I made my first trip to Guantánamo in July 2010. Prior to that, doing primary research on the fight against US torture in the “war on terror” was limited to interviews with lawyers who worked at Guantánamo, either civilians who had volunteered to serve as detainees’ habeas counsel or JAGs defending clients facing trial in the military commissions. There were many things my interviewees could not tell me, including details about how their clients had been tortured by US interrogators, because they were subject to stringent gag orders to prevent them from conveying truths that would contradict the government’s lies and misrepresentations about “humane treatment.” Guantánamo’s well-deserved description as a “legal black hole” felt personal: I could not access a site central to my research, neither as a scholar nor as a concerned citizen. Or so I thought.
In June 2010, I had lunch with a psychologist who specializes in torture victims. She was working with the defense lawyers representing Omar Khadr, a Canadian citizen who had been captured in Afghanistan in July 2002 when he was fifteen and transferred to Guantánamo in October right after his sixteenth birthday. Khadr was the first person the Obama administration put on trial in the military commissions. The pretrial hearings, which had started in April, turned on what evidence the military judge would allow the prosecution to use. The defense’s position was that every self-incriminating statement should be excluded as a product of torture and coercion. My psychologist friend, who had spent more than 700 hours working with Khadr, was scheduled to testify when the hearings resumed in July. I expressed frustration that I couldn’t be there to observe the hearing first-hand. She suggested that I could go as a journalist. Genius idea! She put me in touch with Carol Rosenberg, the dean of the Gitmo press corps, and Carol helped me figure out how to apply to be part of the media delegation. That is how I made my first trip to Guantánamo.
I returned to Guantánamo thirteen more times. I was present for the hearings that concluded Khadr’s case with a plea bargain, and many hearings of the 9/11 case involving five defendants, all of whom had been disappeared and tortured by the CIA for years before their transfer to Guantánamo in 2006. The 9/11 case had started in 2008 during the Bush administration, but it was derailed when the defendants made the legally impossible offer to plead guilty on the condition that they go directly to execution—martyrdom by military commission. The Obama administration had intended to try the five in federal court, but that was derailed by right-wing politicians’ histrionics and the Obama White House’s timidity to defend its own plan. The 9/11 case restarted in 2011 when the defendants were re-arraigned in the commissions.
The pretrial hearings in the 9/11 case dragged on year after year as the defense teams fought the prosecution for information about how their clients had been treated in CIA custody. For many hearings, the media delegation had less than ten journalists, sometimes much less, because motion battles over discovery and complex, arcane points of law were not the stuff of headline news. But I attended as often as I could. Those motion battles helped me to understand that the case was spinning its wheels in the pretrial phase because it was caught in a triangulated set of conflicting interests. One side of the triangle, the defense was fighting for access to classified information about what happened to their clients in CIA custody, insisting that pretrial treatment is legally relevant in any criminal case and, in death penalty cases, heightened due process should apply. The prosecution, the second side of the triangle, insists that this trial is about the defendants’ roles in the crime of 9/11, and that what happened to them afterward is unrelated to their involvement in these events. In lieu of giving the defense original CIA material, prosecutors produced summaries and substitutions, which obscure specific dates and locations and mask the identities of people with unique functional identifiers, like “Interrogator 1,” and pseudonyms, like “Dr. Shrek.” The CIA is the third side of this triangle because it controls the information the defense seeks and the process that guides the prosecution’s preparation of discoverable materials. The CIA has no institutional interest in due process or fair trials, only in maintaining its secrets. The core of the problem, as I came to understand, is not that the CIA’s secrets must be protected in the interest of national security, but rather that the government has prioritized the protection of those secrets over basic tenets of the rule of law and due process in this capital case.
My last trip to Guantánamo (so far) was in January 2020. That hearing was the most momentous because James Mitchell and Bruce Jessen, the private contractors who designed and ran the CIA’s black site program, were there to testify. During questioning by defense attorney James Connell, Mitchell explained his approach to Pavlovian conditioning to achieve “learned helplessness.” His assumption—and by extension the CIA’s position on coercive interrogations—was that “actionable intelligence” could only be gleaned from “high value detainees” by attacking their psyches through physical and psychological tactics to produce “debility, disorientation, and dread” which would make them “compliant” during questioning.
These are tidbits of the many stories I tell in The War in Court: Inside the Long Fight against Torture, published by the University of California Press (2022). My book is based on two decades of research. I take readers on a journey through the legal landscape where a fight against US torture was waged across four administrations. The people who battled the government over torture, forced disappearance, and protracted incommunicado detention at Guantánamo, CIA black sites, and military prisons in Afghanistan and Iraq were lawyers. I explain why hundreds of legal professionals—JAGs and attorneys from the toniest corporate law firms, human rights lawyers and solo practitioners, law professors and their students—were galvanized to defend the rule of law that was upended by the torture policy and enlisted in what turned into a war in court. I trace how they formed alliances and strategized their battles in federal courts and military commissions to try to defend the rights of their clients—prisoners in US custody. I explain the ambitious and justice-minded but ultimately unsuccessful efforts to hold government officials responsible for the crime of torture to account or to provide justice for victims. Readers will hear the voices of those involved in the fight against torture and learn the stories of some of the thousands of victims of US torture. They will come away with a clearer understanding of the role of secrecy, propaganda, and official lies in perpetrating and perpetuating one of the darkest chapters of US history. Although the subject of this book is grim, readers can find hope, heroism, and even some humor in the way the story is told.
The issues and policies that drove the fight against torture are not over because Guantánamo is still open, many aspects of the now-defunct CIA interrogation program remain classified, and the military commissions are still engaged in the legal farce that torture and justice are compatible. But the book’s big takeaway is that without the individual and collaborative efforts of lawyers and their allies, there would have been no concerted opposition to torture. The record of outcomes in this fight is a mixture of wins and losses in courts. But imagine how much worse things would be if this fight, which is ongoing, was not waged at all.
Lisa Hajjar is a professor and chair of sociology at the University of California – Santa Barbara, and incoming chair of the Peace, War and Social Conflict Section of the ASA. Her work focuses mainly on issues relating to law and conflict, including military courts and occupations, torture, targeted killing, war crimes, and human rights. Her publications include Courting Conflict: The Israeli Military Court System in the West Bank and Gaza (University of California Press, 2005), Torture: A Sociology of Violence and Human Rights (Routledge 2013), and her new book, The War in Court: Inside the Long Fight against Torture (University of California Press, 2022).