If you accidentally crush an iguana on the base, you are fined ten thousand dollars, while if you beat up a prisoner, your act will be described as 'non-detrimental benign contact' and there will be no consequences." "Two years ago," he relates, "the lawyers pleaded with the Supreme Court to align Guantanamo prisoners' rights with those of the animals. Our slogan? 'Equality with the iguanas!'"
Tuesday 14 November 2006
When the little Air Sunshine airplane begins its landing on Guantanamo military base, after describing a large curve around Cuba's easternmost point to avoid Fidel Castro's air space, lawyer Clive Stafford Smith always feels the same mixture of emotion and excitement. In a few hours, he will meet several of the most cloistered prisoners on the planet. In several hours – but the time will be clocked against him – he will meet their eyes and be able to speak with them, hear them, observe the degradation of their physical and mental state, give them news of their families in Algeria, Libya, Jordan, Egypt, Saudi Arabia, Kuwait, Pakistan.
He'll be able to listen to the recital of the daily sufferings inflicted at this island-tip prison the United States president has wanted to transform into a no-law zone. He'll try to reconstruct the itinerary of these men, who for the most part have no connection with al-Qaeda, who were captured far from their homes and sold to the American Army without realizing what was happening to them. And he will do his best to give them a little hope. Their lawyers – when they have any – have been the prisoners' only link to the outside world for close to five years.
Soldiers surround the plane as soon as it stops on the runway, and the passengers' bags are exhaustively searched: Guantanamo is a military base. "The slightest joke will be regarded as a security threat," smiles Clive Stafford Smith, habituated to the extreme tension in this place and to the hostility with which the lawyers are greeted. An officer presents himself to him – his "escort" for the length of his stay – and drops him off at a motel situated on the east side of the base, far from the penal camp, located on the other side of the bay. The level of comfort there is rough ($20 a night), but that does not prevent the motel from proudly displaying the camp's motto, which is also posted at the entry to the prison and chanted by the soldiers: "Honor bound to defend freedom."
Clive Stafford Smith sees a terrible irony in it. "What freedom are they talking about? The iguanas' freedom is better protected than humans' here! If you accidentally crush an iguana on the base, you are fined ten thousand dollars, while if you beat up a prisoner, your act will be described as 'non-detrimental benign contact' and there will be no consequences." "Two years ago," he relates, "the lawyers pleaded with the Supreme Court to align Guantanamo prisoners' rights with those of the animals. Our slogan? 'Equality with the iguanas!'"
The lawyer, like the other rare motel residents, will go to bed early to take the first ferry to the prison at 7 a.m. They will spend twenty minutes crossing a turquoise sea before penetrating what Tom Wilner, another American lawyer, does not hesitate to describe as an "American Gulag." There are now 400 lawyers who take care of the Guantanamo prisoners. Four hundred jurists with different experience and profiles, voluntarily engaged in the defense of one or several detainees. Some, like Clive Stafford Smith (British, but also a United States citizen) are famous human-rights militants and have won renown notably in their defense of death penalty condemnees. Others, employed by several of the most powerful American law firms, manage their Guantanamo case loads in the context of their "pro bono" activities, a tradition of commitment to community service.
Some are Republicans, some Democrats; some are former military, others conscientious objectors; but all, in the circle of what they call the "Guantanamo bar," are now in solidarity with one another, connected by a visceral attachment to the law and to public freedoms as well as by a common revulsion for the way the Bush administration has decided to rip the law and those freedoms apart since the day after September 11, 2001.
The group was not constituted in a day. For, in the fall of 2001, the moment when Clive Stafford Smith, shocked by Bush's first military decree on indefinite detention, began to telephone his colleagues in the hope of a common initiative, reactions were reserved, even frigid. America was under the immediate influence of September 11; the idea of a secret prison for terrorist suspects didn't shock anyone. And the fear of being accused of being insufficiently patriotic paralyzed a number of lawyers.
No matter. The indefatigable Joe Margulies, who had long striven for the detainees in the corridors of Texas's Death Row, immediately counted himself in for the endeavor, as did the Center for Constitutional Rights, based in New York. The Guantanamo prisoners deserved a defense. The legal marathon to obtain their rights began. There were setbacks, appeals, counterattacks – up until June 28, 2004, when the Supreme Court recognized the Guantanamo prisoners' right to contest their detention in American courts. Consequently, they needed lawyers.
But the Bush administration continued to refuse to communicate the identities of the detainees for a long time (It did so in April 2006 only under pressure from a Federal judge sued by the Associated Press.). And it required the obstinacy of the initial trio, appeals for help from several families in the Gulf, and Clive Stafford Smith's trips to Yemen, Jordan, and Bahrain – where the prisoners' relatives came from all over to meet him – for a first list of prisoners to see the light of day and for the little group to be officially charged with the defense of sixty men. Then, of three hundred. The Center for Constitutional Rights then took on responsibility for parceling the clients out between the law firms, now numerous, to volunteer. All wanted to go to Guantanamo.
But it would take many months yet as the Department of Justice multiplied its administrative roadblocks and delayed giving the lawyers, after raking through their pasts, the security services' green light. Once the safe-conduct was obtained, they still had to organize the dates of their stays with Washington, obtain the right to meet with the specific clients, make provision for bringing along a translator (difficult – and expensive! – to recruit American citizens who speak Arabic, Urdu, Dari, Pashtun, and Uighur, and who agree to undergo the scrutinizing police examination) and finally go to Miami, the point of departure for Guantanamo flights.
"A descent into hell," is the description given by Tom Wilner, whose firm, Shearman & Sterling, has defended Kuwaitis since 2002.
"It took me two and a half years to get access to my clients! And my twelve visits have taken me into a universe where the principles on which America is based are flouted. I could never have imagined that my country would practice torture, humiliate and annihilate other men. Guantanamo is an unbelievable sorrow!" David Remes, from the firm Covington & Barling, in charge of Yemenite detainees, feels the same disgust and disillusionment after twelve trips. "People beat them, crush them, debase them. As though they were subhuman. Kafka could not imagine anything worse." Wells Dixon, of Kramer Levin Naftalis & Frankel, says he is stunned by the war atmosphere: "Barbed wire, machine guns, hostility, suspicion. The camp is under infernal tension."
So a lawyer's day at Guantanamo begins with the arrival of the ferry, where his escort is waiting. After a stop at Starbucks and passing by way of a golf course studded with cacti, the lawyer is dropped in front of Camp Echo, an establishment where the hermetically closed cells are divided into two parts: one side – equipped with a bed rack, a table and a toilet – where the prisoner lives; the other, where he is brought for interrogation and for lawyer visits.
Initially authorized from 8 a.m. to 5 p.m. seven days a week, these visits are now restricted: from 9 to 11:30 a.m., then from 1:30 to 4:30 p.m., five days out of seven. "We've gone from sixty-five possible hours of work a week to thirty-five!" deplores Clive Stafford Smith. "We don't go to Guantanamo for a vacation, but to be effective! Now, everything is done to complicate, slow down, and hobble the lawyers' work." Wells Dixon had to wait four days for authorization to show his client a simple photo. As he had to wait a week for the camp administration's response – negative – to his request for a doctor's visit.
The detainee is not always in the best frame of mind to receive his counsel. He would not have been forewarned of the visit, but would have been brutally awakened in the middle of the night several days earlier to be transferred – handcuffed and hooded – to Camp Echo, where he is subjected to complete isolation. So it starts with punishment. And that continues, for after the lawyer's departure, the prisoner remains cloistered in his cell for 10 days, subjected to 30, even 40 interrogations afterwards. And then, Clive Stafford Smith explains, "a formidable undermining operation is effected. First, the Army interrogators have often tried to pass themselves off to the detainees as their lawyers, leading to legitimate suspicion when we arrive. Then, they assert that their lawyers are Jews. Or even … homosexuals! It would make me laugh if I didn't know the seriousness of that stigmatization in certain Islamic countries, and I rush to show my wedding ring as a refutation."
Consequently, gaining the prisoners' trust may take some time. Some lawyers who have traveled to the East are assisted by letters given by the family. Tom Wilner even had recourse to DVDs in which his clients' parents encourage them to trust him. "Some of them cried when they viewed the pictures. One had become a father and saw his son for the first time. Another observed the absence of his father and we had to tell him that he was dead."
Since they can't discuss the accusations preferred against their clients, the lawyers listen to recitals of their biographies, the circumstances of their capture, and the treatment to which the American Army has subjected them. All of them leave deeply distressed. "Frankly," Tom Wilner admits, "before I met them, I expected the worst. And what have I found? Good boys trapped by bounty hunters in Pakistan and treated like shit ever since! Beatings, insults to the Koran and their religion, sexual provocations from women interrogators …" "The greatest shock?" Wells Dixon, in charge of seven Chinese Uighurs, asks himself. "To discover that my clients are perfectly innocent! That the American administration knew that from the first days and that that did not, in the end, have the slightest importance. Three detainees committed suicide in the spring of 2006 at Guantanamo. What surprises me is that there haven't been more! These men are sick, traumatized, totally desperate!"
All the lawyers I questioned share this concern. "The three suicides threw the administration into a panic, since it didn't want to be held responsible for them in any case," observes Clive Stafford Smith, one of whose clients was subjected to blackmail and pressure to denounce his defender as the big manipulator of the hunger strikes and instigator of the suicides. During a recent visit, the lawyer, introduced into an empty cell by an officer in black sun glasses, even found himself threatened with being shut up inside. "He thought he was in Hollywood," the lawyer laughs, "but the objective was nonetheless to intimidate me. My wife has instructions to call my own lawyer if I don't send any news for two days. Guantanamo is one of the places on the planet where I feel least secure."
Every night, before they take the ferry, the lawyers must hand their notes, taken during their visits, over to the military. The pages are numbered, placed in sealed envelopes, and sent by mail at the end of their stay to Washington, where Justice Department lawyers will decide on their classification as defense secrets or their possible declassification: the whole [process] can take weeks.
"In the beginning, all my notes on torture were censored, like our clients' mail, and like a letter I had written on the subject to Tony Blair," relates Clive Stafford Smith. "It has also happened that the administration 'loses' precious documents in the mail. It's enough to make you crazy!" Frightening hindrances to unpaid lawyers who know that the best way to help their clients is to spread information about what really happens at Guantanamo, but who, at the same time, risk heavy sentences in prison if they override the censorship.
Given the blockage of their recourse to American courts, the lawyers exert themselves on the diplomatic level. They contact embassies and governments of their clients' countries of origin, or desperately seek a receiving country in cases where a return to native soil (Libya, China, Uzbekistan …) would mean persecution, even execution. Some are suing in other jurisdictions, like the European Human Rights Court. Many write articles and participate in conferences.
"We've succeeded in getting 330 prisoners released from Guantanamo, essentially through political pressure," deems Clive Stafford Smith. "There remain 460, of whom 330 have not yet seen a lawyer. Which is unbearable. Without even mentioning the 14,000 men shut up in other American prisons in Iraq or in Afghanistan that no one ever hears about." Discouraging? "Come, on! What do we live for if not to fight this kind of battle?"