Resisting guantánamo: Rights at the brink of dehumanization

Northwestern University Law Review

Volumn 103, Issue 4, 2009, Pages 1683-1764

  Ahmad, Muneer I ^a  

^a YALE UNIVERSITY   (United States)

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EID: 76249116774     PISSN: 00293571     EISSN: None     Source Type: Journal    
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References (440)

1. 28 S. Ct. 2229 (2008).
2. See, e.g., Ronald Dworkin, Why It Was a Great Victory, 55 N.Y. REV. BOOKS No. 13, Aug. 14, 2008.
3. 128 S. Ct. at 2277.
4. See infra Part II.B.1.
5. By "rights moment," I mean a moment in history in which the assertion of rights leads to the kind of legal victory that promises transformative change, particularly with regard to marginalized individuals or communities. Although its legacy remains contested, we might think of Brown v. Board of Education as a paradigmatic rights moment. See Brown v. Bd. of Educ., 347 U.S. 483 (1954).
6. As discussed throughout this Article, I represented a Guantánamo prisoner, Omar Khadr, from 2004 until 2007.
7. 542 U.S. 466 (2004).
8. Since Boumediene, district court judges have begun to hold habeas merits proceedings, and in a number of cases, have ordered prisoners released. See, e.g., Boumediene v. Bush, 579 F. Supp. 2d 191 (D.D.C. 2008) (granting writ as to Lakhdar Boumediene, Mohamed Nechla, Hadj Boudella, Mustafa Ait Idir, and Saber Lahmar; denying writ as to Bekacem Bensayah); Bin Mohammed v. Obama, No. 051347, 2009 WL 4015435 (D.D.C. Nov. 19, 2009) (granting writ); Al Rabiah v. United States, No. 02828, 2009 WL 3048434 (D.D.C. Sept. 17, 2009) (granting writ); Barhoumi v. Obama No. 051506, slipop. (D.D.C. Sept. 3, 2009) (denying writ); Al Odah v. United States, No. 02828, 2009 WL 2730489 (D.D.C. Aug. 24, 2009) (denying writ); Al-Adahi v. Obama, No. 05-280, 2009 WL 2584685 (D.D.C. Aug. 21, 2009) (granting writ); Ali Awad v. Obama, No. 05-CV-2379, 2009 WL 2568212 (D.D.C. Aug 12, 2009) (denying writ); Bacha v. Obama, No. 05-2385, 2009 WL 2365846 (D.D.C. July 30, 2009) (granting writ); Al Mutairi v. United States, 644 F. Supp. 2d 78 (D.D.C. 2009) (granting writ); Al Ginco v. Obama, 626 F. Supp. 2d 123 (D.D.C. 2009) (granting writ); Basardh v. Obama, 612 F. Supp. 2d 30 (D.D.C. 2009) (granting writ); Ahmed v. Obama, No. 05-1678, 2009 WL 948712 (D.D.C. Apr. 7, 2009) (granting writ); Hammamy v. Obama, 604 F. Supp. 2d 240 (D.D.C. 2009) (denying writ); Bihani v. Obama, 594 F. Supp. 2d 35 (D.D.C. 2009) (denying writ); Gharani v. Bush, 593 F. Supp. 2d 144 (D.D.C. 2009) (granting writ); Al Alwi v. Bush, 593 F. Supp. 2d 24 (D.D.C. 2008) (denying writ); Sliti v. Bush, 592 F. Supp. 2d 46 (D.D.C. 2008) (denying writ). The case of the Uighurs, a Chinese ethnic minority, has posed special challenges, as their imprisonment has continued despite the district court ordering their release. Their case is now pending before the Supreme Court. See Kiyemba v. Obama, 555 F.3d 1022 (D.D.C. 2009), cert. granted, 2009 WL 935637 (U.S. Oct. 20, 2009) (No. 08-1234). For more information on the Uighurs, see infra note 126.
9. Erwin Chemerinsky, Three Decisions, One Big Victory for Civil Rights, 40 TRIAL 74, 74 (Sept. 2004)
10. Michael Greenberger, A Third Magna Carta, NAT'L. L.J., Aug. 2, 2004, at S7; Linda Greenhouse, Access to Courts, N.Y. TIMES, June 29, 2004, at A1
11. Oona A. Hathaway, Prisoner's Rights: The Court Puts the White House in Its Place, NEWSDAY, June 29, 2004, at A33.
12. Compare Rasul, 542 U.S. 466 (holding that the federal habeas statute, 28 U.S.C. § 2241 (2006), provides for habeas jurisdiction over the detention of Guantánamo prisoners), with Boumediene, 128 S. Ct. 2229 (holding that the habeas-stripping provisions of the Military Commissions Act violated the Suspension Clause, U.S. CONST. art. I, § 9, cl. 2).
13. Review and Disposition of Individuals Detained at the Guantánamo Bay Naval Base and Closure of Detention Facilities," Exec. Order No. 13,492, 74 Fed. Reg. 4897 (Jan. 22, 2009) (providing for the closure of Guantánamo "as soon as practicable, and no later than 1 year from the date of this order"); see also "Ensuring Lawful Interrogations," Exec. Order No. 13,491, 74 Fed. Reg. 4893 (Jan. 22, 2009) (regarding minimum standard of detention for executive detainees, application of Common Article 3 of the Geneva Conventions, repudiation of Bush Administration legal positions on interrogation, and closure of CIA detention facilities).
14. As discussed below, see infra note 126 and accompanying text, federal judges have ordered a small number of prisoners released following the Boumediene decision, and the Executive Branch has complied with these orders.
15. Three developments thus far in the Obama Administration are particularly troubling. First, as discussed in greater detail below, although the new Administration has abandoned the "enemy combatant" terminology on which the Bush Administration's Guantánamo policy was based, it appears to have retained much of the substantive definition. See infra Parts I.D & II.B.1. Second, the Obama Administration has decided to revive the military commission system. See Press Release, The White House Office of the Press Secretary, Statement of President Barack Obama on Military Commissions (May 15, 2009), available at http://www.whitehouse.gov/the_press_office/Statement-of-President-Barack-Obama-on-Military-Commissions. Finally, the Obama Administration has opposed attempts to apply Boumediene to prisoners held outside of Guantánamo. In Al Maqaleh v. Gates, 604 F. Supp. 2d 205 (D.D.C. 2009), Judge John D. Bates extended Boumediene, holding that foreign nationals detained by the United States at its military base in Bagram, Afghanistan, similarly had a constitutional right of habeas corpus. Disappointing many human rights advocates, the Obama Administration sought an interlocutory appeal, which was granted. SeeAl Maqaleh v. Gates, 620 F. Supp. 2d 51 (D.D.C. 2009). This has led some, including the New York Times, to warn that the new Administration's position, denying judicial review of indefinitely detained terrorist suspects, threatens to create a new Guantánamo. See, e.g., Editorial, The Next Guantánamo, N.Y. TIMES, Apr. 13, 2009, at A20.
16. Although my description and analysis of Guantánamo are deeply informed by my experience representing a prisoner there, the fact of representation limits what I am ethically able to disclose. See MODEL RULES OF PROF'L CONDUCT R. 1.6 (Confidentiality of Information) (2004). As such, my reporting on his case is limited to what is in the public record, and even then errs on the side of nondisclosure. As of this writing, the prisoner I represented is still imprisoned at Guantánamo, and I no longer represent him, thus making his consent to further disclosure by me impossible.
17. Boumediene, 128 S.Ct. 2229 (holding that Guantánamo prisoners have a constitutional right of habeas corpus); Hamdan v. Rumsfeld, 548 U.S. 557 (2006) (invalidating the military commissions system at Guantánamo); Rasul, 542 U.S. 466 (holding that Guantánamo prisoners have a statutory right of habeas corpus); Hamdi v. Rumsfeld, 542 U.S. 507 (2004) (O'Connor, J., plurality) (holding that a U.S. citizen detained as an "enemy combatant" has a due process right to challenge the factual basis of his detention before a neutral decisionmaker). Although the Hamdi case involved a U.S. citizen imprisoned at a military brig in South Carolina, it is properly considered in this line of cases because Hamdi was held on the same "enemy combatant" basis as the Guantánamo prisoners and was initially held at Guantánamo until his U.S. citizenship was discovered. Hamdi, 542 U.S at 510.
18. Hannah Arendt, THE ORIGINS OF TOTALITARIANISM 298 (new ed., Harcourt, Brace, & World, Inc. 1966) (1951).
19. Giorgio Agamben, HOMO SACER: SOVEREIGN POWER AND BARE LIFE (1998).
20. See infra Part I.D.
21. Mary Ann Glendon, RIGHTS TALK: THE IMPOVERISHMENT OF POLITICAL DISCOURSE (1991) (critiquing an overreliance on individual rights in American legal discourse).
22. Mari J. Matsuda, Looking to the Bottom: Critical Legal Studies and Reparations, 22 HARV. C.R.C.L. L. REV. 323, 393-94 (1987) (defining critical legalism as "a legal concept that has transformative power and that avoids the traps of individualism, neutrality and indeterminancy that plague many mainstream concepts of rights or legal principles").
23. Mari J. Matsuda, Looking to the Bottom: Critical Legal Studies and Reparations, 22 HARV. C.R.C.L. L. REV. 334, 393-94 (1987) (defining critical legalism as "a legal concept that has transformative power and that avoids the traps of individualism, neutrality and indeterminancy that plague many mainstream concepts of rights or legal principles").
24. As Foucault famously wrote, "resistance is never in a position of exteriority to power." Michel Foucault, THE HISTORY OF SEXUALITY, VOLUME ONE 95 (Robert Hurly trans., Vintage Books 1978) (1976).
25. The Obama Administration's abandonment of the "enemy combatant" construct is discussed in Part II.B.1.
26. I put "war on terrorism" in scare quotes because as currently conducted, U.S. antiterrorism efforts encompass not only combat in places such as in Afghanistan, but the capture of individuals far from any battlefield, such as in Bosnia, Gambia, and Zambia. See infra note 225 and accompanying text. Similarly, antiterrorism policy includes practices as disparate as warrantless wiretapping of U.S. citizens, see James Risen & Eric Lichtblau, Bush Lets U.S. Spy on Callers Without Courts, N.Y. TIMES, Dec. 16, 2005, at A1, and rendering of noncitizens to third countries where they have alleged torture
27. COMMISSION OF INQUIRY INTO THE ACTIONS OF CANADIAN OFFICIALS IN RELATION TO MAHER ARAR, REPORT OF THE EVENTS RELATED TO MAHER ARAR (2006), available at http://web.archive.org/web/20080313145724/http://www.ararcommission.ca/eng/AR_English.pdf. The "war on terrorism" is therefore a war in metaphor only. For further discussion of the dangerous consequences of accepting this metaphor, see infra notes 41-43 and accompanying text. For similar critiques of the war terminology
28. Joseph Margulies, GUANTÁNAMO AND THE ABUSE OF PRESIDENTIAL POWER 1, 43 (2006) (arguing that the "war on terror" justification has resulted in "an Administration that exercises substantially more power in the conduct of military operations, with fewer restraints, than ever before")
29. Salim Ahmed Hamdan at 18, Hamdan v. Rumsfeld, 548 U.S. 557 (2006) (No. 05-184) (referring to "the so called 'war on terror'").
30. Jumah al Dossari, I'm Home, but Still Haunted by Guantanamo, WASH. POST, Aug. 17, 2008, at B4. Al Dossari was imprisoned at Guantánamo from January 2005 until July 2007, at which time he was released without charge. Id.
31. Throughout this Article, I refer to the individuals incarcerated at Guantánamo as "prisoners" rather than "detainees," the term favored by the government. The government's refusal to refer to those incarcerated as "prisoners" is of a piece with its invention of the "enemy combatant" designation, and its position that they are not prisoners of war under the Geneva Conventions. See infra note 83 and accompanying text. The doctrinal implications of the choice of terminology aside, I find that the term "detainee" obscures the factual reality of the longterm, and indeed potentially lifetime, incarceration of those at Guantánamo, a reality I believe is better captured by describing them as prisoners.
32. Although he is still at Guantánamo as of this writing, I no longer represent Omar Khadr. With colleagues and students in the International Human Rights Law Clinic at American University Washington College of Law, I represented Omar from July 2004 to April 2007. He continues to be represented by military defense counsel and by Canadian civilian counsel.
33. Rendition has been defined as "the transfer of an individual, without the benefit of a legal proceeding in which the individual can challenge the transfer, to a country where he or she is at risk of torture."
34. Margaret L. Satterthwaite, Rendered Meaningless: Extraordinary Rendition and the Rule of Law, 75 GEO. WASH. L. REV. 1333, 1336 (2005).
35. Although the CIA has maintained a rendition program for decades, it gained new relevance after September 11th. Two cases of rendition to torture by the United States, those of Maher Arar and Khaled el-Masri, have been especially well documented. Maher Arar is a Canadian citizen whom U.S. officials detained in New York en route to Montreal following a visit to his family in Tunisia. The CIA transferred Mr. Arar, against his will, to Jordan, and then to Syria, where he was detained and tortured.
36. COMMISSION OF INQUIRY INTO THE ACTIONS OF CANADIAN OFFICIALS IN RELATION TO MAHER ARAR, REPORT OF THE EVENTS RELATING TO MAHER ARAR: ANALYSIS AND RECOMMENDATIONS 14, 27-30, 33-34 (2006).
37. Khaled el-Masri, a German citizen, was arrested in Macedonia, transferred to CIA custody, and transferred to a CIA prison in Afghanistan. Dana Priest, Wrongful Imprisonment: Anatomy of a CIA Mistake, WASH. POST, Dec. 4, 2005, at A1. For further examples of the CIA rendition program, see Amnesty Int'l, USA/Jordan/Yemen Torture and Secret Detention: Testimony of the "Disappeared' in the "War on Terror', AI Index AMR 51/108/2005, Aug. 4, 2005, available at http://www.amnesty.org/en/library/asset/AMR51/108/2005/en/3df5f930-d4cc-11dd-8a23-d58a49c0d652/amr511082005en.pdf (detailing the experiences of three Yemeni men: Muhammad Faraj Ahmed Bashmilah, Salah Nasser Salim 'Ali, and Walid Muhammad Shahir Muhammad al-Qadasi, held in secret U.S. detention). For further background on the development of rendition in U.S. policy, see Jane Mayer, Outsourcing Torture: The Secret History of America's "Extraordinary Rendition" Program, NEW YORKER, Feb. 14 & 21, 2005, at 106.
38. Memorandum from Muneer I. Ahmad & Richard J. Wilson to Habeas Privilege Team Re: Request for Classification Review, O.K. v. Bush, 04-CV-01136 (JDB) (Dec. 30, 2004) (copy on file with author). For a recitation of other instances of mistreatment that Omar experienced, see O.K. v. Bush, 377 F. Supp. 2d 102, 106-10 (D.D.C. 2005). In 2008, Omar's Canadian lawyers obtained and released video of an interrogation of him in February 2003, when Omar was sixteen. See Ian Austen, Blurry Peek at Questioning of a Guantánamo Inmate, N.Y. TIMES, July 16, 2008, at A10. The video is available online at http://www.youtube.com/watch?v=yNCyrFV2G_0.
39. Austin Sarat & Thomas R. Kearns, Editorial Introduction, in LEGAL RIGHTS: HISTORICAL AND PHILOSOPHICAL PERSPECTIVES 1, 6-7 (Austin Sarat & Thomas R. Kearns eds., 1996).
40. Derrida has described this temporality as the "mystical foundation" of law's authority, a formulation he borrows from Pascal: Nothing, according to reason alone, is just in itself; all changes with time. Custom creates the whole of equity, for the simple reason that it is accepted. It is the mystical foundation of its authority. Whoever carries it back to its first principle destroys it.
41. Jacques Derrida, Force of Law: The Mystical Foundation of Authority, in DECONSTRUCTION AND THE POSSIBILITY OF JUSTICE 230, 239 (Drucilla Cornell, Michael Rosenfeld & David Gray Carlson eds., 1992) (quoting BLAISE PASCAL, PENSÉES No. 294, available at http://oregonstate.edu/instruct/phl302/ texts/pascal/pensees-b.html#SECTION%20V).
42. Elizabeth M. Schneider, The Dialectic of Rights and Politics: Perspectives From the Women's Movement, 61 N.Y.U. L. REV. 589 (1986).
43. Clifford Geertz, NEGARA: THE THEATRE STATE IN NINETEENTH-CENTURY BALI (1980); CLAUDE LÉVI-STRAUSS, TOTEMISM (1963); BRONISLAW MALINOWSKI, THE FAMILY AMONG THE AUSTRALIAN ABORIGINES: A SOCIOLOGICAL STUDY (1963).
44. Clifford Geertz, THE INTERPRETATION OF CULTURES 449 (1973) (espousing the interpretation of cultures and complex societies as "texts").
45. "[L]aw is predominantly a system of meaning rather than an imposition of force." Robert Cover, The Supreme Court, 1982 Term-Forward: Nomos and Narrative, 97 HARV. L. REV. 4, 12 (1983) [hereinafter Cover, Nomos and Narrative].
46. Id. at 8.
47. Id. at 4-5.
48. Yet narrative does not merely reflect a social order. The discursive act of narration renders that social order, and its social meaning, flexible and dynamic, creating realities as it describes them. See Bruce Lincoln, THEORIZING MYTH: NARRATIVE, IDEOLOGY, AND SCHOLARSHIP 149 (1999) (describing a political theory of narrative that "recognizes the capacity of narrators to modify details of the[ir] stories,... introducing changes in the classificatory order... that reflect their subject position and advance their interests").
49. Narrative derives from and generates substantiality. The act of narration is transformed into an ideological contest, in which discursive interpretation-the naming of actors and ideas, the foregrounding of values, and the selection of chronologies-simultaneously reflects and constitutes the social reality it seeks to create. See Clifford Geertz, Ideology as a Cultural System, in IDEOLOGY AND DISCONTENT 63-64 (David E. Apter ed., 1964) ("[T]he function of ideology is to make an autonomous politics possible by providing the authoritative concepts that render it meaningful..."). Narrative and social reality thus are locked in "a symbiotic relation of co-reproduction, each one being simultaneously producer and product of the other." LINCOLN, supra, at 210.
50. Anthony G. Amsterdam & Jerome Bruner, MINDING THE LAW 113 (2000) (describing narrative as "the necessary discourse of law").
51. Cover, Nomos and Narrative, supra note 35, at 5, 25.
52. John Mintz, U.S. to Free 7 Held in Cuba, WASH. POST, Oct. 23, 2002, at A2 (quoting Donald Rumsfeld's description of the prisoners as the "worst of the worst").
53. Donald Rumsfeld, U.S. Sec'y of Def., and Gen. Richard B. Myers, Chairman, Joint Chiefs of Staff, Department of Defense News Briefing (Jan. 11, 2002), http://www.defenselink.mil/Transcripts/Transcript.aspx?TranscriptID=2031.
54. Representative photos are available at http://globalresearch.ca/articles/CRG211A.html.
55. The history of Haitian detention at Guantánamo is a particularly ugly one. See Brandt Goldstein, STORMING THE COURT (2005);
56. Harold Hongju Koh, The "Haiti Paradigm" in United States Human Rights Policy, 103 YALE L.J. 2391 (1994);
57. The Lowenstein Human Rights Clinic, Aliens and the Duty of Nonrefoulement: Haitian Centers Council v. McNary, 6 HARV. HUM. RTS. J. 1 (1993). Amy Kaplan has linked this racialized history of Guantánamo to its present usage, writing: The current prisoners not only first literally inhabited the camps built for the Haitian and Cuban refugees, but they also continue to inhabit the racialized images that accrued over the century in the imperial outpost of Guantánamo: images of shackled slaves, infected bodies, revolutionary subjects, and undesirable immigrants. The prisoners fill the vacated space of colonized subjects, in which terrorism is imagined as an infectious disease of racialized bodies in need of quarantine. The category of "enemy combatants" effaces all differences among the detainees and also draws on these older imperial codes... Thus "enemy combatant" is a racialized category, not only because of rampant racism toward Arabs and Muslims, but also because of this history. Stereotypes of the colonized, immigrants, refugees, aliens, criminals, and revolutionaries are intertwined with those of terrorists and identified with racially marked bodies in an imperial system that not only colonizes spaces outside U.S. territories but also regulates the entry of people migrating across the borders of the United States.
58. Amy Kaplan, Where Is Guantánamo?, 57 AM. QUARTERLY 831, 840 (2005).
59. The argument regarding structural racism in the U.S. criminal justice system, culminating in the disproportionate imprisonment of African Americans and Latinos, is a familiar one. See, e.g., Michael J. Lynch & E. Britt Patterson, RACE AND CRIMINAL JUSTICE (1991) (compiling several articles discussing the impact of racial biases on all stages of the criminal justice system);
60. Angela J. Davis, Prosecution and Race: The Power and Privilege of Discretion, 67 FORDHAM L. REV. 13, 25-30 (1998-99) (discussing the discriminatory impact of police officer and prosecutorial discretion and describing them as further manifestations of racial disparities in the criminal justice system).
61. Brian Masaru Hayashi, DEMOCRATIZING THE ENEMY: THE JAPANESE AMERICAN INTERNMENT (2004) (concluding that U.S. internment of Japanese Americans during World War II furthered broad sociopolitical goals of the U.S. government vis-à-vis the Japanese American population);
62. Tetsuden Kashima, JUDGMENT WITHOUT TRIAL: JAPANESE AMERICAN IMPRISONMENT DURING WORLD WAR II (2003) (arguing that plans for U.S. internment and incarceration of Japanese Americans far preceded the attack on Pearl Harbor in 1941 and were developed as early as the 1920s in preparation of a perceived future conflict with Japan).
63. I have written previously on the racial construction of the terrorist. See Muneer I. Ahmad, A Rage Shared by Law: Post-September 11 Racial Violence As Crimes of Passion, 92 CAL. L. REV. 1259 (2004) [hereinafter, Ahmad, Rage Shared by Law];
64. Muneer Ahmad, Homeland Insecurities: Racial Violence the Day After September 11, 72 SOC. TEXT 101 (2002).
65. Margaret Chon & Donna E. Arzt, Walking While Muslim, 68 LAW & CONTEMP. PROBS. 215 (2005);
66. Leti Volpp, The Citizen and the Terrorist, 49 UCLA L. REV. 1575 (2002).
67. Johnson v. Texas, 509 U.S. 350, 367 (1993) ("[A] lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in adults and are more understandable among the young. These qualities often result in impetuous and ill-considered actions and decisions."); see also Brief for the American Medical Ass'n, American Psychiatric Ass'n, American Society for Adolescent Psychiatry, American Academy of Child & Adolescent Psychiatry, American Academy of Psychiatry & the Law, National Ass'n of Social Workers, Missouri Chapter of the National Ass'n of Social Workers, and National Mental Health Ass'n as Amici Curiae Supporting Respondent, Roper v. Simmons, 543 U.S. 551 (2005) (No. 03-633) (arguing that adolescent minds are "anatomically immature").
68. Cover, Nomos and Narrative, supra note 35, at 33 ("[T]he nomos of officialdom is also 'particular'... And it, too, reaches out for validation and seeks to extend its legitimacy by gaining acceptance from the normative world that lies outside its core.").
69. See id. at 40 ("[T]he jurisgenerative principle by which legal meaning proliferates in all communities never exists in isolation from violence.").
70. See Ahmad, Rage Shared by Law, supra note 47, at 1265-82; Volpp, supra note 47, at 1576-86.
71. Volpp, supra note 47, at 1592-98. Volpp does not argue that the post-September 11 national identity was monolithic, but instead that state actions helped to forge a new and recognizable identity claim. Id. Of course, that claim, like all identity claims, has been contested.
72. For a discussion of the performative dimensions of Arab, Muslim, and South Asian identities in the aftermath of September 11, see Chon & Arzt, supra note 47; Sunita Patel, Performative Aspects of Race: "Arab, Muslim, And South Asian" Racial Formation After September 11, 10 ASIAN PAC. AM. L.J. 61 (2005).
73. For a discussion of performance theory and identity, see Devon W. Carbado & Mitu Gulati, Working Identity, 85 CORNELL L. REV. 1259 (2000);
74. Nan D. Hunter, Expressive Identity: Recuperating Dissent for Equality, 35 HARV. C.R.-C.L. L. REV. 1 (2000);
75. Kenji Yoshino, Covering, 111 YALE L.J. 769 (2002).
76. Jasbir K. Puar & Amit S. Rai, Monster, Terrorist, Fag: The War on Terrorism and the Production of Docile Patriots, 20 SOCIAL TEXT 117 (2002).
77. EDWARD W. SAID, ORIENTALISM (1978) (introducing the term "Orientalism" to describe a Western conception of the Orient, in terms that reflected and perpetuated political and cultural hegemony toward the region).
78. Jean-Paul Sartre, COLONIALISM AND NEOCOLONIALISM 149 (Haddour, Brewer & McWilliams trans., Routledge 2001) (1964).
79. See Volpp, supra note 47, at 1586-91 (characterizing the post-September 11 construction of the terrorist as a redeployment of Orientalist tropes).
80. Jean-Paul Sartre, Preface to FRANTZ FANON, THE WRETCHED OF THE EARTH lviii (Richard Philcox trans., Grove Press 2004) (1961).
81. See Charge Sheet at 5-8, United States v. Khadr, (Apr. 4, 2007), available at http://www.defenselink.mil/news/Apr2007/Khadrreferral.pdf; Canadian Press, Canadian teenager threw grenade: U.S. Military (Sept. 9, 2009), available at http://montreal.ctv.ca/servlet/an/plocal/CTVNews/ 20020909/kahdr_omar_recovery_020909/20020909/?hub=MontrealHome.
82. Michelle Shephard, GUANTANAMO'S CHILD: THE UNTOLD STORY OF OMAR KHADR 83 (2008).
83. Charge Sheet at 5-8, United States v. Khadr, (Apr. 4, 2007), available at http://www.defenselink.mil/news/Apr2007/Khadrreferral.pdf.
84. See infra Part II.B.1.
85. See infra notes Part II.A.
86. For an exhaustive discussion of Omar's family, see SHEPHARD, supra note 60.
87. Counsel visits were enabled by the Supreme Court's decision in Rasul v. Bush, handed down on June 30, 2004, which recognized the right of Guantánamo prisoners to challenge the legality of their detention by way of habeas corpus. 542 U.S. 466 (2004). Once the right of the prisoners to file habeas petitions was established, a right of access to counsel (though not a right to counsel at government expense) followed. See Al Odah v. United States, No. 02-828 (CKK) (D.D.C. Oct. 20, 2004) (Mem.), available at http://guantanamobile.org/pdf/kollar-kotelly.pdf.
88. Later flights would be via a Lynx competitor, optimistically named Air Sunshine.
89. Gitmo Photos, supra note 43 and accompanying text. Representative images are available at http://globalresearch.ca/articles/CRG211A.html. Images of U.S. military transports of prisoners were anonymously sent to media sources on November 8, 2002. Although the U.S. government was unaware of who leaked the photos, it verified the photos were authentic. See Pentagon Probes Anonymous Release of Detainee Photos: Pictures Show Restrained Men in Military Transport, CNN.COM, Nov. 8, 2002, http://archives.cnn.com/2002/US/11/08/detainees.pictures.
90. See MARGULIES, supra note 24, at 27 (discussing how U.S. interrogators at Guantánamo Bay justified barring prisoners' access to counsel because this "instills in the prisoner the dangerous and misguided belief that he may secure relief 'through an adversarial civil litigation process'-that is, the courts... The prisoner must realize that his welfare is wholly in the hands of his interrogators... [whose] battle is won only when the prisoner believes that all is lost, for only then will he abandon his resistance").
91. See Associated Press, More rights for Gitmo's lizards than detainees?, MSNBC, Dec. 8, 2007, http://www.msnbc.msn.com/id/22161810; see also Transcript of Oral Argument at 5, Rasul v. Bush, 542 U.S. 466 (2004) (No. 03-334) (discussing protection of iguanas at Guantánamo under U.S. law).
92. The normalcy of Guantánamo is called further into question-or perhaps is reestablished-when one begins to appreciate its racialized labor market. Almost all of the laborers at the base-the janitors and food service staff, the landscapers and maintenance workers-are Filipino, Haitian, and Jamaican migrants, referred to as third-country nationals, or TCNs. See Matthew Hay Brown, Guantanamo Base Provides an Enclave of Small-Town Life, HARTFORD COURANT, Dec. 26, 2003, at A27 (noting that many of Guantánamo's Jamaican and Filipino laborers have worked on the base for over thirty years); Paul Koring, The Uneasy Mix Called Guantanamo, GLOBE AND MAIL, Jan. 14, 2006, at A19 (describing the "TNC Hills," a housing complex where most of Guantánamo's labor force lives). The reliance on migrant workers for low-wage service industry labor in the United States extends to Guantánamo. It is a reminder that the penal colony that is Guantánamo Bay is indeed colonial. Moreover, it inaugurates recognition of a pervasive yet complex racial economy at Guantánamo, where black and brown migrant labor services a multiracial U.S. military that in turn incarcerates and interrogates Muslim men. In this regard, even though we were in the legal netherland of Guantánamo, it seemed impossible to escape the multiple taxonomies of American citizenship, and in particular, their racial, national, and labor dimensions.
93. Presidential Military Order of November 13, 2001: Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 66 Fed. Reg. 57,833 (Nov. 16, 2001) [hereinafter Presidential Military Order].
94. The Executive Branch's position on the applicability of the Geneva Conventions to the conflict in Afghanistan has gone through three stages since the onset of hostilities. First, U.S. military commanders concluded that the Geneva Conventions applied. See FINAL REPORT OF THE INDEPENDENT PANEL TO REVIEW DOD DETENTION OPERATIONS (Aug. 2004), reprinted in THE TORTURE PAPERS: THE ROAD TO ABU GHRAIB 908, 947 (Karen J. Greenberg, Joshua L. Dratel & Anthony Lewis eds., 2005); William H. Taft, Keynote Address, The Geneva Conventions and the Rules of War in the Post-9/11 and Iraq World Symposium, 21 AM. U. INT'L L. REV. 149, 154 (2005).
95. Second, on February 7, 2002, President Bush issued a memorandum declaring the Geneva Conventions inapplicable to members of Al Qaeda. Memorandum from President George W. Bush to the Vice President, et al., Humane Treatment of al Qaeda and Taliban Detainees (Feb. 7, 2002), available at http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB127/02.02.07.pdf. President Bush claimed inherent authority to suspend the Conventions as to the conflict in Afghanistan, but declined to exercise that authority. Id. Instead, he classified members of the Taliban as "enemy combatants" and asserted that "as a matter of policy, the United States Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva." Id.
96. In so deciding, President Bush accepted the legal counsel of the Department of Justice over that of senior military advisors. Deputy Assistant Attorney General John Yoo advised President Bush that neither Al Qaeda nor the Taliban enjoyed protection under the Geneva Conventions. Memorandum from John Yoo, Deputy Assistant Attorney Gen., Office of Legal Counsel, to William J. Haynes II, Gen. Counsel, Dep't of Def., Application of Treaties and Laws to al Qaeda and Taliban Detainees, (Jan. 9, 2002), available at http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB127/02.01.09.pdf. Alberto Gonzales confirmed the legal conclusions of the Jan. 9, 2002 Yoo memo. Memorandum from Alberto R. Gonzales, Counsel to the President, to President George W. Bush, Decision Re: Application of Treaties and Laws to al Qaeda and Taliban Detainees (Jan. 25, 2002), available at http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB127/02.01.25.pdf ("The nature of the new war... renders obsolete Geneva's strict limitations... and renders quaint some of its provisions...").
97. Then-Secretary of State Colin Powell disagreed, arguing that suspension of the Geneva Conventions would evoke wide international condemnation. Memorandum from Colin L. Powell, Sec'y of State, U.S. Dep't of State, to Alberto R. Gonzales, Counsel to the President, Draft Decision Memorandum to the President on the Applicability of the Geneva Conventions to the Conflict in Afghanistan (Jan. 26, 2002), available at http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB127/02.01.26.pdf. Powell recommended the continued applicability of the Geneva Conventions to the conflict in Afghanistan, with the qualification that neither members of Al Qaeda nor the Taliban would enjoy Prisoner of War status. Id.; accord Memorandum from William H. Taft IV, Legal Advisor, U.S. Dep't of State, to Alberto R. Gonzales, Counsel to the President, Comments on Your Paper on the Geneva Convention (Feb. 2, 2002), available at http://www.nytimes.com/packages/html/politics/20040608_DOC.pdf (echoing Secretary Powell's concerns and legal recommendation).
98. The third, and latest, Executive Branch position came on January 22, 2009, when President Obama issued two executive orders reversing the Bush policies with respect to executive detainees and the Geneva Conventions. The first order requires that executive detention facilities operate in conformity with Common Article 3 of the Geneva Conventions. Review and Disposition of Individuals Detained at the Guantánamo Bay Naval Base and Closure of Detention Facilities, Exec. Order No. 13,492, 74 Fed. Reg. 4897 (Jan. 22, 2009). The second, concerning interrogation standards, provides that Common Article 3 sets the minimum standard of treatment for executive detainees and that the Army Field Manual be read in conformity with Common Article 3. Ensuring Lawful Interrogations, Exec. Order No. 13,491, 74 Fed. Reg. 4893 (Jan. 22, 2009). This latter order specifically repudiates the Office of Legal Counsel memoranda issued by the Bush Administration. Id.
99. In the initial-now notorious-August 2002 memo drafted by the Office of Legal Counsel on permissible interrogation techniques, acts tantamount to torture were narrowly defined to include only those specifically intended to produce harm of a gravity akin to "death, organ failure, or the permanent impairment of a significant body function." Memorandum from Jay S. Bybee, Assistant Attorney Gen., Office of Legal Counsel, U.S. Dep't of Justice, to Alberto R. Gonzales, Counsel to the President, Re: Standards of Conduct for Interrogation Under 18 U.S.C. §§ 2340-2340A (Aug. 1, 2002), available at http://news.findlaw.com/nytimes/docs/doj/ bybee80102mem.pdf. Though later rescinded, the Bybee Memo provided the legal framework for the authorization of interrogation techniques previously considered a violation of U.S. legal norms under domestic and international law. Moreover, it tacitly authorized the explicit use of torture in limited circumstances where justified by necessity. Id. A subsequent memorandum, written by John Yoo, went further to suggest that the claim of wartime executive authority could excuse interrogators from criminal liability for acts of torture. Memorandum from John Yoo, Deputy Assistant Attorney Gen., Office of Legal Counsel, U.S. Dep't of Justice, to William J. Haynes II, Gen. Counsel, Dep't of Def., Military Interrogation of Alien Unlawful Enemy Combatants Held Outside the United States 80 (Mar. 14, 2003), available at http://gulcfac.typepad.com/georgetown_university_ law/files/march.14.memo.part1.pdf (pt. 1) and http://gulcfac.typepad.com/georgetown_university_law/ files/march14.memo.part2.pdf (pt. 2). Collectively, these and other Office of Legal Counsel memoranda are referred to as the "Torture Memos." See, e.g., Jeffrey Rosen, The Nation; The Struggle Over the Torture Memos, N.Y. TIMES, Aug. 15, 2004, at D5. President Obama released additional Office of Legal Counsel memos on April 16, 2009. See Mark Mazzetti & Scott Shane, Interrogation Memos Detail Harsh Tactics by the C.I.A., N.Y. TIMES, Apr. 17, 2009, at A1.
100. This new legal framework enabled numerous revisions to operations manuals of the U.S. armed forces authorizing new interrogation techniques. For example, responding to a perceived lack of progress with interrogations, Guantánamo Commander Major General Michael E. Dunlavey sought authorization for the use of techniques of greater severity than those previously permitted under the 1992 version of the Army Field Manual 34-52. Memorandum from Major Gen. Michael E. Dunlavey, Commander, Joint Task Force 170, to Gen. James T. Hill, Commander, U.S. Southern Command, Proposed Counter-Resistance Strategies, Oct. 11, 2002, available at http://www.gwu.edu/ ~nsarchiv/NSAEBB/NSAEBB127/02.12.02.pdf. For a comprehensive discussion of the Bush Administration's evolving policy on permissible interrogation procedures, see Rick Abel, Contesting Legality in the United States after September 11, in FIGHTING FOR POLITICAL FREEDOM: COMPARATIVE STUDIES OF THE LEGAL COMPLEX AND POLITICAL LIBERALISM 361 (Terence C. Halliday, Lucien Karpik & Malcolm M. Feeley eds., 2007). For one of many critiques of John Yoo's legal advice, see Peter Margulies, True Believers at Law: National Security Agendas, the Regulation of Lawyers, and the Separation of Powers, 68 MD. L. REV. 1 (2008).
101. 542 U.S. 466 (2004).
102. 542 U.S. 507 (2004).
103. 548 U.S. 557 (2006).
104. Pub. L. No. 109-148, § 1003, 119 Stat. 2739 (2005).
105. Pub. L. No. 109-366, 120 Stat. 2600 (codified at 10 U.S.C. §§ 948-50 (2006); 18 U.S.C. § 2441; and 28 U.S.C. § 2241(c)-(e)).
106. Baher Azmy, Rasul v. Bush and the Intra-Territorial Constitution, 62 N.Y.U. ANN. SURV. AM. L. 369 (2007);
107. Jared A. Goldstein, Habeas Without Rights, 2007 WISC. L. REV. 1165 (2007);
108. Jenny S. Martinez, Process and Substance in the 'War on Terror', 108 COLUM. L. REV. 1013 (2008).
109. Boumediene held that, as a constitutional matter, the writ of habeas corpus extends to the prisoners at Guantánamo, that the prisoners there "are entitled to a prompt habeas corpus hearing," and that the habeas courts have the power to order release. Boumediene v. Bush, 128 S. Ct. 2229, 2266, 2275 (2008). However, the Court's opinion expressly notes two limitations: the definition of the key term "enemy combatant" is relegated to the lower courts, as is the responsibility for establishing the "procedural and substantive standards" for the habeas hearings. Id. at 2273, 2276.
110. See Presidential Military Order, supra note 71.
111. See Memorandum from John Yoo, Deputy Assistant Attorney Gen., Office of Legal Counsel, to William J. Haynes II, Gen. Counsel, Dep't of Def., Application of Treaties and Laws to al Qaeda and Taliban Detainees, (Jan. 9, 2002), available at http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB127/02.01.09.pdf; see also MARGULIES, supra note 24, at 56-59.
112. Gerald L. Neuman, Anomalous Zones, 48 STAN. L. REV. 1197, 1229 (1996).
113. Haitian Refugee Ctr. v. Baker, 953 F.2d 1498, 1513 n.8 (11th Cir. 1992).
114. Haitian Ctrs. Council v. McNary, 969 F.2d 1326 (2d Cir. 1992), vacated as moot sub nom., Sale v. Hatian Ctrs. Council, 509 U.S. 918 (1993); see also Haitian Ctrs. Council v. Sale, 823 F. Supp. 1028, 1041-42 (E.D.N.Y. 1993) (vacated by Stipulated Order Approving Class Action Settlement Agreement (Feb. 22, 1994)).
115. Neuman, supra note 84, at 1232.
116. Neuman, supra note 84, at 1232 at 1228-29.
117. Neal Kumar Katyal, Hamdan v. Rumsfeld: The Legal Academy Goes to Practice, 120 HARV. L. REV. 65, 69 (2006) (distinguishing the traditional theory of a unitary executive from the "wild-eyed theory, masquerading as a 'unitary executive' concept, that purported to allow... [the Bush Administration] to defy and creatively reinterpret even the will of Congress-all supposedly entirely consistent with the Constitution. This virulent strain of the unitary executive, which emphasized the President's 'inherent authority' to act, gained traction and led to a number of exceptionally dangerous policies, culminating in the so-called 'torture memorandum'") (internal citations omitted).
118. Presidential Military Order, supra note 71.
119. See supra note 72 and accompanying text.
120. See Action Memo from William J. Haynes, Gen. Counsel, Dep't of Def., to Donald H. Rumsfeld, Sec'y of Def., Counter-Resistance Techniques (Dec. 2, 2002), available at http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB127/02.12.02.pdf (authorizing, among other techniques, stress positions, extended isolation, hooding, twenty-hour interrogations, restriction on meals, and exploitation of individual phobias).
121. See supra Part I.B.
122. 542 U.S. 466 (2004). For an excellent analysis of Rasul, see Azmy, supra note 79.
123. See In re Guantanamo Detainee Cases, 355 F. Supp. 2d. 443 (D.D.C. 2005); Khalid v. Bush, 355 F. Supp. 2d 311 (D.D.C. 2005).
124. See Motion to Dismiss or for Judgment as a Matter of Law and Response Pursuant to the Court's Sept. 20, 2004 Order, Khadr v. Bush, 04-CV-01136JDB (D.D.C. Oct. 4, 2004).
125. Senior Judge Joyce Hens Green issued an opinion that found the prisoners to have Fifth Amendment due process rights. See Guantanamo Detainee Cases, 355 F. Supp. 2d. at 464. Judge Richard Leon reached the opposite conclusion. See Khalid, 355 F. Supp. 2d at 320-24.
126. Pub. L. No. 109-148, § 1003, 119 Stat. 2739 (2005).
127. Id. § 1005(e).
128. U.S. 557 (2006).
129. U.S. 557 (2006) at 571-83.
130. U.S. 557 (2006) at 625, 632-33.
131. Much of the parties' debate over whether the prisoners possess constitutional or statutory rights has centered on footnote 15 of the majority opinion in Rasul, which states: Petitioners' allegations-that, although they have engaged neither in combat nor in acts of terrorism against the United States, they have been held in executive detention for more than two years in territory subject to the long-term, exclusive jurisdiction and control of the United States, without access to counsel and without being charged with any wrongdoing-unquestionably describe "custody in violation of the Constitution or laws or treaties of the United States." 28 U. S. C. §2241(c)(3).
132. Rasul v. Bush, 542 U.S. 466, 483 n.15 (2004).
133. Owen M. Fiss, Dombrowski, 86 YALE L.J. 1103 (1977).
134. Cover, Nomos and Narrative, supra note 35, at 56.
135. Id. at 54 ("[T]he judge-armed with no inherently superior interpretive insight, no necessarily better law-must separate the exercise of violence from his own person.").
136. See, e.g., Hamdan v. Rumsfeld, 548 U.S. 557, 561 (2006) (discussing the right to be present at one's own trial).
137. Military Commissions Act of 2006 (MCA), Pub. L. No. 109-366, 120 Stat. 2600.
138. See id. § 7, amending 28 U.S.C. § 2241(e)(1) ("No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined... an enemy combatant or is awaiting such determination."). I have written previously about the implications of the MCA's habeas-stripping provisions for noncitizens within the United States. See Muneer I. Ahmad, Guantánamo Is Here: The Military Commissions Act and Noncitizen Vulnerability, 2007 U. CHI. LEGAL F. 1 (2007).
139. Responding to the Hamdan decision, including the Court's finding that the commissions, as then constituted, violated Common Article 3, the MCA sought to cabin the scope and application of the Geneva Conventions. See 10 U.S.C. § 948b(d)(2)(f) (2006) (defining the military commissions as per se "regularly constituted courts" under Common Article 3 of the Geneva Conventions); id. § 948b(d)(2)(g) (declaring that the Geneva Conventions may not be invoked as a source of rights by enemy combatants); MCA, supra note 109, § 5(a) (barring the use of the Geneva Conventions as a source of rights in any habeas or other civil proceeding in which the United States or its agents are a party); id. § 6(a)(3)(A) (granting the President inherent authority to interpret the meaning and application of the Geneva Conventions, including the definition of "grave breaches").
140. Numerous commentators have argued against this evisceration of the Conventions under U.S. law. See generally Mark A. Drumbl, The Expressive Value of Prosecuting and Punishing Terrorists: Hamdan, the Geneva Conventions, and International Criminal Law, 75 GEO. WASH. L. REV. 1165 (2007); Carlos Manuel Vázquez, The Military Commissions Act, the Geneva Conventions, and the Courts: A Critical Guide, 101 AM. J. INT'L L. 73 (2007).
141. See MCA, supra note 109, § 3 (adding Chapter 47A to Title 10 of the U.S. Code).
142. Robert M. Cover, The Folktales of Justice, in NARRATIVE, VIOLENCE AND THE LAW: THE ESSAYS OF ROBERT COVER 173, 174-75 (Martha Minow, Michael Ryan & Austin Sarat eds., 1992) [hereinafter Cover, Folktales of Justice] (discussing the value of law in legitimizing "the exercise of coercion and... the organization of authority and privilege").
143. See Agreement for the Lease to the United States of Lands in Cuba for Coaling and Naval Stations, Feb. 23, 1903, U.S.-Cuba, art. III, T.S. No. 418, in THE CONSOLIDATED TREATY SERIES, 1902-1903, at 429-430 (Clive Perry ed., Ocean Publications 1980).
144. Henry J. Steiner & Phillip Alston, INTERNATIONAL HUMAN RIGHTS IN CONTEXT: LAW, POLITICS, MORALS 161-73, 1222-37 (2d ed. 2000) (discussing jus cogens in the context of international human rights);
145. Pieter van Dijk, A Common Standard of Achievement About Universal Validity and Uniform Interpretation of International Human Rights Norms, 13 NETH. Q. HUM. RTS. 105 (1995) (recognizing the universality of a core set of human rights as evidenced by broad codification in international and regional legal conventions).
146. Cover, Folktales of Justice, supra note 113, at 174-75. But see Alan Hyde, The Concept of Legitimation in the Sociology of Law, 1983 WISC. L. REV. 379 (1983) (questioning the existence of a causal relationship between actions by legal institutions and popular belief in the legitimacy of government). Although Hyde raises an empirical question regarding causality between state action and popular consciousness, my argument here is about the government's belief in the importance of making the commissions appear legitimate.
147. See, e.g., Brief for the Respondents in Opposition, Hamdi v. Rumsfeld, 2003 WL 23189498, at *20 (Dec. 3, 2003) (No. 03-6696) (relying upon "laws and customs of war," as well as Hague Convention of 1907, for authority for wartime detention of combatants).
148. See, e.g., Brief for Respondents at 37-38, Hamdan v. Rumsfeld, 548 U.S. 557 (2006) (No. 05-184), 2006 WL 460875 (arguing that Common Article 3 "is inapplicable to the ongoing conflict with al Qaeda").
149. The Combatant Status Review Tribunal was created by the Bush Administration after the Supreme Court decided the Rasul case and, on the same day, the case of Hamdi v. Rumsfeld, 542 U.S. 507 (2004). For a fuller description of the origins and nature of the CSRT, see infra note 126 and accompanying text.
150. Gina Pace, U.S. Releases Gitmo Detainee Names, ASSOCIATED PRESS, Mar. 4, 2006, available at http://www.cbsnews.com/stories/2006/03/02/terror/main1364552.shtml.
151. CTR. FOR CONSTITUTIONAL RIGHTS, REPORT ON TORTURE AND CRUEL, INHUMAN AND DEGRADING TREATMENT OF PRISONERS AT GUANTÁNAMO BAY, CUBA ii (July 2006) (quoting Unclassified Attorney Notes of Robert Kirsch), available at http://ccrjustice.org/files/Report_ReportOnTorture.pdf.
152. 128 S. Ct. 2229 (2008).
153. 128 S. Ct. 2229 (2008) at 2274.
154. See Press Release, U.S. Dist. Court for D.C., DC Chief Judge Meets with Judges to Discuss District Court Procedures for Guantanamo Cases (July 2, 2008), http://www.dcd.uscourts.gov/public-docs/system/files/Guantanamo-PressRelease070208.pdf ("'The judges of this Court are committed to deciding these[] cases as expeditiously as possible.'"(quoting Royce C. Lamberth, C.J.)) (last visited Sept. 5, 2009). A flurry of case activity suggests that the district court is expediting these cases.
155. Boumediene, 128 S. Ct. at 2273, 2275. The Court was sensitive to the issue of delay, noting, "[w]hile some delay in fashioning new procedures is unavoidable, the costs of delay can no longer be borne by those who are held in custody." Id. at 2275. Yet it seems that the costs will be borne by the prisoners after all.
156. The Supreme Court did provide the lower courts with some significant guidance that should make post-Boumediene litigation more fruitful than was the post-Rasul litigation. Specifically, the Court found that the government procedure created in the aftermath of Rasul, known as the Combatant Status Review Tribunal (CSRT) and purportedly designed to confirm the "enemy combatant" status of each prisoner, was an inadequate substitute for federal habeas review. The Court found the procedure inadequate even though the DTA authorized a limited review of its conclusions by the D.C. Court of Appeals. Boumediene, 128 S. Ct. at 2262-74. Thus, the Court has now ruled on two issues that dominated the post-Rasul litigation: the availability of habeas after passage of the DTA and the MCA, and the adequacy of the CSRT proceedings. With this doctrinal underbrush cleared, the path to full habeas proceedings should be clearer, and yet I remain concerned about the ability of the Executive Branch to fore- stall hearings because of myriad other legal issues to be litigated, not least of which is the question of what substantive rights the prisoners possess.
157. Jenny Martinez has raised a related set of concerns about the "war on terror" cases, noting the disconcerting tendency of lawyers and courts alike to focus on procedural rights at the expense of substantive claims. See Martinez, supra note 79.
158. Finally, the case of the Uighurs at Guantánamo provides an acute example of the post-Boumediene gap between procedural and substantive justice. The Uighurs, a Muslim ethnic minority, have been determined not to be enemy combatants, but cannot be returned to China because of a likelihood they will be tortured by the Chinese government. On October 7, 2008, Judge Ricardo Urbina granted the writ of habeas corpus to the Uighurs and ordered their release into the United States. In re Guantanamo Bay Detainee Litig., 581 F. Supp. 2d 33 (D.D.C. 2008). The government immediately challenged that order, and the D.C. Circuit subsequently reversed, holding that the plenary power doctrine precluded the courts from ordering the government to admit someone to the United States. Kiyemba v. Obama, 555 F.3d 1022, 1026-29 (D.C. Cir. 2009). Thus, the Uighurs, who in all likelihood never should have been brought to Guantánamo in the first place, were trapped there indefinitely despite their right to habeas having been vindicated. Although the Supreme Court recently granted certiorari in their case, Kiyemba v. Obama, 555 F.3d 1022 (D.D.C. 2009), cert. granted, 2009 WL 935637 (U.S. Oct. 20, 2009) (No. 08-1234), the plight of the Uighurs is likely to be resolved politically rather than legally: the United States recently negotiated for the transfer of four Uighurs to Bermuda and six to the South Pacific nation of Palau, and is attempting to resettle the remaing Uighurs elsewhere. See Erik Eckholm, Out of Guantánamo, Uighurs Bask in Bermuda, N.Y. TIMES, June 14, 2009, at A4; David Johnston, Uighurs Leave Guantánamo for Palau, N.Y. TIMES, Nov. 1, 2009, at A22; Warren Richey, Supreme Court Leaves Hanging the Case of Detained Uighurs, CHRISTIAN SCI. MON., June 30, 2009, available at http://www.csmonitor.com/2009/0701/p02s06-usju.html (reporting on the Supreme Court's failure to act on Uighurs' petition for certiorari). Five Uighurs were previously resettled in Albania. See Tim Golden, Chinese Leave Guantánamo for Albanian Limbo, N.Y. TIMES, June 10, 2007, at A1.
159. See Basardh v. Bush, 2009 WL 856345 (D.D.C. Mar. 31, 2009) (ordering release of Yasin Muhammad Basard); El Gharani v. Bush, 593 F. Supp. 2d 144 (D.D.C. 2009) (ordering release of Mohammed el Gharani); Boumediene v. Bush, 579 F. Supp. 2d 191, 199 (D.D.C. 2008) (directing Respondents "to take all necessary and appropriate diplomatic steps to facilitate the release of Petitioners Lakhdar Boumediene, Mohamed Nechla, Hadj Boudella, Mustafa Ait Idr, and Sabr Lahmar forth-with").
160. See supra note 13 and accompanying text.
161. The Convention Against Torture defines torture as: [A]ny act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
162. Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment Pt. I, Art. 1, ¶ 1, Dec. 10, 1984, 1465 U.N.T.S. 85, reprinted in 23 I.L.M. 1027, 1027 (1984). This definition was incorporated into federal regulations. See 8 C.F.R. § 1208.18(a)(1) (2008).
163. See supra notes 72-73 and accompanying text.
164. Jonathan S. Landay, Cheney Confirms That Detainees Were Subjected to Water-Boarding, MCCLATCHY NEWSPAPERS, Oct. 25, 2006, http://www.mcclatchydc.com/190/story/14893.html (quoting then-Vice President Cheney confirming the use of waterboarding and stating that its use is "'a nobrainer'").
165. See supra note 28.
166. Jameel Jaffer & Amrit Singh, ADMINISTRATION OF TORTURE: A DOCUMENTARY RECORD FROM WASHINGTON TO ABU GHRAIB AND BEYOND 44 (2007) (collecting government documents, many obtained by the American Civil Liberties Union through Freedom of Information Act litigation, relating to U.S. detention and interrogation practices);
167. Kristian Williams, AMERICAN METHODS (2006) (discussing U.S. interrogation practices);
168. THE TORTURE PAPERS: THE ROAD TO ABU GHRAIB (Karen J. Greenberg, Joshua L. Dratel & Anthony Lewis eds., 2005) (collecting primary sources related to U.S. interrogation practices).
169. Elaine Scarry, THE BODY IN PAIN 29 (1995).
170. Elaine Scarry, THE BODY IN PAIN 29 (1995). at 35.
171. Elaine Scarry, THE BODY IN PAIN 29 (1995). at 4.
172. As Paul Kahn has written: With the disappearance of the penal spectacle [when torture was carried out publicly] the practice of torture became a secret practice... occur[ing] in places closed to public regard, under conditions of deniability, and by agents whose own relationship to the state is likely to be "shadowy." The modern phenomenon of torture has the opaque presence of the "deniable." It must be known but not seen; it must be spoken of but never speak itself. It is a political practice that cannot exist in a public space. Nevertheless, to be effective the threat of torture must taint the public space. It is always just beyond view.
173. Paul W. Kahn, SACRED VIOLENCE 3 (2008) (footnote omitted).
174. Franz Kafka, THE TRIAL (Edwin Muir & Willa Muir trans., Schocken Books 1968) (1925).
175. Brian Pinaire, The Essential Kafka: Definition, Distention, and Dilution in Legal Rhetoric, 46 U. LOUISVILLE L. REV. 113, 154-55 (2007).
176. The Kafkaesque quality of Guantánamo is similarly captured in Steven T. Wax, KAFKA COMES TO AMERICA 176-77 (2008).
177. For an insightful discussion of the tactics used by the government to disrupt lawyers' relationships with their clients at Guantánamo, and the ethical challenges of representing prisoners there, see David Luban, Lawfare and Legal Ethics in Guantánamo, 60 STAN. L. REV. 1981 (2008).
178. For a more personal account of such challenges, see Marc Falkoff, This Is To Whom It May Concern: A Guantánamo Narrative, 1 DEPAUL J. SOC. JUST. 153 (2008).
179. See Brief for Petitioners at 36 n.62, Al Odah v. United States, 542 U.S. 466 (2004) (No. 03-343), 2004 WL 96764 (noting applicability of the Endangered Species Act, 16 U.S.C. § 1538 (2006), to Cuban iguanas at Guantánamo); Transcript of Oral Argument at 52, Rasul v. Bush, 542 U.S. 466 (2004) (No. 03-334) (Justice Souter noting, "We even protect the Cuban iguana.").
180. See Qassim v. Bush, 407 F. Supp. 2d 198, 200 (D.D.C. 2005).
181. See Clive Stafford-Smith, Editorial, America's Legal Black Hole, L.A. TIMES, Oct. 5, 2007, at A27.
182. Jean-Paul Sartre, NO EXIT, AND THREE OTHER PLAYS (Lionel Abel trans., Vintage Books 1955) (1944).
183. Lewis Carroll, ALICE IN WONDERLAND & THROUGH THE LOOKING GLASS (Grosset & Dunlap 1946) (1865).
184. Neil A. Lewis, Fresh Details Emerge on Harsh Methods at Guantánamo, N.Y. TIMES, Jan. 1, 2005, at A11 ("Military officials have gone to great lengths to portray Guantánamo as a largely humane facility for several hundred prisoners, where the harshest sanctioned punishments consisted of isolation or taking away items like blankets, toothpaste, dessert, or reading material. Maj. Gen. Geoffrey D. Miller, who was the commander of the Guantánamo operation from November 2002 to March 2004, regularly told visiting members of Congress and journalists that the approach was designed to build trust between the detainee and his questioner.").
185. See infra Part II.B.2 for a discussion of the indeterminacy of war crimes as charged by the Bush Administration.
186. See generally U.S. DEP'T OF STATE, EQUATORIAL GUINEA, COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES (Mar. 8, 2006), available at http://www.state.gov/g/drl/rls/hrrpt/2005/61567.htm (documenting the "questionable" use in military trials of evidence obtained through torture);
187. U.S. DEP'T OF STATE, PERU, HUMAN RIGHTS PRACTICES, 1994 (Feb. 1995), available at http://www.freelori.org/gov/statedept/94_perureport.html ("Proceedings in military courts do not meet internationally accepted standards for due process. Military trials are closed to the public and carried out in secrecy.").
188. Presidential Military Order, supra note 71. For a comprehensive history and critique of the military commission system, see David Glazier, A Self-Inflicted Wound: A Half-Dozen Years of Turmoil Over the Guantánamo Military Commissions, 12 LEWIS & CLARK L. REV. 131 (2008) [hereinafter David Glazier, A Self-Inflicted Wound]; Glenn M. Sulmasy, The Legal Landscape After Hamdan: The Creation of Homeland Security Courts, 13 NEW ENG. J. INT'L. & COMP. L. 1 (2006); Detlev F. Vagts, Military Commissions: A Concise History, 101 AM. J. INT'L L. 35 (2007); see also Neal K. Katyal & Laurence H. Tribe, Waging War, Deciding Guilt: Trying the Military Tribunals, 111 YALE L.J. 1259, 1260 (2002) (contending that the President's order for the trial of suspected terrorists is "flatly unconstitutional"); David Glazier, Note, Kangaroo Court or Competent Tribunal?: Judging the 21st Century Military Commission, 89 VA. L. REV. 2005 (2003) (arguing that to comport with legal norms of the twenty-first century and ensure due process, military commissions should have the same procedure as courts martial).
189. Neil A. Lewis, U.S. Charges Two at Guantánamo With Conspiracy, N.Y. TIMES, Feb. 25, 2004, at A1 (reporting that Ali Hamza Ahmed Sulayman al-Bahlul and Ibrahim Ahmed Mahmoud al-Qosi were the first two detainees at Guantánamo Bay charged by the Pentagon); see also News Release, U.S. Dep't of Def., Two Guantanamo Detainees Charged (Feb. 24, 2004), available at http://www.defenselink.mil/releases/release.aspx?releaseid=7088 (reporting the two were charged).
190. Eugene R. Fidell, Dwight H. Sullivan & Detlev F. Vagts, Military Commission Law, 2005 ARMY LAW 47 (2005) (noting that "the commission system's rules are subject to continuous change and, in fact, have been revised in sometimes internally-inconsistent ways" (footnote omitted));
191. David Glazier, Full and Fair by What Measure?: Identifying the International Law Regulating Military Commission Procedure, 24 B.U. INT'L L.J. 55, 58 (2006) ("[T]hough President Bush mandated that the Guantanamo tribunals provide a 'full and fair trial,' observers documented that commissioners essentially made up procedures as the trials proceeded, and that even the presiding officers seemed unable to articulate the legal regimes governing their courts." (footnotes omitted));
192. Neil A. Lewis, Lawyer Says Detainees Face Unfair System, N.Y. TIMES, Jan. 22, 2004, at A25; Memorandum from Amnesty Int'l, to the U.S. Gov't, The Rights of People in U.S. Custody in Afghanistan and Guantánamo Bay (Apr. 2002), http://www.amnesty.org/en/library/asset/AMR51/053/2002/en/c92423a1-d868-11dd-9df8-936c9068 4588/amr510532002en.pdf; Nat'l Ass'n of Crim. Def. Lawyers Ethics Advisory Comm., Op. 03-04 (2003), available at http://www.nacdl.org/public.nsf/2cdd02b415ea3a64852566d6000daa79/ ethicsopinions/$FILE/Ethics_Op_03-04.pdf; Nat'l Inst. of Mil. Just., Statement on Civilian Attorney Participation as Defense Counsel in Military Commissions (2003), available at http://www.nimj.com/ documents/NIMJ_Civ_Atty_Participation_Statement.pdf.
193. The rules governing the military commissions have changed considerably, and nearly constantly, since they were announced by the Presidential Military Order issued in November 2001. See supra note 71. Seemingly in the face of public criticism, the Pentagon issued a series of sometimes contradictory rules and instructions which provided some additional detail on the procedures to be used. See David Glazier, A Self-Inflicted Wound, supra note 149 (chronicling the unfolding rules of the commissions). Following the invalidation of the military commissions by the Supreme Court in Hamdan, Congress's enactment of the MCA established new rules. Id. at 174-85. On May 15, 2009, President Obama stated that he would continue the use of military commissions and announced yet another set of new rules. See Statement of President Barack Obama on Military Commissions, supra note 13.
194. See infra note 274 and accompanying text.
195. As a plurality of the Court explained in Hamdan: The accused and his civilian counsel may be excluded from, and precluded from ever learning what evidence was presented during, any part of the proceeding that either the Appointing Authority or the presiding officer decides to "close." Grounds for such closure "include the protection of information classified or classifiable...; information protected by law or rule from unauthorized disclosure; the physical safety of participants in Commission proceedings, including prospective witnesses; intelligence and law enforcement sources, methods, or activities; and other national security interests."... Appointed military defense counsel must be privy to these closed sessions, but may, at the presiding officer's discretion, be forbidden to reveal to his or her client what took place therein.
196. Hamdan v. Rumsfeld, 548 U.S. 557, 614 (2006) (plurality opinion) (citation omitted) (quoting from and citing to Military Commission Order No. 1 § 6(B)(3) (Mar. 21, 2002), available at http:// www.defenselink.mil/news/Mar2002/d20020321ord.pdf [hereinafter MCO No. 1]). But see id. at 654 (Kennedy, J., concurring) (arguing that MCO No. 1 § 6(D)(5)(b) does not permit admission of secret evidence if such admission would deprive defendant of a "full and fair trial"); id. at 722-23 (Thomas, J., dissenting) (same).
197. Mary Cheh, Should Lawyers Participate in Rigged Systems? The Case of the Military Commissions, 1 J. NAT'L. SECURITY L. & POL'Y 375, 378 (2005).
198. As Cheh notes, however, there were those who believed the commissions to meet fundamental standards of justice. Id. at 378-79 n.17. Notably, Judge James Robertson, the district court judge in Hamdan, who ruled that Salim Hamdan could not be tried by military commission because his prisoner of war status had not been determined by a "competent tribunal," stated, "In most respects, the procedures established for the Military Commission at Guantánamo under the President's order define a trial forum that looks appropriate and even reassuring when seen through the lens of American jurisprudence." Hamdan v. Rumsfeld, 344 F. Supp. 2d 152, 166 (D.D.C. 2004), rev'd, 415 F.3d 33 (D.C. Cir. 2005), rev'd, 548 U.S. 557 (2006).
199. The American Bar Association was among the first organizations to raise concerns about the use of military commissions system. See ABA TASK FORCE ON TERRORISM & THE LAW, REPORT AND RECOMMENDATIONS ON MILITARY COMMISSIONS (Jan. 4, 2002), available at http://www.abanet.org/ leadership/military.pdf;
200. ABA TASK FORCE ON TREATMENT OF ENEMY COMBATANTS, REPORT TO THE HOUSE OF DELEGATES 2 (Aug. 2 2003), available at http://www.nimj.com/documents/ABA_CDC_Corrected_Fin_Rep_Rec_FULL_0803.pdf (noting that the military commission rules "as now drafted, do not sufficiently guarantee that CDC [civilian defense counsel] will be able to render zealous, competent, and effective assistance of counsel to detainees");
201. Letter from William H. Neukom, President, Am. Bar Ass'n, to the President of the United States (Feb. 27, 2008), available at http://www.abanet.org/poladv/letters/antiterror/2008feb27_detainees_l.pdf. The National Association of Criminal Defense Lawyers and the Association of the Bar of the City of New York have also been important critics. See Nat'l Assoc. of Crim. Def. Lawyers, Ethics Advisory Comm., Opinion 03-04 (2003);
202. Letter from Barry M. Kamins, President, Ass'n of the Bar of the City of New York, to Senator Patrick Leahy et al. (Mar. 12, 2008), available at http://www.nycbar.org/pdf/report/Guantanamo_MC311.pdf.
203. Perhaps most notable among the international criticism was that from the United Kingdom, whose attorney general, Lord Peter Goldsmith, objected publicly in 2004 to the use of military commissions for British citizens then detained at Guantánamo, stating: [W]hile we must be flexible and be prepared to countenance some limitation of fundamental rights if properly justified and proportionate, there are certain principles on which there can be no compromise.
204. Fair trial is one of those-which is the reason we in the U.K. have been unable to accept that the U.S. military tribunals proposed for those detained at Guantanamo Bay offer sufficient guarantees of a fair trial in accordance with international standards.
205. Attorney Gen, Lord Peter Goldsmith, Address at the Cour de Cassation on the Centenary of the Entante Cordiale, (June 25, 2004), available at http://news.bbc.co.uk/2/hi/uk_news/politics/3839153.stm.
206. See also Lord Johan Steyn, Judicial Member, British House of Lords, Guantanamo Bay: The Legal Black Hole, 27th F.A. Mann Lecture (Nov. 25, 2003), available at http://www.statewatch.org/news/2003/nov/ guantanamo.pdf (arguing that the treatment of prisoners at Guantánamo does not comply with international standards for fair trials).
207. See infra note 178 and accompanying text.
208. In November 2006, the Bush Administration proposed spending up to $125 million to build new commission facilities at Guantánamo. See Federal Business Opportunities, Legal Compound at Guantanamo Bay, Cuba, http://www.fbo.gov (follow "Opportunities" hyperlink) (last visited Apr. 17, 2009). The proposal was subsequently shelved after it became public and faced criticism from the newly elected Congress. See Carol Rosenberg, Plans to Build Courthouse at Guantánamo Bay Revised, MIAMI HERALD, Dec. 10, 2006, available at http://www.miamiherald.com/1377/story/320156.html.
209. See Email from Major Gen. John Altenburg, Jr., Appointing Auth. for Military Comm'ns, to Keith Hodges, Assistant to the Presiding Officers (Jan. 5, 2006, 12:51 EST) (on file with author) ("Presiding Officers will wear black judicial robes like those worn by Military Judges at Army and Air Force courts-martial and by civilian judges throughout the United States.").
210. Neil A. Lewis, Pentagon Charges 5 More in Guantánamo Bay Camp, N.Y. TIMES, Nov. 8, 2005, at A22.
211. See Email from Keith Hodges, Assistant to the Presiding Officers, to Chief Prosecutor, Chief Defense Counsel, and Chief Paralegals for Prosecution and Defense (Jan. 3, 2006) (on file with author) (attaching trial script developed by the Office of the Presiding Officers).
212. Peter Gabel & Paul Harris, Building Power and Breaking Images: Critical Legal Theory and the Practice of Law, 11 N.Y.U. REV. L. & SOC. CHANGE 369, 373 (1982-83).
213. Id. at 372 (footnote omitted).
214. See Ex Parte Quirin, 317 U.S. 1 (1942).
215. Hamdan v. Rumsfeld, 548 U.S. 557, 593-94 (2006).
216. Presidential Military Order, supra note 71, at 57,835.
217. Carol Rosenberg, War-Crimes Hearings Resume in Controversy, MIAMI HERALD, Jan. 16, 2006, at 25A (quoting military defense attorney, Army Maj. Tom Fleener, "If I hear 'full and fair trial' one more time, it's going to make me sick.").
218. Draft Transcript of Proceedings at 447, United States v. Omar Ahmed Khadr (No. 05008) (Apr. 5, 2006) (on file with author). Later in the same proceeding, the presiding officer elaborated: I think that we will look to international law, I think that we will look through military law, I think that we will look through federal criminal law, I think that we will look at a lot of sources to-to flesh out the procedural rules that govern this proceeding. The purpose or the obligation of counsel is that as they see issues and they need it resolved, they file motions, they brief motions, they cite what they think is appropriate authority, and then I decide it. If counsel have a question as to the-what law is applicable, then-then it's their obligation to file a motion.
219. Draft Transcript of Proceedings at 448, United States v. Omar Ahmed Khadr (No. 05008) (Apr. 5, 2006) (on file with author). Later in the same proceeding, the presiding officer elaborated: I think that we will look to international law, I think that we will look through military law, I think that we will look through federal criminal law, I think that we will look at a lot of sources to-to flesh out the procedural rules that govern this proceeding. The purpose or the obligation of counsel is that as they see issues and they need it resolved, they file motions, they brief motions, they cite what they think is appropriate authority, and then I decide it. If counsel have a question as to the-what law is applicable, then-then it's their obligation to file a motion
220. This approach stands in sharp contrast to that taken by the Supreme Court in Hayburn's Case. See 2 U.S. (2 Dall.) 409 (1792). Only two years after the Court was formed, the Attorney General asked the Court what "system of practice" it would follow, to which the Court responded, "The Court considers the practice of the Courts of King's Bench and Chancery in England as affording outlines for the practice of this court; and that they will, from time to time, make such alterations therein, as circumstances may render necessary." Id. at 411, 413-14. My thanks to Gautam Huded for this example.
221. Ruling on Defense Motion for the Production of Witness John D. Altenburg, Jr. at 2, United States v. Khadr (June 7, 2006) (on file with author).
222. Defense Renewed Motion to Compel Production of Witness John D. Altenburg, Jr. at 1, United States v. Khadr (June 21, 2006) (on file with author).
223. Ruling on Defense Motion to Renew Their Motion for the Production of Mr. Altenberg [sic], United States v. Khadr (June 22, 2006) (on file with author).
224. U.S. Dep't of Def., Presiding Officers Memorandum #16, Rules of Commission Trial Practice Concerning Decorum of Commission Personnel, Parties, and Witnesses 2 (Feb. 16, 2006), available at http://www.defenselink.mil/news/Feb2006/d20060217POM16.pdf [hereinafter POM 16] (stating that "[t]he decorum and dignity to be observed by all at the proceedings of these Military Commissions will be the same as that observed in military and Federal courts of the United States").
225. POM 16 specifically mandates that "[a]ll communications, whether written or oral, should be couched in civil, non-sarcastic language, focusing on the factual or legal disputes." Id. at 5 (emphasis added).
226. Defense Renewed Motion to Compel Production of Witness Mr. John D. Altenburg, Jr., United States v. Khadr (Revised) (June 26, 2006). The D.C. Circuit has since invoked Lewis Carroll to deride the government's use of unreliable evidence in its attempt to establish enemy combatancy: [T]he government suggests that several of the assertions in the intelligence documents are reliable because they are made in at least three different documents. We are not persuaded. Lewis Carroll notwithstanding, the fact that the government has "said it thrice" does not make an allegation true. See LEWIS CARROLL, THE HUNTING OF THE SNARK 3 (1876) ("I have said it thrice: What I tell you three times is true.").
227. Parhat v. Gates, 532 F.3d 834, 848-49 (D.C. Cir. 2008).
228. See Military Commissions Act, 10 U.S.C. §§ 948-950 (2006).
229. See Hamdan v. Rumsfeld, 548 U.S. 557, 590-95 (2006).
230. Omar Khadr was recharged under the new commission system. United States v. Khadr, Charge Sheet, Apr. 5, 2007, available at http://www.defenselink.mil/news/Apr2007/Khadrreferral.pdf. However, the charges against him were subsequently dismissed after a military judge concluded that he lacked jurisdiction over the case.
231. See United States v. Khadr, Order on Jurisdiction, June 4, 2007, available at http://www.scotusblog.com/movabletype/archives/Brownback6-4-07.pdf (dismissing charges for lack of jurisdiction);
232. United States v. Khadr, Disposition of Prosecution Motion for Reconsideration P 001, June 29, 2007, available at http://www.scotusblog.com/movabletype/archives/2007/06/court_1.html (denying government's motion to reconsider, and providing fuller explanation of dismissal of charges). Although the decision was subsequently overturned on appeal, United States v. Khadr, CMCR No. 07-001, Sept. 24, 2007, available at http://www.scotusblog.com/movabletype/archives/CMCR%20ruling%209-24-07.pdf, and the case against Omar continued, these decisions suggested a greater measure of rigor to the post-MCA system. However, the commissions remained the target of criticism, and on his first day in office, President Obama ordered military prosecutors to seek a 120-day continuance in all pending military commission cases, including Omar's.
233. See United States v. Khadr, Government Motion: Request for 120-Day Continuance in the Interests of Justice, Jan. 20, 2009, available at http://www.defenselink.mil/news/P%20011.pdf (arguing that continuance is "in the interests of justice, as it will permit the newly inaugurated President and his Administration to undertake a thorough review of both the pending cases and the military commissions process generally");
234. Peter Finn, Obama Seeks Halt to Legal Proceedings at Guantanamo, WASH. POST., Jan. 21, 2009, at A2.
235. Josh White, From Chief Prosecutor to Critic at Guantanamo, WASH. POST, Apr. 29, 2008, at A1 (relating comments by Davis that Pentagon officials pressured him to bring cases that could have "strategic political value" in an election year). Colonel Davis took the unusual step of testifying about his claims of political interference in the military commission proceedings for Salim Hamdan. Id. Davis is not the only military critic. Army Brigadier General Gregory Zanetti, the deputy commander of the military task force running the detention operation at Guantánamo, has stated, "The strategy seemed to be spray and pray, let's go, speed, speed, speed... Charge 'em, charge 'em, charge 'em and let's pray that we can pull this off." Jane Sutton, Guantanamo Trials Put Generals at Odds, REUTERS, Aug. 13, 2008, available at http://www.reuters.com/article/domesticNews/idUSN1337894520080813. Zanetti went on to describe Brigadier General Thomas Hartmann, the legal advisor to the military commissions convening authority, as "abusive, bullying and unprofessional." Id. Hartmann has insisted that he "viewed it as his mission to get the trials moving but in a fair and transparent manner. He acknowledged telling prosecutors he wanted cases that would 'capture the public's imagination.'"Id.
236. William Glaberson, Panel Convicts Bin Laden Driver in Split Verdict, N.Y. TIMES, Aug. 7, 2008, at A1.
237. See id. A New York Times editorial lambasted the government for pursuing its case against such a low-level figure as Hamdan, and for affording so substandard a trial, concluding: "Mr. Bush's supporters have been crowing over the Hamdan verdict as if it were some kind of a triumph. In truth, it is a hollow victory in the war on terror, a blow to America's standards of justice and image in the world." Editorial, The United States v. the Driver, N.Y. TIMES, Aug. 10, 2008, at WK9. In November 2008, Hamdan was sent to Yemen to serve out his remaining unsuspended sentence, and in January 2009, he was released by the Yemeni government. Yemen Frees Former bin Laden Driver After Jail Term Ends, REUTERS, Jan. 11, 2009, available at http://www.reuters.com/article/newsMaps/idUSTRE50A2JR2009 0111.
238. See Presidential Military Order, supra note 71, at 57,833 ("Given the danger to the safety of the United States and the nature of international terrorism, and to the extent provided by and under this order, I find consistent with section 836 of title 10, United States Code, that it is not practicable to apply in military commissions under this order the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts.").
239. Carl Schmitt, POLITICAL THEOLOGY: FOUR CHAPTERS ON THE THEORY OF SOVEREIGNTY 1-15 (George Schwab trans., MIT Press 1985) (1934).
240. Giorgio Agamben, STATE OF EXCEPTION (Kevin Attell trans., 2005).
241. Sanford Levinson, Constitutional Norms in a State of Permanent Emergency, 40 GA. L. REV. 699 (2006).
242. Stephen Humphreys, Legalizing Lawlessness: On Giorgio Agamben's State of Exception, 17 EUR. J. INT'L L. 677, 678 (2006) (book review) (discussing two schools of thought regarding the state of exception as identified by Agamben).
243. See supra Part I.A.
244. Austin Sarat and Nasser Hussain provide an insightful analysis of how a constitutive lawlessness of law can benefit a criminal defendant. See Austin Sarat & Nasser Hussain, On Lawful Lawlessness: George Ryan, Executive Clemency, and the Rhetoric of Sparing Life, 56 STAN. L. REV. 1307 (2004). They describe executive clemency as "lawful lawlessness" and ask, "How does a system of rules understand and accommodate the exercise of a power that is by its very nature unbound by rules?" Id. at 1314.
245. Mark Tushnet, Meditations on Carl Schmitt, 40 GA. L. REV. 877, 886 (2006); see also Levinson, supra note 185, at 736 ("I increasingly believe... that the discussion of emergency powers is ultimately a profoundly political one, with law, at least as traditionally conceived, having relatively little to do with the resolution of any truly live controversy.").
246. Tushnet, supra note 189, at 886.
247. Neuman, supra note 84, at 1233.
248. See generally CRITICAL LEGAL STUDIES (Peter Fitzpatrick & Alan Hunt eds., 1987) (discussing principal insights of Critical Legal Studies).
249. See supra Part II.A.
250. Our military co-counsel, Colonel Vokey, questioned the use of the term, "Commission Law," by the presiding officer: DC [DEFENSE COUNSEL]: By "Commission Law," sir, are you referring to the Military Commission Orders, the[-]?
251. PRESIDING OFFICER: Regulations, the Military Commission's Instructions, the Presidential Military Order, the POMs [Presiding Officer Memoranda], and anything else that applies. We use Commission Law as a shorthand for trying to encapsulate all that.
252. DC: All right, sir, but the term, "Commission Law," is not really law, is it?
253. PRESIDING OFFICER: Do you have a question, Colonel Vokey?
254. DC: Well the term, "Commission's Law," was that developed by yourself, or as a Presiding Officer?
255. PRESIDING OFFICER: That's developed as a shorthand. I don't know where it came from originally. I believe it does appear somewhere in either the POMs or MCIs [Military Commission Instructions] or somewhere, but I am not sure.
256. DC: All right, sir-PRESIDING OFFICER: But again, Colonel Vokey, it is a shorthand, it is not intended as a term of art or anything else. It is intended as a shorthand to capture the things that apply to this Commission.
257. DC: All right, sir. So for shorthand, we can use Military Commission's Regulations the same way?
258. PRESIDING OFFICER: I am not sure what you mean?
259. DC: Instead of calling it law, because you have to agree it is not law, right, sir?
260. PRESIDING OFFICER: No, I don't agree it is not law. If you want to call it, "regulations," then you call it regulations. I am going to refer to it as "Commission Law," and I would hope that you would be able to follow me. Let's move on, please.
261. Draft Transcript of Proceedings at 437-39, United States v. Khadr (No. 05008) (Apr. 5, 2006) (on file with author).
262. Cover, Folktales of Justice, supra note 113, at 174-75 (footnotes omitted).
263. Marie Brenner, Taking on Guantánamo, VANITY FAIR, Mar. 2007, at 328, 335 (quoting Judge Advocate General (JAG) defense attorney, Air Force Colonel Will Gunn, as stating: "It was made clear to me that our access to [Guantánamo Bay] was contingent on our getting a guilty plea from [Salim] Hamdan");
264. Nat Hentoff, Eroding Detainees Rights; Administration Shows Disregard for Prisoners' Attorneys, WASH. TIMES, Oct. 30, 2006, at A19 ("Lt. Cmdr. Swift said he had been commanded by Pentagon superiors to negotiate a guilty plea by Hamdan in 2003.");
265. Neil A. Lewis, Military's Lawyers for Detainees Put Tribunals on Trial, N.Y. TIMES, May 4, 2004, at A1 (quoting military defense lawyers describing the tribunals as "fundamentally flawed" and "inherently unfair and rigged").
266. Email from Captain John Carr, Department of Defense Office of the General Counsel, to Colonel Fred Borch, Department of Defense Office of the General Counsel (Mar. 15, 2004, 07:56 AM) (on file with author).
267. White, supra note 178 (reporting testimony from Colonel Morris Davis quoting Department of Defense General Counsel William Haynes II as saying, "'We can't have acquittals... We've been holding these guys for years. How can we explain acquittals? We have to have convictions.'").
268. See infra notes 232-233.
269. David G. Savage, Bush Order for Military Tribunals Gets Several Thumbs Down, L.A. TIMES, Nov. 15, 2001, at A26;
270. William R. Slomanson, Should We Try Bin Laden in Court?, SAN DIEGO UNION-TRIBUNE, Nov. 7, 2001, at B9.
271. Peter Jan Honigsberg, Chasing "Enemy Combatants" and Circumventing International Law: A License for Sanctioned Abuse, 12 UCLA J. INT'L L. & FOREIGN AFF. 1, 46-70 (2007) (tracing the usage of "enemy combatant").
272. Boumediene v. Bush, 583 F. Supp. 2d 133, 134, 135 (D.D.C. 2008) (Leon, J.) (considering a newly revised, and more expansive, definition of "enemy combatant" proffered by the government, and a narrower definition proffered by prisoners' counsel, reporting the court's inclination to "end up somewhere in the middle," and ultimately adopting the definition used in the Combatant Status Review Tribunals (CSRTs)). For a discussion of the CSRTs, see infra note 220 and accompanying text. The definition of "enemy combatant" has also been taken up by the Fourth Circuit. See Al-Marri v. Pucciarelli, 534 F.3d 213 (4th Cir. 2008) (en banc) (per curiam), vacated as moot sub nom. Al-Marri v. Spagone, 129 S. Ct. 1545 (2009).
273. Jean-Marie Henckaerts & Louise Doswald-Beck, 1 CUSTOMARY INTERNATIONAL HUMANITARIAN LAW 3-24 (Cambridge 2005) (explaining the distinctions between civilians and combatants);
274. Knut Ipsen, Combatants and Non-Combatants, in THE HANDBOOK OF HUMANITARIAN LAW IN ARMED CONFLICTS 65-68 (Deiter Fleck ed., 1995) (explaining the rules for combatants and noncombatants in international law).
275. International Humanitarian Law (IHL) is based on a fundamental principle of distinction: all parties to an armed conflict must distinguish between combatants and civilians. By definition, a combatant's status as a member of the armed forces of a party to an armed conflict vests the individual with a right to directly engage in hostilities provided those acts comport with other IHL provisions governing lawful targets and methods of attack. Thus, in addition to enjoying POW status, a legal presumption exists conferring immunity on lawful combatants for acts committed during periods of armed conflict, in effect, barring prosecution of such combatants for the "mere fact of fighting." Ipsen, supra, at 68. In contrast, a civilian's presumed status as a noncombatant confers on him immunity from attack. But where a civilian directly participates in hostilities, he generally forfeits this immunity and will be treated as an unlawful combatant. Because unlawful combatants lack the protective shield of POW status, if captured, an unlawful combatant can be subject to domestic prosecution under a state's criminal law. Id.
276. See Hamdi v. Rumsfeld, 542 U.S. 507, 518 (2004) (noting that the capture and detention of combatants-whether lawful or unlawful-to prevent their return to the battlefield is recognized by "universal agreement and practice" as "important incident[s] of war" (quoting Ex Parte Quirin, 317 U.S. 1, 28, 30 (1942)) (alteration in original)).
277. Letter from William J. Haynes II, Gen. Counsel, Dep't of Def., to Sen. Carl Levin, Chairman, Comm. on Armed Servs. (Nov. 26, 2002), at 1, available at http://www.nimj.com/documents/dodletter.pdf ("An 'enemy combatant' is an individual who, under the laws and customs of war, may be detained for the duration of an armed conflict.").
278. Presidential Military Order, supra note 71, at 57,834. The presidential military order did not itself use the term "enemy combatant," but soon after its promulgation, Bush Administration officials began using "enemy combatant" as a shorthand for those subject to the order. The order also requires that it be in the interest of the United States that such individuals be subject to the order, though this adds no substantive requirement to the "enemy combatant" definition. Id. § 2(a)(2), at 57,834.
279. Presidential Military Order, supra note 71, at 57,834.
280. 542 U.S. 507 (2004).
281. Id. at 510 (plurality opinion).
282. Id. at 516 (plurality opinion).
283. Id. (citing Brief for Respondents at 3, Hamdi, 542 U.S. 507 (No. 03-6696), 2004 WL 724020). The government's brief did not explicitly limit its "enemy combatant" definition to Afghanistan, though the Court read in this limitation. See Brief for Respondents, supra, at 24-34.
284. Hamdi, 542 U.S. at 510.
285. Id. at 509.
286. 542 U.S. 466 (2004).
287. Id. at 483-84.
288. The Supreme Court handed down the Hamdi and Rasul decisions on June 30, 2004. A Department of Defense memorandum issued on July 7, 2004 by then-Deputy Secretary of Defense Paul Wolfowitz created the CSRT procedure. See Memorandum from Paul Wolfowitz, Deputy Sec'y of Def., to Gordon R. England, Sec'y of the Navy, Order Establishing Combatant Status Review Tribunal (July 7, 2004) [hereinafter Wolfowitz Memo], available at http://www.defenselink.mil/news/Jul2004/d200407 07review.pdf.
289. See generally The Guantanamo Detainees' Second Supplemental Brief Addressing the Effect of the Detainee Treatment Act of 2005 on this Court's Jurisdiction Over the Pending Appeals at 38-40, Al Odah v. United States, 282 F. App'x 844 (D.C. Cir. 2008) (Nos. 05-5064, 05-5095 to 05-5116), 2006 WL 679965 (documenting how CSRTs deprived prisoners access to counsel, permitted the use of evidence obtained through torture, and barred any meaningful opportunity by prisoners to contest the charges brought against them); In re Guantanamo Detainee Cases, 355 F. Supp. 2d 443, 468 (D.D.C. 2005) ("[T]he CSRT failed to provide any detainee with sufficient notice of the factual basis for which he is being detained and with a fair opportunity to rebut the government's evidence supporting the determination that he is an 'enemy combatant.'"); MARK DENBEAUX & JOSHUA DENBEAUX, NO-HEARING HEARINGS: CSRT: THE MODERN HABEAS CORPUS? (2006), available at http://law.shu.edu/news/final_no_hearing_hearings_report.pdf (analyzing CSRT hearings of 393 prisoners); Kristine A. Huskey, Standards and Procedures for Classifying "Enemy Combatants": Congress, What Have You Done?, 43 TEX. INT'L L.J. 41, 46-50 (2007).
290. Wolfowitz Memo, supra note 220, at
291. With the enactment of the Military Commissions Act (MCA), the CSRT's role became more complicated because it distinguished for purposes of jurisdiction under the MCA a "lawful enemy combatant" from an "unlawful enemy combatant," where only the latter of which could be tried under the MCA. See Military Commissions Act of 2006, Pub. L. No. 109-366, § 948d(a), 120 Stat. 2600 (codified at 10 U.S.C. §§ 948-50; 18 U.S.C. § 2441; and 28 U.S.C. § 2241(c)-(e) (2006)) ("[M]ilitary commission[s] under this chapter shall have jurisdiction... [over] alien unlawful enemy combatant[s]."). In contrast, the CSRT made no determination as to whether a prisoner's combatancy was "lawful" or "unlawful."
292. Further complicating matters, the MCA codified two separate substantive (and arguably contradictory) definitions of "unlawful enemy combatant": (1) "a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces"; or (2) "a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense." 10 U.S.C. § 948a(1). Yet because, pursuant to the Wolfowitz Memo, a CSRT lacked the authority to distinguish between a "lawful enemy combatant" and an "unlawful enemy combatant," the second definition offered by the MCA is facially invalid. See Wolfowitz Memo, supra note 220, at ¶ d (giving the CSRT only the authority to review the classification of "enemy combatant," not the authority to make such a classification).
293. Anyone determined to be an "enemy combatant" by a CSRT would thus fail the jurisdictional threshold of an "unlawful enemy combatant" that was required for trial under the MCA.
294. This contradiction ended with the first ever decision by the Court of Military Commission Review, an appellate body created by the MCA, which held that while military commissions created under the MCA only had jurisdiction over "unlawful enemy combatants," military judges presiding over commissions could independently determine whether a prisoner is in fact an "unlawful enemy combatant." United States v. Khadr, CMCR 07-001 (2007), available at http://www.defenselink.mil/news/Sep2007/ KHADR%20Decision%20(24%20Sep%2007)(25%20pages).pdf.
295. See, e.g., First Amended Petition for a Writ of Habeas Corpus at 4, Boumediene v. Bush, 450 F. Supp. 2d 25 (D.D.C. 2006) (No. 04-1166), 2004 WL 5225826 (seeking a writ of habeas corpus for Belkacem Bensayeh, a prisoner captured in Bosnia); Petition for Writ of Habeas Corpus at 2, El-Banna v. Bush, No. 04-01144 (D.D.C. July 8, 2004) (seeking a writ of habeas corpus for Jamil El-Banna and Bisher Al-Rawi, two prisoners captured in Gambia, as well as Martin Mubanga, a prisoner captured in Zambia).
296. See Hamdan v. Rumsfeld, 548 U.S. 557, 569-70 (2006).
297. See In re Guantanamo Detainee Cases, 355 F. Supp. 2d 443, 470 (D.D.C. 2005) (discussing how a CSRT found Murat Kurnaz to be an "enemy combatant" merely because he befriended an alleged suicide bomber at a mosque in Germany (citing Kurnaz Factual Return, Enclosure (1) at 2-3, Kurnaz v. Bush, 04-CV-1135ESH)).
298. Guantanamo Detainee Cases, 355 F. Supp. 2d at 475 (alteration in original) (citations omitted), vacated by Boumediene v. Bush, 476 F.3d 981 (D.C. Cir. 2007), cert. granted sub nom. Al Odah v. United States, 551 U.S. 1161 (2007).
299. Wolfowitz Memo, supra note 220, at
300. It is questionable whether any such reviews ever were performed. In litigation challenging the CSRT determinations, the government resisted court orders to produce complete records of its "enemy combatant" determinations even for the CSRTs, much less for reviews purported to have been performed beforehand. Yet in a decision rendered February 1, 2008, the United States Court of Appeals for the District of Columbia denied the Bush Administration's petition for rehearing en banc, thus affirming an earlier panel decision ordering the government to produce classified evidence used for CSRT determinations of whether a prisoner was an "enemy combatant." See Bismullah v. Gates, 514 F.3d 1291 (D.C. Cir. 2008) (per curiam).
301. See supra note 206.
302. Pub. L. No. 107-40, 115 Stat. 224 (2001) (codified at 50 U.S.C. § 1541 (2006)).
303. See Respondents' Memorandum Regarding the Government's Detention Authority Relative to Detainees Held at Guantanamo Bay at 1, 3-8, In re Guantanamo Bay Detainee Litig., Misc. No. 08-442, (D.D.C. Mar. 13, 2009); Press Release, U.S. Dep't of Justice, Department of Justice Withdraws "Enemy Combatant" Definition for Guantánamo Detainees (Mar. 13, 2009), http://www.usdoj.gov/ opa/pr/2009/March/09-ag-232.html. Soon after this announcement, Secretary of State Hillary Clinton stated that the Administration would no longer use the term "war on terror," signaling a broad rhetorical shift away from the Bush Administration. See Jay Solomon, U.S. Drops "War on Terror" Phrase, Clinton Says, WALL ST. J., Mar. 31, 2009, available at http://online.wsj.com/article/SB12384512369037 1231.html.
304. Noah Feldman, Op-Ed., A Prison of Words, N.Y. TIMES, Mar. 18, 2009, at A31 (noting that the government's "refined" position on its detention authority, requiring a showing of "substantial support" for terrorism, "is potentially broad enough to continue detaining everyone whom the Bush administration put in Guantánamo in the first place").
305. See Qassim v. Bush, 382 F. Supp. 2d. 126, 127 (D.D.C. 2005).
306. Id. at 127-28 n.3.
307. Qassim v. Bush, 407 F. Supp. 2d 198, 200 (D.D.C. 2005).
308. See 10 U.S.C. § 821 (2006).
309. See Military Commission Instruction No. 2, 32 C.F.R. § 11.6 (2005).
310. Hamdan v. Rumsfeld, 548 U.S. 557, 603-04 (2006) (Stevens, J., plurality opinion). Justice Kennedy did not reach this issue. See id. at 653 (Kennedy, J., concurring).
311. Charge Sheet, United States v. Khadr (charging Khadr with conspiracy, murder by an unprivileged belligerent, attempted murder by an unprivileged belligerent, and aiding the enemy), available at http://www.defenselink.mil/news/Nov2005/d20051104khadr.pdf.
312. The question of whether to criminalize unprivileged belligerency for otherwise lawful acts is subject to some dispute, but appears to lack any historical support. See Derek Jinks, The Declining Significance of POW Status, 45 HARV. INT'L L.J. 367, 436-39 (2004).
313. 10 U.S.C. § 950v (2006).
314. Id. § 950p.
315. See Hamdan, 548 U.S. at 602-13 (plurality opinion). But see Mark A. Drumbl, ATROCITY, PUNISHMENT, AND INTERNATIONAL LAW 38-41 (2007) (discussing inchoate and collective responsibility in international law, including use of joint criminal enterprise theory).
316. For a discussion of ex post facto problems with conspiracy and material support for terrorism charges in military commissions, see Peter Margulies, Guantanamo By Other Means: Conspiracy Prosecutions and Law Enforcement Dilemmas After September 11, 43 GONZ. L. REV. 513, 538-40 (2008).
317. Another prisoner, David Hicks, was charged with "attempted murder by an unprivileged belligerent," but that charge was subsequently dropped as part of a plea agreement that led to his release in March 2007. See sources cited infra notes 267-268.
318. See Rome Statute of the International Criminal Court art. 8(2), July 17, 1998, 2187 U.N.T.S. 90, 37 I.L.M. 1002 (omitting any reference to an individual's status, whether lawful or unlawful, as determinative to the definition of a "war crime" within the jurisdiction of the International Criminal Court); YORAM DINSTEIN, THE CONDUCT OF HOSTILITIES UNDER THE LAW OF INTERNATIONAL ARMED CONFLICT 233 (2004) (arguing that a combatant's unlawful status does not, alone, constitute a war crime; rather, only where an unlawful combatant commits a serious breach of the International Humanitarian Law-e.g., murder of a protected person-can he be prosecuted under international law).
319. 10 U.S.C. § 950v(b)(15) (2006).
320. Id. § 950v(b)(1). The MCA properly defines a protected person to include "any person entitled to protection under one or more of the Geneva Conventions, including-(A) civilians not taking an active part in hostilities; (B) military personnel placed hors de combat by sickness, wounds, or detention; and (C) military medical or religious personnel." Id.
321. Charge Sheet, United States v. Khadr, supra note 59.
322. Austin Sarat, "...The Law Is All Over": Power, Resistance and the Legal Consciousness of the Welfare Poor, 2 YALE J.L. & HUMAN. 343, 343 n.1 (1990) (using legal consciousness as interchangeable with legal ideology);
323. David M. Trubek, Where the Action Is: Critical Legal Studies and Empiricism, 36 STAN. L. REV. 575, 592 (1984) (defining legal consciousness as "all the ideas about the nature, function, and operation of law held by anyone in society at a given time").
324. See supra note 177 and accompanying text.
325. See Sarat, supra note 252, at 343 (quoting a man on public assistance as saying, "For me the law is all over. I am caught, you know; there is always some rule that I'm supposed to follow, some rule I don't even know about that they say.").
326. These arguments were made before the Supreme Court decided Hamdan v. Rumsfeld, 548 U.S. 557 (2006), in which it found the protections of Common Article 3 of the Geneva Conventions applicable to the prisoners. See supra note 101 and accompanying text.
327. See Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, May 25, 2000, S. Treaty Doc. No. 106-37, 2173 U.N.T.S. 222.
328. Robert K. Goldman & Brian D. Tittemore, Unprivileged Combatants and the Hostilities in Afghanistan: Their Status and Rights Under International Humanitarian Law and Human Rights Law, TASK FORCE PAPERS (Am. Soc'y of Int'l Law, Presidential Task Force on Terrorism, Washington, D.C.), Dec. 2002, at 33, available at http://www.asil.org/taskforce/goldman.pdf ("That the United States must afford certain minimum human rights protections to unprivileged enemy combatants who fall into its hands in the course of an international armed conflict is dictated by treaty and customary norms to which it is bound under international human rights and humanitarian law.").
329. This is consistent with the view of many Critical Legal Studies scholars.
330. For a discussion of the distinction between tactics and strategy, see Michel de Certeau, THE PRACTICE OF EVERYDAY LIFE (Steven Rendall trans., 1984).
331. Richard L. Abel, POLITICS BY OTHER MEANS: LAW IN THE STRUGGLE AGAINST APARTHEID, 1980-94, at 3 (1995).
332. Richard Abel, Speaking Law to Power: Occasions for Cause Lawyering, in CAUSE LAWYERING: POLITICAL COMMITMENTS AND PROFESSIONAL RESPONSIBILITIES 69, 102-03 (Austin Sarat & Stuart Scheingold eds., 1998).
333. See Hamdan v. Rumsfeld, 548 U.S. 557, 557 (2006).
334. See generally FOUCAULT, supra note 22 (arguing that power is dispersed among multiple and unequal relational actors, rather than emanating solely from institutions).
335. See supra note 157 and accompanying text.
336. Lizette Alvarez, Last 4 Britons at Guantánamo Return, N.Y. TIMES, Jan. 26, 2005, at A6;
337. Alan Cowell, Five Britons Released From Guantánamo Arrive Home, N.Y. TIMES, Mar. 10, 2004, at A8.
338. Raymond Bonner, A Lawyer in Marine Corps Khaki Wins Australian Support for His Guantánamo Client, N.Y. TIMES, Dec. 1, 2006, at A16 (describing efforts of Hicks's military defense lawyer, Major Dan Mori, and support garnered from celebrities such as Bono to Australian politicians);
339. Raymond Bonner, World Briefing Australia: Lawmakers Appeal For Guantánamo Release, N.Y. TIMES, Feb. 3, 2007, at A2 (reporting that nearly half of Australia's Parliament signed a letter to Speaker of the House Nancy Pelosi requesting Hicks's return);
340. Military QC Slams Hicks Trial Process, AUSTRALIAN, Aug. 2, 2005, available at http://www.theaustralian.news.com.au/story/0,20867,16125839-1702,00.html.
341. William Glaberson, Plea of Guilty From Detainee in Guantánamo, N.Y. TIMES, Mar. 27, 2007, at A1.
342. Raymond Bonner, Critics Say Australian Leader Was Alert to Politics in Detainee Deal, N.Y. TIMES, Apr. 1, 2007, at A27;
343. Misha Schubert & Mark Coultan, Outcry Over Hicks Sentence 'Fix', THE AGE, Apr. 2, 2007, available at http://www.theage.com.au/news/national/outcry-over-hicks-sentence-fix/2007/04/01/1175366078719.html.
344. JEREMY BENTHAM, A Critical Examination of the Declaration of Rights, in BENTHAM'S POLITICAL THOUGHT 257, 269 (Bhikhu Parekh ed., 1973).
345. Jules Lobel, Courts as Forums for Protest, 52 UCLA L. REV. 477 (2005).
346. Jules Lobel, Courts as Forums for Protest, 52 UCLA L. REV. 483 (2005).
347. See infra Part IV.
348. See Gabel & Harris, supra note 163, at 375-79 (advocating power-based lawyering as preferable to rights-based approaches).
349. The original rules of the military commissions included no rule regarding the admissibility of evidence obtained through torture, and on March 1, 2006, the spokesperson for the Office of Military Commissions stated that under those rules, evidence obtained through torture could be admitted. See Carol Rosenberg, Hearings May Consider Torture, MIAMI HERALD, Mar. 2, 2006, at A3 (quoting Air Force Major Jane Boomer as saying, "Hypothetically, is it possible? Do the rules allow for it?... Yes."). Major Tom Fleener, a military defense lawyer assigned to represent a prisoner named Ali Hamza al Bahlul, pressed the issue with Colonel Peter Brownback, the presiding officer in al Bahlul's case, but Brownback refused to categorically prohibit evidence obtained through torture, stating only that: "My personal belief is torture is not good." Id. Brownback also suggested that he and Fleener might have different understandings of what constitutes torture, though he ultimately agreed that "poking a person in the eye with a redhot needle" would be torture. Id. On March 22, 2006, just days before the Supreme Court would hear argument in Hamdan v. Rumsfeld, which challenged the legality of the commissions, the Pentagon announced its intention to forbid evidence obtained through torture. See Carol Rosenberg, U.S. Bars Any Evidence Resulting From Torture, MIAMI HERALD, Mar. 23, 2006, at A3. The rule, eerily titled "Certain Evidentiary Determinations," was issued on March 24, 2006. See DEP'T OF DEFENSE, MILITARY COMM'N INSTRUCTION NO. 10, at 1 (2006), available at http://www.defenselink.mil/news/Mar2006/d20060327MCI10.pdf. While the new rule does prohibit evidence obtained through torture, it fails to address evidence obtained through cruel, inhuman, or degrading treatment. Id. at 2.
350. While these additional admissibility issues were ultimately addressed in the Military Commissions Act of 2006, the end result is that statements obtained through cruel, inhuman, and degrading treatment may still be admissible. The MCA prohibits any such statements made after December 30, 2005 the enactment date of the Detainee Treatment Act of 2005 (which outlawed cruel, inhuman and degrading treatment of individuals in the custody or under the physical control of the U.S. government), 10 U.S.C. § 948r(c) (2006) but permits such statements if made prior to the DTA's enactment, so long as the commission military judge finds that: "(1) the totality of the circumstances renders the statement reliable and possessing sufficient probative value" and "(2) the interests of justice would best be served by admission of the statement into evidence." Id. Notably, the vast majority of prisoner interrogation at Guantánamo took place prior to enactment of the DTA.
351. Moreover, although the MCA purports to prohibit all statements obtained through torture whether made before or after enactment of the DTA, id. § 948r(b), another provision of the MCA permits the introduction of evidence by the government without disclosure of classified sources or methods of interrogation, so long as the military judge finds that the evidence is "reliable" and otherwise admissible. Id. § 949d(f)(2). The military judge may require that an unclassified summary of the sources and methods be disclosed to the defense and the public, but is not required to do so. Id. Because hearsay evidence is generally admissible, id. § 949a(b)(2)(E), the MCA may permit intelligence officers to testify to statements made by the defendant or others without the defense having a meaningful opportunity to inquire into or challenge the methods of interrogation, thus raising the specter of a laundering of evidence obtained through torture. My thanks to Tom Fleener for this insight.
352. See Transcript of Press Conference, Guantánamo Bay Naval Base, Cuba (Jan. 10, 2006) (copy on file with author).
353. Michael Rowland, Guantanamo Detainee Omar Khadr Faces Military Trial, AUSTRALIAN BROADCASTING CORP. TRANSCRIPTS, Jan. 12, 2006;
354. Michelle Shephard, T.O. Teen "Indeed a Terrorist," U.S. Insists, TORONTO STAR, Jan. 11, 2006, at A1; Prosecutor Says Omar Khadr Not a Young Innocent, CTV, Jan. 10, 2006, available at http://www.ctv.ca/servlet/ArticleNews/story/CTVNews/20060110/omar_khadr_061001?s_name=&no_ads=.
355. See Defense Motion for Order Prohibiting Prosecution From Making Inappropriate Extrajudicial Statements and Requiring Prosecution to Take Steps to Remediate Past Inappropriate Statements, United States v. Khadr, No. 05008 (Jan. 12, 2006) (copy on file with author). Our argument was based on Rules 3.8 and 3.6 of the District of Columbia Rules of Professional Conduct, and analogous rules for North Carolina and the Air Force, all of which governed the conduct of the Chief Prosecutor because of his bar memberships. Id. Rule 3.8, entitled "Special Responsibilities of a Prosecutor," includes the following: "Except for statements which are necessary to inform the public of the nature and extent of the prosecutor's action and which serve a legitimate law enforcement purpose, [the prosecutor in a criminal case shall not] make extrajudicial comments which serve to heighten condemnation of the accused." D.C. RULES OF PROF'L CONDUCT R. 3.8(f) (2007). Rule 3.6 concerns extrajudicial statements that may create a threat to the impartiality of the judge or jury. Id. at R. 3.6.
356. See Prosecution Response to Defense Motion To Order [sic] Prohibiting Prosecution From Making Inappropriate Extrajudicial Statements and Requiring Prosecution to Take Steps to Remediate Past Inappropriate Statements, United States v. Khadr, No. 05008 (Jan. 12, 2006) (copy on file with author).
357. Record of Trial, United States v. Omar Ahmed Khadr, No. 05008, Vol. VII, 1st Volume of Transcript, Jan. 11 & 12, 2006 Sess. (Redacted Version) 195 [hereinafter Khadr Record of Trial], available at http://www.defenselink.mil/news/Feb2006/d20060222KhadrV7.pdf.
358. Id. at 198, 201; Errata Sheet by the Defense, U.S. v. Khadr, Session Transcript of 11 & 12 January 2006 (copy on file with author).
359. Khadr Record of Trial, supra note 280, at 201.
360. Josh White & Julie Tate, Pentagon Releases Detainees' Names; About 315 From Guantanamo Identified, WASH. POST, Mar. 4, 2006, at A7 (reporting on the Pentagon's release of names and personal information of 315 current and former detainees at Guantánamo following successful litigation by the Associated Press under the Freedom of Information Act); see also Associated Press v. U.S. Dep't of Def., 410 F. Supp. 2d 147 (S.D.N.Y. 2006) (denying government's motion for summary judgment and ordering the Pentagon to release relevant identifying documents on detainees held at Guantánamo).
361. I am grateful to Martha Minow for suggesting this frame.
362. James C. Scott, SEEING LIKE A STATE: HOW CERTAIN SCHEMES TO IMPROVE THE HUMAN CONDITION HAVE FAILED 2 (1998) (describing state attempts to order society by making its subjects legible and, by implication, making others illegible).
363. Martha Minow, Interpreting Rights: An Essay for Robert Cover, 96 YALE L.J. 1860, 1880 (1987).
364. Martha Minow, Interpreting Rights: An Essay for Robert Cover, 96 YALE L.J. 1860, 1875 (1987).
365. Martha Minow, Interpreting Rights: An Essay for Robert Cover, 96 YALE L.J. 1860, 1874 (1987). ("By invoking rights, an individual or group claims the attention of the larger community and its authorities. At the same time, this claim acknowledges the claimant's membership in the larger group, her participation in its traditions, and her observation of its forms.").
366. Martha Minow, Interpreting Rights: An Essay for Robert Cover, 96 YALE L.J. 1860, 1879 (1987). ("By invoking rights, an individual or group claims the attention of the larger community and its authorities. At the same time, this claim acknowledges the claimant's membership in the larger group, her participation in its traditions, and her observation of its forms.").
367. Id. at 1879-80 (footnotes omitted).
368. Robert Cover expressed this idea as an interdependence of constitutional understandings: Neither religious churches, however small and dedicated, nor utopian communities, however isolated, nor cadres of judges, however independent, can ever manage a total break from other groups with other understandings of law. Thus it is that the Shaker understanding of 'contract' is hardly independent of understandings of contract that were prevalent in the nineteenth century. The Amish concept of church-state relations is not entirely independent of secular, libertarian concepts of such relations. The interdependence of legal meanings makes it possible to say that the Amish, the Shakers, and the judge are all engaged in the task of constitutional understanding. But their distinct starting points, identifications, and stories make us realize that we cannot pretend to a unitary law.
369. Cover, Nomos and Narrative, supra note 35, at 33.
370. Minow, supra note 286, at 1873.
371. Linda Bosniak, THE CITIZEN AND THE ALIEN: DILEMMAS OF CONTEMPORARY MEMBERSHIP (2006).
372. ARENDT, supra note 16, at 298.
373. ARENDT, supra note 16, at 298. 11-78.
374. Hamdan stands as an important exception, as there the Supreme Court determined that the prisoners were protected by Common Article 3 of the Geneva Conventions. Hamdan v. Rumsfeld, 548 U.S. 557, 630-31 (plurality opinion) ("Common Article 3... is applicable here and... requires that Hamdan be tried by a regularly constituted court...") (citations and internal quotation marks omitted).
375. See, e.g., Brief of Legal Historians as Amici Curae in Support of Petitioners, Boumediene v. Bush, 128 S. Ct. 2229 (2007) (No. 06-1195), 2007 WL 2441583;
376. William F. Duker, A CONSTITUTIONAL HISTORY OF HABEAS CORPUS (1980);
377. Eric M. Freedman, HABEAS CORPUS: RETHINKING THE GREAT WRIT OF LIBERTY (2001);
378. Rollin C. Hurd, A TREATISE ON THE RIGHT OF PERSONAL LIBERTY AND ON THE WRIT OF HABEAS CORPUS 143 (1858);
379. Maxwell Cohen, Habeas Corpus Cum Causa-The Emergence of the Modern Writ-II, 18 CAN. B. REV. 172 (1940);
380. Richard H. Fallon, Jr. & Daniel J. Meltzer, Habeas Corpus Jurisdiction, Substantive Rights, and the War on Terror, 120 HARV. L. REV. 2029 (2007);
381. Eric M. Freedman, Milestones in Habeas Corpus, 51 ALA. L. REV. 531 (2000);
382. Jared Goldstein, Habeas Without Rights, 2007 WIS. L. REV. 1165 (2007);
383. Jonathan L. Hafetz, The Untold Story of Noncriminal Habeas Corpus and the 1996 Immigration Acts, 107 YALE L.J. 2509 (1998).
384. AGAMBEN, supra note 184.
385. Frédéric Mégret, From 'Savages' to 'Unlawful Combatants': A Postcolonial Look at International Law's Other', in INTERNATIONAL LAW AND ITS OTHERS (Anne Orford ed., 2006).
386. See generally Austin Sarat & Nasser Hussain, supra note 188.
387. See Dred Scott v. Sandford, 60 U.S. 393 (1856).
388. See supra Part I.B.
389. Arguably, however, the worst violence stopped for other reasons. Prisoner abuse was an interrogation tactic (or as the Bush Administration would call it, an "enhanced" interrogation tactic). It follows that after dozens of interrogations over a period of years, the utility, if any, of such a tactic would diminish.
390. Scott L. Cummings, Critical Legal Consciousness in Action, 120 HARV. L. REV. (FORUM ISSUE) 39 (2007), available at http://www.harvardlawreview.org/forum/issues/120/feb07/cummings.pdf (describing "constrained legalism" as "an approach to legal activism informed by a critical appreciation of law's limits that seeks to exploit law's opportunities to advance transformative goals").
391. For a thick description and analysis of such multidimensional advocacy, see Sameer M. Ashar, Public Interest Lawyers and Resistance Movements, 95 CAL. L. REV. 1879 (2007);
392. Sameer M. Ashar, Law Clinics and Collective Mobilization, 14 CLINICAL L. REV. 355 (2008) (advocating incorporation of collective mobilization strategies into public interest lawyering);
393. Ann Southworth, Lawyers and the "Myth of Rights" in Civil Rights and Poverty Practice, 8 B.U. PUB. INT. L.J. 469, 506-09 (1999) (discussing the importance of multidimensional strategies where sociopolitical advocacy is a primary objective).
394. In a particularly compelling example of such multidimensional advocacy, lawyers from the Federal Public Defenders office in Portland, Oregon, representing a Sudanese man named Adel Hamad, created an online video describing Hamad's case, as well as the lawyers' investigation in Afghanistan and elsewhere. The video describes Hamad's claim of innocence and then presents video testimony of former colleagues in Afghanistan corroborating his account. The video, posted on YouTube, has been viewed more than 100,000 times. See YouTube Video: Guantanamo Unclassified (William Teesdale 2007), http://youtube.com/watch?v=D5E3w7ME6Fs (last visited Sept. 5, 2009). The lawyers also created an accompanying website to facilitate broader advocacy on Hamad's behalf. See Project Hamad, http://projecthamad.org (last visited Sept. 5, 2009). First taken to Guantánamo in 2003, Hamad was released and returned to Sudan in December 2007. See Project Hamad Blog, http:// www.projecthamad.org/blog/2007/12/ (Dec. 13, 2007, 10:39 EST). Shortly before his release, a military lawyer involved in the review of prisoners' cases at Guantánamo termed Hamad's detention "unconscionable." See Leonard Doyle, Guantanamo Military Lawyer Breaks Ranks to Condemn "Unconscionable Detention', THE INDEPENDENT, Oct. 27, 2007, at 34, available at http://www.independent.co.uk/ news/world/americas/guantanamo-military-lawyer-breaks-ranks-to-condemn-unconscionable-detention-398033.html.
395. MARGULIES, supra note 24, at 198 (discussing role of evidence of torture of Margulies' client Mamdouh Habib in effecting his release: "When asked to explain the sudden change of heart, American officials refused to comment on the record. But they told the Australians they had decided to release him 'because the C.I.A. did not want the evidence about Mr. Habib being taken to Egypt, and his allegations of torture, raised in court.'"); see also In re Guantanamo Detainee Cases, 355 F. Supp. 2d 443, 470 (D.D.C. 2005) (highlighting exculpatory evidence regarding Murat Kurnaz); Craig Whitlock, U.S. Frees Longtime Detainee: Court Had Ruled In Favor of Turk, WASH. POST, Aug. 25, 2006, at A9 (discussing release of Kurnaz and criticism by U.S. District Court Judge Joyce Hens Green of the United States for ignoring exculpatory evidence).
396. See Boumediene v. Bush, 579 F. Supp. 2d 191, 199 (D.D.C. 2008) (directing Respondents "to take all necessary and appropriate diplomatic steps to facilitate the release of Petitioners Lakhdar Boumediene, Mohamed Nechla, Hadj Boudella, Mustafa Ait Idir, and Saber Lahmar forthwith"); see also El Gharani v. Bush, 593 F. Supp. 2d 144 (D.D.C. 2009) (ordering release of Mohammed el Gharani); Basardh v. Bush, No. 05 Civ. 889, 2009 WL 856345 (D.D.C. Mar. 31, 2009) (ordering release of Yasin Muhammed Basardh).
397. See Luban, supra note 139 (discussing how the conditions at Guantánamo disrupted the lawyers' relationships with their clients).
398. Al Dossari, supra note 25.
399. Sgt. Jim Greenhill, Outmoded Images of Detention Center, Mission Frustrate Guantanamo Troopers, ARMED FORCES PRESS SERVICE, Dec. 1, 2006, available at http://www.defenselink.mil/news/NewsArticle.aspx?ID=2272.
400. William Glaberson, Many Detainees at Guantánamo Rebuff Lawyers, N.Y. TIMES, May 5, 2007, at A1.
401. For an insightful account of prisoners' attempts to boycott military commission proceedings and to dismiss their counsel, see Matthew Bloom, "I Did Not Come Here to Defend Myself": Responding to War on Terror Detainees' Attempts to Dismiss Counsel and Boycott the Trial, 117 YALE L.J. 70 (2007).
402. In June 2006, two Saudi prisoners and one Yemeni committed suicide. See James Risen & Tim Golden, 3 Prisoners Commit Suicide at Guatanamo, N.Y. TIMES, June 11, 2006, at A1. There have been forty-one suicide attempts at Guantánamo. Id. From August 18-26, 2003, twenty-three prisoners attempted suicides, which the government characterized as "self-injurious behavior." 23 Detainees Attempted Suicide in Protest at Base, Military Says, N.Y. TIMES, Jan. 25, 2005, at A14, available at http://www.nytimes.com/2005/01/25/national/25gitmo.html?scp=43&sq=guantanamo+suicides&st=nyt. This information was not disclosed until January 2005. Id. For an account of Guantánamo by a prisoner who attempted suicide multiple times before ultimately being released, see Al Dossari, supra note 25.
403. George J. Annas, Hunger Strikes at Guantanamo-Medical Ethics and Human Rights in a "Legal Black Hole", 355 N. ENG. J. MED. 1377 (2007).
404. George J. Annas, Hunger Strikes at Guantanamo-Medical Ethics and Human Rights in a "Legal Black Hole", 355 N. ENG. J. MED. 1378 (2007).
405. George J. Annas, Hunger Strikes at Guantanamo-Medical Ethics and Human Rights in a "Legal Black Hole", 355 N. ENG. J. MED. 1377 (2007).
406. Nicholas D. Kristof, Op-Ed., Sami's Shame, and Ours, N.Y. TIMES, Oct. 17, 2006, at A21;
407. Nicholas D. Kristof, Op-Ed., When We Torture, N.Y. TIMES, Feb. 14, 2008, at A35;
408. Joel Campagna, The Enemy?, CMTE. TO PROTECT JOURNALISTS, Oct. 3, 2006, available at http://www.cpj.org/Briefings/2006/DA_fall_06/prisoner/prisoner.html.
409. See Memorandum from Clive Stafford-Smith on Sami al-Haj Hunger Strike Diary 1 (Mar. 4, 2007) [hereinafter "Stafford-Smith Memo"] (copy on file with author); Prisoner 345, http://www.prisoner345.net (last visited Sept. 5, 2009).
410. The following description is a composite drawn from a diary maintained by al-Haj, see Stafford-Smith Memo, supra note 322, and a description of hunger strike protocols provided by the Commander of the U.S. Navy Hospital at Guantánamo. See Declaration of John S. Edmondson, M.D., Al Joudi v. Bush, 406 F. Supp. 2d 13 (D.D.C. 2005) (No. 05-0301), available at http://humanrights.ucdavis.edu/projects/the-guantanamo-testimonials-project/testimonies/testimony-of-military-physicians/edmondson_ affidavit.pdf.
411. See Emergency Restraint Chair, http://www.restraintchair.com (last visited Sept. 5, 2009).
412. See Annas, supra note 317, at 1377.
413. See Annas, supra note 317, at 1379.
414. Kristof, When We Torture, supra note 321 (quoting lawyer Zachary Katznelson).
415. Stafford-Smith, America's Legal Black Hole, supra note 142.
416. Annas, supra note 317, at 1378-79; see also Hernan Reyes, Int'l Cmte. of the Red Cross, Medical and Ethical Aspects of Hunger Strikes in Custody and the Issue of Torture (Jan. 1998), available at http://www.icrc.org/Web/eng/siteeng0.nsf/iwpList302/F18AA3CE47E5A98BC1256B66005D6E29 (discussing the reasons prisoners go on hunger strike).
417. Brandt Goldstein, STORMING THE COURT: HOW A BAND OF YALE LAW STUDENTS SUED THE PRESIDENT-AND WON 199-222 (2005). While many of the lawyers for post-September 11 Guantánamo prisoners have been supportive of their clients' hunger strikes, the Haitians' lawyers were more interventionist, trying to persuade their clients to stop their hunger strikes. Id. at 204.
418. David Beresford, TEN DEAD MEN: THE STORY OF THE 1981 IRISH HUNGER STRIKE (1987) (discussing the hunger strike undertaken by Bobby Sands and others in Northern Ireland);
419. Mark Dow, AMERICAN GULAG: INSIDE U.S. IMMIGRATION PRISONS (2004) (discussing use and efficacy of hunger strikes as a means of protest within American immigration prisons);
420. SHARMAN APT RUSSELL, HUNGER: AN UNNATURAL HISTORY (2005) (tracing the role of hunger as a force for social change, and analyzing its use by religious and political figures).
421. The government's forced-feeding regime has been criticized as contrary to medical ethics. See Annas, supra note 317; Sondra S. Crosby, et al., Hunger Strikes, Force-Feeding, and Physicians' Responsibilities, 298 JAMA 563 (2007);
422. Press Release, Physicians for Human Rights, Forced Feeding of Gitmo Detainees Violates International Medical Codes of Ethics (Sept. 16, 2005) available at http://physiciansforhumanrights.org/library/news-2005-09-16.html.
423. For a discussion of other medical ethics issues at Guantánamo, including the involvement of psychologists in the development of interrogation methods, see Jonathan H. Marks, Doctors as Pawns? Law and Medical Ethics at Guantánamo Bay, 37 SETON HALL L. REV. 711 (2007).
424. For an analysis of U.S. prison practices regarding hunger strikes, see Tracey M. Ohm, What They Can Do About It: Prison Administrators' Authority to Force-Feed Hunger-Striking Inmates, 23 WASH. U. J.L. & POL'Y 151 (2007).
425. Stafford-Smith Memo, supra note 322, at 4.
426. See Press Release, Al Jazeera, Sami al Haj Freed from Guantanamo (May 2, 2008), available at https://www.zawya.com/printstory.cfm?storyid=ZAWYA20080502112225&l=112200080502.
427. Robert M. Cover, Violence and the Word, 95 YALE L.J. 1601, 1605 (1986).
428. This fundamental role of the body in acts of resistance was similarly articulated by Martin Luther King, Jr.: "We had no alternative except to prepare for direct action, whereby we would present our very bodies as a means of laying our case before the conscience of the local and the national community." Martin Luther King, Jr., Letter From A Birmingham Jail (Apr. 16, 1963), reprinted in WHY WE CAN'T WAIT 80 (1964), available at http://www.africa.upenn.edu/Articles_Gen/Letter_Birmingham.html.
429. FANON, supra note 58, at 1-62.
430. Homi Bhaba, Forward to FANON, supra note 58, at xxv.
431. Homi Bhaba, Forward to FANON, supra note 58, at xxv.
432. Homi Bhaba, Forward to FANON, supra note 58, at ix.
433. FANON, supra note 58, at 16.
434. Of course, the brutality of Guantánamo has been punctuated by compassion as well. As former prisoner Jumah al Dossari described, "On occasion, I was helped by compassionate guards. After the [brutal] beating [I received] in Camp X-Ray, a young female guard appeared at my cage, looking to make sure that no other guards were watching. 'I'm sorry for what happened to you,' she whispered to me. 'You're a human being just like us.'"Al Dossari, supra note 25.
435. I recognize that at Guantánamo and in other instances of lawyering against extreme state violence, individual lawyers have assumed significant professional risk and have demonstrated great courage in the face of it. This is especially true of the cadre of lawyers who first took the prisoners' case up to the Supreme Court in Rasul-the Center for Constitutional Rights, Joe Margulies, and Tom Wilner and Neil Kaslowe at Shearman and Sterling-as they began this work at a time when it was deeply unpopular, and was also believed to be unwinnable. It seems fair to say, however, that the risk that lawyers incur is different in kind from that of the prisoners.
436. Kristof Sami, Shame, and Ours, supra note 321; Kristof, When We Torture, supra note 321;
437. Nicholas D. Kristof, Op-Ed., A Prison of Shame, and It's Ours, N.Y. TIMES, May 4, 2008, at WK13.
438. Stafford-Smith Memo, supra note 322, at 4.
439. Bhaba, Forward to FANON, supra note 58, at xxxi.
440. See generally DE CERTEAU, supra note 259.