Sidebar: Obama's Broken Guantanamo Promises
Within days of his first inauguration, Barack Obama signed a presidential order directing his administration to close the prison at Guantanamo Bay Naval Base (GTMO) within one year, following up with astonishing alacrity on his campaign promises, despite many competing policy priorities. While I did not expect an immediate parade of planes ferrying my clients and other GTMO prisoners to their home countries, all indicators were that GTMO, and the indefinite imprisonment without trial that it stood for, would soon end.
A week later, I was sweating in one of the squalid shack-like structures of Camp Echo, Guantanamo Bay, Cuba, where attorney-client meetings take place, visiting one of my clients, Sanad al-Kazimi, a husband and father of four from Aden, Yemen. He had been abducted by some arm of some government in the United Arab Emirates in January 2003 and subjected to brutal torture, including confinement in a dark cell the size of a grave, prolonged shackling, nudity with cold air blasting, beatings, and sexual abuse. Men tied his hands and legs together and hooked him up to a mechanical lift device that hoisted him in the air and dropped him into a pool of freezing water.
His imprisonment had no legal contours. He was not formally arrested, and he was not charged with a crime or provided an opportunity to be heard. He was not captured by soldiers on a battlefield and registered with the International Committee of the Red Cross, an independent organization that monitors treatment of war detainees. He was disappeared.
I knew none of this when I first met him in the summer of 2006, two years after he arrived at GTMO. I did know that just a month before I met my client, three prisoners, including another man from Yemen, died at GTMO on the same day. The military immediately deemed the deaths suicides, though a Marine sergeant would later come forward with information that cast doubt on this claim. In the ensuing years, four men did commit suicide, each a human being who gave up on life in indefinite imprisonment.
My client mentioned the "suicides" during that first meeting, but I did not fully appreciate how this news must have impacted him since, at the time, I was unaware of his history.
After my client's disappearance, he was relocated multiple times—trussed like an animal, diapered, blindfolded with blackout goggles, made deaf with earmuffs, wrapped in tape, and strapped to a stretcher. Each transfer was accompanied by the uncertainty and dread of not knowing what was to come. One of the stops was at a CIA-run site in Afghanistan dubbed the "Dark Prison" by detainees who emerged to describe the complete darkness they had been held in, 24 hours a day, seven days a week. While there, Mr. al-Kazimi tried to kill himself on three separate occasions by hitting his head against the wall of his cell. Each time, his U.S. captors intervened and injected him with drugs that put him out.
Following his time at the Dark Prison, Mr. al-Kazimi was transferred to the United States' Bagram Airfield Military Base in Afghanistan. This move was designed to transform what was unquestionably illegal detention by the CIA into military imprisonment that had a veneer of lawfulness. The U.S. military then colluded in torture by attempting to erase what the CIA had done.
A "clean team" was tasked with obtaining inculpatory statements in a manner designed to avoid admissibility objections in a court of law. This Department of Defense-invented entity, officially called the Criminal Investigation Task Force and composed of armed services interrogators, sought to create a cordial atmosphere by offering food and drink and projecting ease and comfort. These efforts were designed to permit investigators to later testify in court (as they did) that the statements obtained were voluntarily given and not coerced. These "fresh" statements were meant, like a miracle stain remover, to clean up the filth, dirt, and toxic taint of torture.
After almost two years of secret captivity, torture, movement from one prison to another, manipulation by a procession of shadowy interrogators, and ceaseless uncertainty, my client was suffering from severe post-traumatic stress disorder, but his emotional distress was ignored by military medical personnel.
After he was moved to GTMO in September 2004, Mr. al-Kazimi got word to another prisoner who was about to be released that he needed help. That message was conveyed to the detainee's lawyer, who then conveyed it to the Center for Constitutional Rights. That intrepid group filed a court case on behalf of over a hundred men, including Sanad al-Kazimi, challenging the legality of their imprisonment.
My client had many questions at our first meeting. He requested the most reasonable sort of information: who would decide his fate, how it would be decided, when it would be decided. He wanted some sense of what was to become of him.
From the very first time I met him, Mr. al-Kazimi sought a trial. Despite all the U.S. had done to him, he still believed the country could deliver justice. The expectation that America's rule of law would put an end to the frightening uncertainty of his imprisonment would, in time, be dashed.
The Loss of Liberty Goes Wide and Deep
In the summer of 2008, over five years after my client was seized and detained, the Supreme Court declared that prisoners could not be deprived of the right to challenge the legality of their detention in a U.S. court through use of the writ of habeas corpus. The power of courts to question, review, and check presidential power was restored by that decision, Boumediene v. Bush.
The Supreme Court's support for judicial review, and the election of Obama several months later, seemed to create momentum. As I flew into GTMO in January 2009 to meet with my client, I was under the spell of the U.S. having elected its first African-American commander in chief, BeyoncÃ©'s ballad to the new president, and Michelle Obama's perfect inauguration outfits. I was optimistic my client's suffering would soon end.
I had not seen him in almost four months. When I entered the dark shed from the glaring Caribbean sun, I was blinded. I knew he would be sitting in a chair behind a table with one foot chained to an eyehook on the floor, but initially I could make out only the color of his clothes.
Prison-issued med-student smocks and pants signal each prisoner's compliance rating by the guard staff. White is most compliant, tan is medium, and orange—my client's color—apparently informs the guards that a detainee is refusing to comply.
As I fumbled to adjust the scarf I wear to cover my head out of deference to my client's culture and religion, my eyes adjusted and I saw his aging face. Mr. al-Kazimi was unusually silent.
In U.S. prisons, the vast majority of inmates have definite release dates—they are doing time. Not at GTMO. Each day of imprisonment does not bring my client closer to release. Under the law, he isn't being punished. The purpose of his imprisonment is not retribution or rehabilitation or deterrence. A legal fiction contends that this is preventive detention. Personnel at GTMO never refer to my clients as prisoners; the men locked up there are always called "detainees."
At GTMO there are no visits or care packages from family and friends. There are no commissary accounts providing access to comfort items. There are none of the work opportunities that are common in U.S. prisons. At that time, there were no educational programs; a meager few exist now. And there are no phones on the prison blocks from which calls to the outside world can be made. For many years, the prisoners had no access to news from their home countries; information was painstakingly controlled as part of a concerted effort to instill helplessness and soften the men for interrogation. GTMO does so much more than "detain"—the loss of liberty goes wide and deep.
Sidebar: Obama's Broken Guantanamo Promises
The International Committee of the Red Cross eventually negotiated an agreement with the U.S. military to permit phone calls with family members. The opportunities were sporadic at first, and calls were monitored by U.S. officials, but for Mr. al-Kazimi, the chance to talk with family was precious. When my client broke his silence on that day in 2009, I learned he was grieving the loss of an opportunity for this treasured communication. Guard staff told him he had "refused" his family call, which was not true. Was this an oversight by a guard? A miscommunication? Purposeful harassment? Outright punishment?
Inquiries and complaints by lawyers are met with ever-so-polite references to "standard operating procedures" that are said to govern everything at GTMO. But SOPs are "elastic," as my client always tells me—policies change continually and irrationally, and exceptions abound. The operation of GTMO is cloaked in secrecy, which greatly contributed to my client's sense of insecurity, imbalance, and dislocation.
It was the secrecy that ultimately dismantled his faith in the rule of law.
After three years of litigation, I had finally obtained the "unclassified" version of the U.S. government's claimed basis for deeming Mr. al-Kazimi "detainable." Over 90 percent was redacted: page after page of blackness. The sliver of substance he could access was overwhelmed by the vast expanse of hidden content. What the government labeled a "disclosure"—implying the shedding of light—was just the opposite: These were Dark Pages. That I was permitted to read most of the contents but could not share what I learned further strained my ability to communicate with my client and added to his isolation. He asked me why everything was not in the open so he could defend himself.
Lacking answers, I needed to turn the conversation to litigation business: the painful process of asking a client to remember, in detail, events he has tried desperately to forget. Over the years, my client would sporadically tell me pieces of information about his imprisonment before he landed at GTMO. His recollections were fragmented and incoherent at times. The lawyer in me wanted clarity, chronology, and details, but recounting trauma can cause retraumatization—an actual experience of pain. This was especially risky for my client, who remained at the mercy of the same country that inflicted his suffering in the first place.
But during this January meeting, he began to recount details of the Dark Prison. His harrowing description of torture caused him to curl inward as he spoke. What I could see of his face revealed agony and tears. A student who accompanied me on this visit cried.
At the hands of the CIA, his head had been shaved and he was hooded and locked in a small cell. There was no light but the large flashlights brandished by the guards. The guards themselves were dressed in all black, including black ski masks that revealed only their eyes. They suspended him from the ceiling by his arms for hours at a time, causing his legs to swell painfully. As he hung naked, guards—both male and female—took photos of his dangling body. The hangings usually took place before interrogations, so, unable to walk, he was dragged along the floor to the interrogation rooms. There, his head was bagged, causing disorientation, and he was forced to face interrogators kneeling in a position of subjugation.
The CIA also used sensory manipulation to damage Mr. al-Kazimi's mind. Deprivation was imposed through darkness and isolation, then alternated with overload through bombardment of deafening music for long periods.
It Doesn't Get Better
As my client recounted these events, guards interrupted us to announce the morning meeting was over and ordered my team and me to leave. I should have requested to speak with the officer in charge. Though I have built up a fair amount of thick skin from years of meeting with clients in jails and prisons, often at the lowest points of their lives, this session with Mr. al-Kazimi had brought me near my breaking point. I was drained, and my usual impulse to protest fizzled; I packed up and left.
I will always regret that. I left my client alone in a dark, nasty cell, suffering from the pain I had called on him to summon up. He had no book, not even his Koran, for comfort or diversion. His stability was already precarious, and his efforts to push back the ugly memories of torture, to find some comfort in denial, were not working.
When I returned for the afternoon session, he rightly condemned my conduct. He did not want to remember. All he wanted was to see his family. My client's pain and the depths of his despair were overwhelming. I listened, apologized, and listened some more. Then I spent the remainder of our time together trying to instill some hope in him. I spoke of the transition in U.S. leadership that promised significant change.
I was wrong. The Obama administration would come to adopt the same legal positions as the Bush administration on issues critical to my client, reinforcing how little protection the law could provide him. I did not anticipate the many ways the new president would continue on the same course as his predecessor. Bush's heavy redactions of critical information would be surpassed by Obama's effective use of the law to hide the truth.
The first blow vitiated a legal win that was important to my client. The summer before our January meeting, habeas courts had ordered the government to provide at least 30 days' notice before transferring a prisoner out of GTMO. The Bush administration had, of course, opposed the order, contending it was an inappropriate interference with the president's prerogative to determine when transfers were appropriate. Soon after my visit the Obama administration embraced the same position, and it eventually prevailed on a higher court to throw out the ruling.
The notice order was designed to provide men the opportunity to challenge repatriation to countries where they feared a fate worse than GTMO—but for Mr. al-Kazimi, the concern was being plunged back into another Dark Prison. My efforts to convince the habeas judge to issue a notification order tailored to my client's history of torture, repeated relocations, and legitimate fear of being spirited away to another secret prison were unsuccessful.
The Obama administration prevailed with its claim that my client's concerns were "hypothetical" and "speculative" and had "no present likelihood of occurring."
This was particularly offensive. His fear was well-grounded in light of his experience, and the administration's limited assurance that there were no "present" plans to suddenly move him left open the possibility of a subsequent transfer.
The stability and predictability that "the law" was designed to provide had disappeared. But when I arrived at GTMO a week after Obama's inauguration, all this was in the future.
The second blow came quickly. Upon my return from that wrenching January meeting, I demanded records of my client's secret detention and torture, including video footage he believed might exist. Obama's lawyers replied by claiming the only relevant records were those dating from when my client became an "official" prisoner of the U.S. military, which was after he surfaced from the dark detention facility.
When I asked the habeas judge to order the administration to disclose records of detention that preceded military detention, Obama's lawyers refused to confirm or deny such imprisonment and treatment had ever taken place. Rather than reject the government's doublespeak and order it to reveal what had been done, the judge created a legal fix that permitted Obama, like George W. Bush, to keep America's war crimes covered up.
The judge wanted to avoid having to contend with the messiness that records of torture would inject into a legal proceeding he was striving to keep focused and narrow. So in light of Obama's refusal to refute my client's claims, he stipulated that the torture had taken place. This appeared to serve my client's interests, since the government would no longer be able to contest the fact of what he had endured. But in reality, the move was directly in conflict with my client's wishes.
Mr. al-Kazimi had an aching need for the U.S. to own up to what it had done to him. He could forgive the CIA's cruel trespasses on his health and dignity; what gnawed at him was the government's refusal to admit what it had done. The Bush administration's contention, to this day, that it did not engage in torture tears at my client. The Obama administration is complicit through its silence and strenuous efforts to stave off disclosure of America's crimes.
Since he emerged from secret imprisonment into military custody, everyone—military interrogators, FBI interrogators, officers in charge, guards, and medical personnel—has pretended the torture did not happen. It has exacerbated my client's trauma to have it erased before his eyes.
Moreover, Mr. al-Kazimi cannot act as witness to the full story of the treatment perpetrated against him. His ability to remember and recount his experience was understandably compromised by cruel treatment, sleep deprivation, and the use of unidentified drugs.
'You Love the Law Too Much'
I expected much better from the Obama administration. Just months after his inauguration, the president issued an executive order promising that the administration would "operate with an unprecedented level of openness." Instead, the obsession with secrecy got worse.
Through litigation, I persuaded a judge that Mr. al-Kazimi's medical records from his secret imprisonment were relevant and should be provided to me. Rather than comply with the judge's order, Obama's lawyers filed a document that I have never been permitted to read, despite having the appropriate security clearance to do so. From what I can piece together from the subsequent decision (which was eventually made public in a heavily redacted form), it appears the administration declared that our nation would be put at risk if my client's medical records were disclosed to me. Not the public—me, a licensed lawyer, law professor, and person deemed capable by the U.S. government to maintain the confidentiality of classified and top secret government documents. Why, despite an elaborate system in place to facilitate habeas counsel access to classified information, was this specific and narrow set of information utterly off-limits? And why were medical records—information about an individual's health and treatment—deemed "classified" in the first place?
The president controls the definition and designation of classified information. Under current executive orders, such information must implicate one of several national security-related topics, such as military plans, foreign government information, and intelligence activities, and its "unauthorized disclosure" must "reasonably be expected to cause exceptionally grave damage or serious damage to national security." It's unclear what could be in my client's medical records such that disclosure to a security-cleared lawyer risks causing grave harm to our country's security.
My client once told me that I love the law too much. He did not say it to criticize me, but to help me understand that he needed some refuge from "the law."
The promise of the law to bring clarity, resolution, accountability, and some semblance of predictability to my client's fate was never fulfilled. Instead, the process of attempting to obtain a reasonable sense of what would happen to him in the future was compounding his fear and disorientation.
His "legal status" has little meaning or contours. He is ostensibly detainable until the end of hostilities, even as hundreds of others have gone home. The Obama administration designated my client for prosecution, but no charges have been brought against him. The president claims he intends to "close GTMO" before he leaves office, but his plan is to relocate the facility to U.S. soil—continuing indefinite imprisonment without trial and dumping the problem on the next administration, just as Bush did to him.
For my client, the "rule of law" permits the U.S. to hide its crimes and to take away someone's liberty for a wholly undefined length of time.
Mr. Al-Kazimi remains imprisoned at GTMO. In 2013, he and most other prisoners were placed in solitary confinement to break a widespread hunger strike—an act of peaceful protest against being forgotten. He did not emerge from solitary until over a year later.
At the end of 2014, Obama finally permitted the Senate Intelligence Committee to release a redacted executive summary of its torture report; the full report, numbering over 6,000 pages, remains classified. But there is now a public document other than my client's own sworn declaration that confirms the CIA maintained secret prisons under harsh conditions and engaged in brutal torture, and it includes my client as one of the "at least" 119 who were covertly held by the CIA.
Sanad al-Kazimi's fate is still wholly uncertain.
This essay is from Obama's Guantánamo: Stories from an Enduring Prison, edited by Jonathan Hafetz © 2016. Reprinted with permission from NYU Press.