Lisa Hajjar, The War in Court: Inside the Long Fight against Torture (University of California Press, 2022).
Jadaliyya (J): What inspired you to write this book?
Lisa Hajjar (LH): The War in Court traces the fight against US torture in the context of the “war on terror” and the complicated legacy it has left. My long-running interest in torture grew out of my curiosity about the relationship between law and political conflict. As a sociologist of law, I am especially fascinated by fights on the legal terrain over what is legal and what is not, who wins and who loses, and why.
This began when I was doing my PhD dissertation on the Israeli military court system in the West Bank and Gaza. I came to understand that Israel’s larger strategies to control Palestinians relied heavily on coercive interrogations in order to get confessions that could be used to prosecute, convict, and imprison them. In the late 1980s and early ‘90s, Israel had the largest per capita prison population in the world. Another part of my research focused on the battles that Israeli human rights lawyers were waging throughout the 1990s in the High Court of Justice to end the state’s authorization of violent interrogation techniques. They won a partial victory in 1999 when the HCJ issued a rulingprohibiting the “routine” use of coercion. My study of how torture and the law play out in the Israeli-Palestinian conflict evolved into my first book, Courting Conflict.
Another set of events that nourished my interest in torture and the law was the arrest of former Chilean dictator Augusto Pinochet while he was in London in 1998. A Spanish judge, Baltasar Garzón, issued an international arrest warrant and a request for the British government to extradite Pinochet to Spain to stand trial for murder and torture perpetrated in Chile during the dictatorship. This extradition request was based on an international criminal law doctrine that had not been used since the heyday of slave trading and piracy: universal jurisdiction. Garzón resurrected the doctrine by contending that Pinochet could be prosecuted in a foreign country (Spain) because his crimes made him “an enemy of all mankind,” and he had not been held accountable at home. When the British Law Lords evaluated the charges in the Spanish warrant, they decided that Pinochet was not extraditable for murder because killing people is what happens in wars. But they decided that he was prosecutable for torture because no one has a “right” to torture and sovereign immunity cannot shield even a former head of state from accountability for this gross crime. Although the British government decided, for political reasons, not to extradite Pinochet to Spain, the “Pinochet precedent” had a transformative effect on international criminal law. And for the record, universal jurisdiction is my favorite jurisdiction.
Having thought about torture nonstop for a decade, by September 11, 2001, I was primed to hear dog whistles, like Vice President Dick Cheney’s September 16 interview on Meet the Press in which said that it would be necessary “to use any means at our disposal…to achieve our objectives.” He was hinting that the only way to get “actionable intelligence” from nefarious and shadowy enemies would be to capture people and interrogate them using violent means. A different kind of dog whistle was audible to me when pundits and scholars invoked Israel as a model the US government should emulate.
For the first couple years of the “war on terror,” like the rest of the public, I had little idea what was actually happening in US detention facilities except things reported by investigative journalists and human rights organizations. Then in 2004, a trifecta of events blew the lid off the secret torture program. The first was the publication of the Abu Ghraib photos on April 28. The Abu Ghraib scandal roused Congress to start asking for information and grilling officials about the administration’s prisoner policies. That sparked the second event; between May and early June, some legal memos and policy documents pertaining to interrogations were released or leaked. They were instantly and aptly were branded “torture memos.”
The most shocking memo was authored by John Yoo who served as deputy assistant attorney general in the Office of Legal Counsel between 2001 and 2003. Written for the CIA, this August 1, 2002 memo laid bare justifications for gruesome and violent tactics while emboldening the Bush administration to believe that using them would not violate any applicable laws. I started giving public lectures titled “What’s the Matter with Yoo?” The Nation invited me to review a bunch of books about the “war on terror,” including several collections of the torture memos, which deepened my understanding of US torture and the law.
Even more than the photos of naked prisoners being tortured at Abu Ghraib, the intellectually pathetic and ethically abhorrent contents of the August 1 memo scandalized many lawyers because it threw into question the blackest of black letter law by sanctioning practices that are universally prohibited and constitute a crime under US law. Angry lawyers found an outlet to channel their rage when, on June 28, the Supreme Court issued a landmark ruling in Rasul v Bush—the third event in the trifecta. That case, first filed by the Center for Constitutional Rights in February 2002 to challenge the president’s authority to secretly detain people at Guantánamo, was won by the challengers. The Court decided that people detained at Guantánamo have the right to have their status reviewed by a federal court. Lawyers from around the country started contacting the Center for Constitutional Rights and volunteering to be habeas counsel for Guantánamo detainees. This was the origin of the “Gitmo Bar.”
This trifecta of events was the trigger for the research that led to this book. Between 2004 and 2020, I interviewed over two hundred lawyers—military and civilian, Democrats and Republicans, corporate and human rights and small firm private practice lawyers, law professors and their students—who in one way or another played roles in challenging the government’s prisoner policies. Their stories, struggles, wins, and losses are the focus of my book.
J: What particular topics, issues, and literatures does the book address?
LH: I decided to write this as a trade book for a general audience rather than an academic book for specialists because I wanted to convey information about complex issues in an accessible and interesting way. The topics addressed in this book include the Geneva Conventions, US Supreme Court jurisprudence, the workings of the Guantánamo military commissions, the doctrine of state secrets, and of course universal jurisdiction.
Like the narrative arc of a military history, I narrate the war in court across time, focusing on specific battles and fighters. I analyze how an outcome in one battle set the ground for the next. I tell the origin stories and trace the consequences of three major cases that made it to the Supreme Court: Rasul v Bush, which opened Guantánamo to lawyers; Hamdan v Rumsfeld, which cancelled the military commissions President Bush had created by decree in 2001 (although the commissions were resurrected by Congress) and, importantly, recognized that everyone in US custody is protected by the Geneva Conventions, which forced the closure of the CIA black sites; and Boumediene v Bush, which determined that detainees in Guantánamo have a constitutional right to habeas corpus.
Another set of cases I track involved efforts in US and foreign courts to pursue justice for victims and accountability for the US officials who perpetrated and abetted the gross crime of torture. Only a few of accountability cases were successful. Throughout the second half of the book, I take readers into the Guantánamo military commissions to understand that travesty of justice spanning four US administrations. Between 2010 and 2020, I made fourteen trips to Guantánamo.
I devote the final chapter to the 9/11 case because, more than any other cases that constitute the war in court, this one best illustrates the high costs and unforeseen consequences of torture. The case against five defendants accused of playing roles in the 9/11 plot began in its first iteration in 2007. It fell apart before Bush left office. The Obama administration, after a failed attempt to move the 9/11 case to a federal court in Lower Manhattan, restarted it in the military commissions. The defendants were rearraigned in 2012. The main (but not only) reason the case has not moved beyond the pretrial phase for over a decade is because the five defendants were brutally tortured by the CIA, and the government, one administration after another, continues to insist that much of what happened to them remains a state secret. I title this chapter “The Last Front” because torture is the nasty center of this case and the fight continues.
J: Who do you hope will read this book, and what sort of impact would you like it to have?
LH: I hope everyone who wants a deeper understanding of the “war on terror” will read this book. I tell some stories that have not been told elsewhere and, because my research spanned almost two decades, I make connections among events and personalities that could not be made by authors who covered shorter periods of time or focused on more singular events.
Although the subject of the book is bleak, I think readers can draw some solace by learning that hundreds of lawyers and their allies stepped up and fought against the illegal treatment of prisoners. But for their labor and struggles, there would have been nothing to stop torture. While lawyers fighting the war in court won a few important legal battles and the torture program is over, there can be no political reckoning until many Americans understand and accept that the policy choices to authorize coercive interrogations, kidnapping, forced disappearance, and sham commission proceedings and all the officials who played a hand were wrong. If that is what readers take from my book, I will be satisfied that I played my part in the fight against torture.
Excerpt from the book (from Chapter 7: Trying Guantánamo)
One of the Guantánamo detainees the Bush administration attempted to prosecute early on was Binyam Mohamed, an Ethiopian national with British residency. In the summer of 2001, Mohamed, who had recently kicked a drug habit and converted to Islam, decided to go to Afghanistan to get away from temptations in London and learn more about his new religion. When the war started in October, Mohamed went to Pakistan. In April 2002, he was on his way home to England when he was arrested at the Karachi airport. During the three months he was detained in Pakistan, his interrogators included agents from Britain’s MI5 and the FBI who threatened to send him to some Arab country, implying that his treatment there would be even worse. On July 21, Mohamed and two other detainees were turned over to CIA agents wearing ski masks. They were stripped, photographed, sodomized with tranquilizers, and flown to Morocco.
In Morocco, Mohamed’s torturers were locals but the questions they were asking clearly came from British and US intelligence sources. Over the eighteen months he was held in that country, he suffered multiple broken bones, his penis was cut with a scalpel between twenty and thirty times, sometimes while stinging liquid was poured on the bleeding wounds, and he was threatened with rape, electrocution, and death. He was pressed to confess that he had associated with Osama bin Laden and others in the top echelon of al-Qaeda. If the circumstances weren’t so tragic, these allegations would be laughable, because he couldn’t speak Arabic and was a recent convert. On January 21, 2004, he was extraordinarily rendered to Afghanistan where he was held in the CIA black site known as the “dark prison.” There, he was beaten, sleep deprived, subjected to constant noise—“horror sounds”—at extreme levels, drugged, and nearly starved. In May, he was transferred to Bagram where he was forced to confess that he had plotted with Jose Padilla, a US citizen, to set off a “dirty bomb” in the United States. In September, he was transported to Guantánamo.
Clive Stafford Smith was Mohamed’s habeas counsel. He met Mohamed for the first time on May 2, 2005. Stafford Smith described that encounter to me: “He talked for three days straight. I could barely keep up taking notes. I felt like I had PTSD, let alone him!” When the Bush administration charged Mohamed with conspiracy and material support for terrorism in November 2005, he was assigned a military defense lawyer, Lieutenant Colonel Yvonne Bradley. Stafford Smith shared his notes with Bradley. As she read through them, she realized that the charges were absurd. She wondered what these commissions were trying to achieve.
Before Mohamed’s first hearing in April 2006, he asked Stafford Smith for several items: a long cotton tunic of the sort commonly worn by men in the Arab world which should be dyed the same orange as his prison uniform, a piece of paper and a black magic marker.
Back then, the hearings took place in a small, crowded courtroom in a building that had once served as the base’s dental clinic. The journalists attending Mohamed’s hearing included the Miami Herald’s Carol Rosenberg, dean of the Gitmo press corps, and reporters from the New York Times, the Wall Street Journal, and the Los Angeles Times. Observers from Human Rights Watch, Amnesty International, and the ACLU were there. Janet Hamlin, an artist who frequently did illustrations of commission proceedings (which had to be approved by censors), was seated at the front of the room. Joseph Margulies, Mohamed’s other civilian lawyer, was there, too.
When Stafford Smith arrived in the courtroom, he started chatting with Rosenberg. A soldier immediately cut them off and admonished the reporter, “You can’t be talking to the people taking part.” Rosenberg retorted she had been attending hearings for months and knew a lot more about how things work than he did. When Mohamed arrived wearing his orange tunic, he was half-carried to his seat by guards because it was difficult to walk in shackles. Rosenberg leaned over to ask Stafford Smith for the correct spelling of his client’s name, since it was spelled in different ways in court documents and the media. That was a good set-up for the political theater that Mohamed was about to direct.
The proceedings started when the judge, Colonel Ralph Kohlmann, arrived. (Military judges wear a black robe over their uniforms.) The judges’ roles in these hearings were literally scripted by the Pentagon. As Judge Kohlmann started reading from his script, his first mistake was immediate: he referred to the defendant as Binyam Ahmed Muhammad. Mohamed, when it was his turn to speak, said: “Torture and they still don’t get the right name. That means you’ve got the wrong person…The man you’re looking for is not here. I am not Binyam Ahmed Muhammad…So now we have a problem.” In the back-and-forth over the name of the person on trial, Mohamed said, “I can’t call you Ralph Kallman rather than Kohlmann, can I, and arrest you and put you in jail? Because that’s not you? Four years of—what do you call it?—enhanced torture techniques, and we have the wrong person in court. I mean, that bothers me. I don’t know how it doesn’t bother you.”
Kohlmann stuck to the script and continued calling the defendant “Muhammad.” When he got to the part about a defendant’s rights, he said, “I hope your attorneys have told you…that as you come here and sit here today you are presumed to be innocent under commission law.” Mohamed responded: “What is this rights you’re talking about? Because I have been four years without rights and now all of a sudden I got rights. I am surprised.” Kohlmann, thinking Mohamed was earnestly confused, explained that his rights come from Military Commission Order 1, and one was his right to be represented by a military lawyer. Mohamed pointed out the paradox of being represented by a soldier serving a government that regarded every detainee at Guantánamo as a guilty terrorist. He said he wanted to represent himself. Kohlmann didn’t understand his point and tried luring Mohamed to say that he did not want Stafford Smith and Margulies. Mohamed punched back: “They’re my advisers.”
Bradley stood up to explain to Judge Kohlmann that she has an ethical conflict: She was working in an office with other military defense lawyers whose clients’ cases were affected by statements Mohamed made against them under interrogation. Kohlmann pulled rank by lecturing her about correct decorum in the commission, implying that nothing should deviate from his script. Bradley pointed out the elephant in the room: “The problem is I don’t understand commission law. I mean, I don’t think anyone understands commission law.”
Mohamed chimed in: “I’m happy that she stood up there and said she’s confused, and I can understand why…This is not a commission, this is a con-mission, a mission to con the world, and that’s what it is.” Then he pulled out the piece of paper on which he had written, in large black letters, “CON-MISSION.” He flashed it around so everyone could see. “You can execute me tomorrow, but don’t try and cheat the world of what this really is…You start playing around with con-missions here, then tomorrow we have another one in Canada, and then the next day have another in Australia, and the next day have it somewhere, another place, where certain non-citizens have to obey some rule that just got made up.” After Mohamed finished, Kohlmann said, “I am not going to let you put up signs.” Mohamed responded, “But it is not in the rules not to put up signs.” “OK, so we have a new rule,” Kohlmann said. “No more signs in court.”
The judge turned back to the task of dressing down Bradley. “With all due respect, your honor,” she responded, “I exercise my Fifth Amendment rights” to stay silent. Several minutes later, a soldier came into the courtroom and handed Kohlmann a note. He read it, then called a fifteen-minute recess. The Pentagon was monitoring the hearing by video and did not like the scene of a military lawyer being assailed by a military judge. The recess never ended. In June, the Supreme Court canceled the commissions with the Hamdan ruling.
After Congress passed the Military Commission Act in October 2006, the Bush administration restarted the process of trying to extract some retributive justice from terrorists detained at Guantánamo. That, at least, was the public relations version. In reality, the MCA was a whitewash and a workaround for torture. Military commission prosecutors would still be able to use statements obtained through coercion if they were deemed to be “reliable” and their use was “in the interest of justice.”
The administration needed legislative help to reconcile its torture policy with the Supreme Court’s Hamdan decision that Common Article 3 of the Geneva Conventions applies to everyone in US custody overseas. Although officials would not admit that Hamdan killed the torture program, for all intents and purposes it died but was denied a proper burial. The CIA black sites were emptied in September and fourteen “high value detainees” were transferred to Guantánamo. The administration wanted to prosecute at least some of these men and didn’t want their torture to be a stumbling block on the path to guilty verdicts and executions.
But the MCA had consequences unintended by the law’s supporters. Military and civilian defense lawyers used the trials of their clients to bring long-hidden facts to light and, in doing so, exposed government lies.