If you doubt that we are still “a nation of laws,” you haven’t visited the American Civil Liberties Union web site to peruse the thousands of pages of government documents concerning the “war on terror” made available through Freedom of Information Act litigation. While Bush administration policy may have developed in defiance of our proudest and most important legal principles—habeas corpus, the prohibition of torture, and the separation of powers, to name but three—there is no shortage of legal reasoning.
For example, in 2002, when the CIA wanted to “waterboard” high-value prisoners, agents didn’t just strap them to boards and funnel water into their mouths to induce the sensation of imminent death. No, because this is a nation of laws, they first contacted the Justice Department to inquire whether doing so would be “legal,” or more aptly, whether agents who waterboard prisoners would be at risk of prosecution. Justice Department lawyers gave the CIA a green light for this tactic—a favorite of medieval inquisitors and military dictatorships—by reasoning that: (a) federal anti-torture laws do not apply beyond the territorial jurisdiction of the US; (b) the suffering caused by waterboarding is not “prolonged” and thus does not qualify as torture; and (c) suspected terrorists have no legal right to humane treatment. To date, despite the passage of the McCain Amendment reinforcing the prohibition against torture and cruel treatment, neither the attorney general nor the head of the CIA has stated that waterboarding is un-American or that it will not continue to be used.
Fealty to the law can be a wonderful thing, but the current juncture makes abundantly clear that what is “legal” can change with the political winds. Consider the issue of executive power, which is directly implicated in a host of policies, from the treatment of foreign prisoners to warrantless spying on citizens. Officials and lawyers in the Bush administration advanced a radical interpretation of Article 2 of the Constitution to assert that the president, as commander-in-chief in wartime, has unfettered authority to disregard federal laws if he determines that doing so is necessary for national security. Many people have criticized and some have demonstrated against the dubious legality of policies instituted by our “imperial president.” However, in battles to curb executive branch excesses and shameful state practices, courtrooms are the front lines and lawyers play an especially important role.
I have interviewed several dozen of the hundreds of lawyers who form what is now called the Guantánamo Bar, the network of legal representatives for detainees in the prison camp in Cuba. They are a diverse lot: Republicans and Democrats; veterans and peaceniks; corporate, death penalty, civil rights, and military lawyers. They are motivated by a deep dread that US interrogation and detention policies are putting the rule of law itself at risk and a willingness to dedicate their time and skills to defend it. This dedication comes in spite of rightwing pundits’ disparaging them as “terrorist lawyers,” and the Pentagon’s attempt to throw countless obstacles in their path, as it did for the lawyers who represented, but were blocked from ever meeting, one of the three detainees who committed suicide two weeks ago. (The other two were not represented.)
Two of these Guantánamo Bar lawyers, Charles Swift and Neal Katyal, are co-counsels in what will certainly be a landmark federal case that the Supreme Court will decide this week. Hamdan v. Bush challenges the legality of the military commissions established by President Bush in November 2001, but, more importantly, it challenges unfettered executive power. Swift—a garrulous charmer—is a lieutenant commander in the Navy and a member of the JAG Corps. Katyal, who worked as a National Security adviser in the Justice Department during the Clinton administration, is a professor at Georgetown University. One would be pretty deluded to imagine that they fit some “terrorist sympathizer” profile.
Swift was assigned to serve as a defense lawyer for Guantánamo detainees in 2003, before anyone had actually been charged. He spent months studying the statute for the military commissions, and was appalled to see how far it deviated from the military justice system (of which he is exceedingly proud) and from even the most modest rule of law standards. When he was assigned to represent Ahmad Hamdan—a Yemeni with a fourth-grade education who was Osama bin Laden’s driver in Afghanistan—Swift learned that he was one of the first to be charged because he had agreed to plead guilty under brutal interrogation. At the time, the Pentagon was hoping a couple of quick plea bargains could be sold to the public as victories in the “war on terror.” Swift refused to abandon his legal ethics and instead mounted a vigorous defense for his client, and for the rule of law. Katyal, an expert in constitutional and security law, offered his services, and when their case found its way to the Supreme Court, he was the one to present their arguments.
To locate these men in the larger picture, consider that Swift and Katyal see themselves as allies and work in alliance with all of the lawyers who represent Guantánamo detainees, and with others representing people who have been tortured in Afghanistan and Iraq, or rendered by the CIA to foreign governments for torture. An enlightened public should appreciate the invaluable service that lawyers who take these types of cases are providing, not just for their clients—and, indeed, there is little they can actually do for their clients—but for the nation to thwart the slide toward tyranny. The definition of tyranny is a government that accretes to itself the power to hold people incommunicado indefinitely, to torture and brutalize them, to inoculate itself from any accountability, and to rewrite the laws to make this (putatively) lawful. Swift, Katyal, and their allies are trying to restore our self-image as a “nation of laws” that have the actual characteristics of law: justice, fairness, and rights.