Supreme… WTF?

I wouldn’t have expected the first GTMO related case taken up by the U.S. Supreme Court in over a decade to involve our old friend Abu Zubaydah (a/k/a Zayn al-Abidin Muhammad Husain) and his quest to break through the state secrets fortress wall in order to get accountability for his egregious torture at the hands of the CIA at a black site in Poland… against the CIA’s contractor psychologists and torture consultants Drs. Mitchell and Jessen, but that is the case argued last week. Andy has more in a comprehensive take on the subject. [To be fair, the Ninth Circuit concluded that state secrets did not protect the government from making disclosure about Abu Zubaydah’s torture, because, in effect, it was no longer a secret and furthermore, amounted to embarrassment of American government agencies and officials, rather than a legitimate national security concern; in other words, the Supreme Court likely took up the case to reverse that, and bury Abu Zubaydah’s torture as deep as it can.]

Some years ago, I interviewed Zubaydah’s attorney, Joseph Margulies, as part of my series of interviews with GTMO detainee attorneys and other relevant players. Although I did not publish the interview, Joe was very generous with his time, and I learned a great deal of information that would become a large part of the the background of my knowledge of things GTMO and the war on terror. This has proven extremely useful over the years as I interviewed others.

Some time after speaking to Joe, I interviewed Candace Gorman, and Andy Worthington (both of whom I count as dear friends). My war-on-terror interview series eventually came to include over 75 published interviews (accessible with links at the end of my most recent interview, with Sarah Mirk). While providing what limited assistance to Candace I could as she represented two GTMO detainee clients (one of whom was released during the Obama administration and eventually made it home to Libya, while the other is still held as a forever prisoner at GTMO), I came to understand much of the ludicrousness of most Guantanamo litigation quite directly. Specifically, the government is always assumed to be correct in its accusations, and that assumption is simply not rebuttable in the view of our courts. Any relief the prisoners ever obtain will be as a result of executive fiat; only in the rarest circumstance, if ever, will courts intervene on behalf of the prisoners of the empire.

GTMO being what it is, everything is strangely related. And so, Candace’s client, Algerian national Abdul Razak (a/k/a Saeed Bakouche) has been held for nearly 20 years as a forever prisoner (never charged or even credibly accused of terrorism) for no reason other than he had the misfortune to stay at the same guesthouse as Abu Zubaydah in Pakistan for a period of weeks; he was also captured in the same raid as Zubaydah. Our courts have decided that this “guilty by guesthouse” is a sufficient basis for possible life imprisonment for Abdul Razak (though others caught up in that raid were released long ago). Meanwhile, the U.S. government has long acknowledged that whatever Abu Zubaydah is or was, aside from being the reason the torture memos were actually written, he is not and was not part of al Qaeda. No problem, of course: just as everyone at GTMO can be called an enemy combatant or a detainee or some designation that isn’t prisoner of war (subject to protections of law and the Geneva Conventions), Abu Zubaydah and “the Abu Zubaydah force” was deemed an “associated force” (i.e. “al Qaeda adjacent”), even though, it too was not accused of acts of terrorism against American or allied forces.

And this, in turn, is all just background at the end of the day for the nearly 20-year old abomination called the military detention facility at Guantanamo Bay (itself an abomination of American imperialism now over a century old). An outpost at the southeastern end of a communist island in the Caribean was thought to be “the least worst place,” or more specifically, the Cheney-Rumsfeld brain trust believed that GTMO, as technically on Cuban soil, was beyond the reach of American courts, and hence, a perfect place to both orchestrate and cover up torture. The Supreme Court’s prior adventures in the subject, however, notably the cases of Rasul, Hamdan and Boumediene, ended up standing for the proposition that the prisoners at GTMO were subject to the U.S. Constitutional protections of habeas corpus, though in practice, decisions of the lower courts (that the Supreme Court refused to revisit) effectively gutted habeas corpus.

So, these two decades since 9-11, we come back to the question of why I find the whole damned thing so fascinating and worth focusing a disproportionate share of this blog’s attention to exploring. And that, quite simply, is the troublesome realization that GTMO reveals what we have long known but prefer not to say out loud: American law is optional. We have always known that to be true; the moment Gerald Ford pardoned Richard Nixon, American elite immunity was thrust in all our faces. If you are powerful enough, you are… above the law. Decades later, of course, Ford’s two chiefs of staff (Dick Cheney and Donald Rumsfeld) would prove very instrumental in the George W. Bush Administration; they in turn made up the legal never never land of which GTMO and the war on terror are key pieces.

At the other end of American law, particularly for people of color specifically and the working class in general, “due process of law” has never meant too much when police can simply gun you down with complete impunity long before you face “the criminal justice system.” And once you reach it, unless you have the money to hire decent counsel, you will find it almost impossible to resist whatever plea bargain you are offered, lest you face an even more draconian sentence after your “fair trial.” The adage of the private practice attorney is that “justice costs money.” The more cynical among us might suggest simply that justice goes to the highest bidder. But the reality is that the system that can allow lawyers to make a decent living (those representing the indigent via either public defenders’ officers or their state’s allowance system for private attorneys to represent the indigent often don’t do particularly well financially) requires significant sums of money, and hence, is usually reserved for defense of accused criminals of the middle and upper middle classes. More than the collars are overwhelmingly white in this group. On the civil side, we find that most of the legal system is devoted to either personal injuries sufficiently substantial and against defendants either adequately insured (or at least adequately moneyed) to warrant years of lawyers’ contingency time, or for business disputes for enterprises of adequate size and worth to be able to support the hefty legal fees. Even divorce cases are overwhelmingly uncontested: those nasty internecine disputes that you see playing out in court tend to be reserved for at least the upper middle class to make it worth having those expensive fights in the first place.

With that understanding, and the fact that there is something like a 99% conviction rate in criminal cases brought in federal courts, I found it curious to say the least that the George Dubya Bush administration was so hell-bent on setting up its own alternative system of justice, first for unfortunate citizens like Jose Padilla (or residents like Saleh al-Marri), and then for hundreds of GTMO detainees, whether they be the tiny number actually charged with war crimes who got the benefit of kangaroo-court military commissions, or for the rest, who were intended simply to be beyond law altogether. But apparently, even the appearance of justice and the possibility that prisoners might defy their captors even with an exceedingly rare acquittal proved just too much for Team Dubya and the dreams of a fascist wonderland they were trying to create (of which GTMO and the war on terror were the flagship projects.) And as an attorney, I found all of this fascinating. I found it even more fascinating when the Supreme Court, the majority of whom were Republican appointees (albeit two of whom were apostates John Paul Stevens and David Souter), managed to extend habeas corpus to the prisoners at GTMO, and managed to overturn the earlier incarnation of the military commissions (until a feckless Congress reanimated them). And of course, most fascinating of all was when hundreds of attorneys, from private practice, public defenders’ offices and academia, took up the mantle of GTMO habeas representation. And, despite the obvious newsworthiness of the story, I found many of the attorneys quite accessible and willing to share stories with me, a blogger with a tiny following; the media writ large was rarely interested. And the ultimate lesson proved the same: just as the poor and working class represented by overworked and underpaid lawyers find they have few options other than to take what the system offers them (as if “guilt” or “innocence” even mattered), even top flight corporate counsel or law professors representing GTMO detainees found that their clients were at the mercy of executive whim (except for a very short time in the aftermath of the Boumediene case, before the federal D.C. Circuit appeals court intervened and a put a stop to any possibility of GTMO detainees winning habeas cases.)

All of which is a long-winded explanation for my fascination with the Supreme Court’s taking up this issue now, at a time when the Biden Administration (like the Obama Administration, and for that matter, Dubya’s Administration) was committed to closing GTMO “if it could.” We will doubtless pass 20 years of GTMO when the decision comes down. Will the Court actually follow the law, and, for example, conclude that holding prisoners of war from the Afghan conflict, at least those who aren’t charged with war crimes, is illegal, now that the Afghan war is finally over? Will the Court find that state secrets does not apply when something is no longer secret nor an actual matter of national security? Let’s just say that my knowledge of the subject tells me that this isn’t how you bet. This Supreme Court, one third of whom was appointed by Donald Trump, might just want to keep the GTMO/Muslim prisoner demonstration project alive and well, in case someone like Trump (or perhaps Trump himself) decides to rev it up again for use against whatever enemies of the state happen to need disappearing.

And this is where I was going all along: while GTMO has been deliberately set up to house only foreign nationals, the reality is, all of us are simply subjects of a government that can wave a wand it calls national security and throw us in a dungeon (or quite frankly, have us murdered) without any meaningful legal recourse at all. And that is the “legal principle” that I expect this Supreme Court to hold up. I’m willing to be pleasantly surprised, but on things GTMO and the war on terror… I rarely am.