Steve Downs is former Executive Director of the National Coalition to Protect Civil Freedoms
On September 13 and 14, 2017, Kathy Manley and I attended a remarkable conference on Washington organized by the Military Legal Defense team for prisoners at Guantanamo, and various civil rights organizations including our organization National Coalition To Protect Civil Freedoms (NCPCF); George Washington Law School; and Witness Against Torture. This third annual conference (which I have taken to calling the “Al-Baluchi Conferences” in honor of its true creator) was entitled Building National Security on Inalienable Rights. It seemed to herald a new cooperative effort by some members of the military, together with civil rights organizations to deal with the corrosive issue of torture and abuse of civil rights.
The “Al-Baluchi conference” had an unusual beginning that continues to contribute to the unusual nature of the conference itself. In May 2014, Kathy and I, as members of Project SALAM, published a report about preemptive prosecution entitled, “INVENTING TERRORIST: The Lawfare of Preemptive Prosecution” A few months later we received a call from Major Rashid Williams who was a military lawyer, representing a prisoner in Guantanamo, Ammar Al-Baluchi. Major Williams subsequently flew to Albany to meet with us. Major Williams said that Al-Baluchi, one of 5 prisoners at Guantanamo facing the death penalty, had refused to cooperate with his defense team since lawyers had been assigned to him. Al-Baluchi apparently reasoned that since US armed forces were providing the military prosecutors and also the military defense counsel at Guantanamo – all of whom followed the same military command structure, there was every reason to believe that defense counsel were just as interested in convicting him as the prosecutors.
All 5 defendants facing the death penalty had been repeatedly and illegally tortured by US authorities, and the US government was making extraordinary effort to prevent information about the torture from becoming public. This included bizarre and stupid attempts at cover-up, like classifying the thoughts of the defendants so that their lawyers could not talk to their clients about the torture without clearance from the prosecution. As a result of this preoccupation with covering up the torture that had been ordered at the highest levels of the US government, all the cases at Guantanamo had become hopelessly bogged down, and it seemed as though some of the cases might never be tried.
ne day, after refusing for years to talk to his lawyers, Al-Baluchi surprised everyone by calling the lawyer’s attention to our Inventing Terrorist report, and suggested that the authors of the report were correct in their analysis. (I think he spoke to them because at least one of his attorneys went into Gitmo for a couple days around August 2014, which was a new thing.) (How a copy of Inventing Terrorists made its way into the black hole of Guanatamo is unknown – part of the amazing nature of what happened next.) He asked his defense team to talk to us – Project SALAM.
The defense team was doubtful that talking to us would do any good, but since this was the only meaningful conversation they had had with Al-Baluchi, they decided that they should to try to build a relationship with him by following up on his suggestion. We had a good conversation with Major Williams. Since I was going to be in Washington soon afterwards in connection with my job as Executive Director of NCPCF, I agreed to meet with the Al-Baluchi’s defense team while I was in Washington.
At our second meeting in Washington, we agreed to hold a joint conference with NCPCF, which was focused on the unfairness of domestic terror prosecutions, and the Guantanamo defense lawyers, who were focused on the unfairness of Guantanamo. What did they have in common? What could they learn from each other? Around that time. I had to resign as Executive Director of NCPCF because my wife was battling pancreatic cancer. Fortunately, my eventual successor at NCPCF, Maha Hillal, had independently started a conversation with Guantanamo Defense Counsel, and was only too happy to encourage a conference. It was largely through her efforts and efforts of defense lawyers at Guantanamo that the conference came about.
I attended the first conference in 2015 and made a presentation with Kathy Manley about preemptive prosecution. It was a relatively small gathering of defense military officers and activists sitting around in a small room of an activist organization, getting to know each other. A year later, we met again. This time the event was at a university. It was open to the public and many more people attended. On September 14-15, 2017, the conference was held for a 3rd occasion, this time at George Washington University Law School. The 3rd event was well funded and well attended including by top military personnel, important civil rights advocates and the public. In just four years the event suggested by Ammar Al-Baluchi had grown into a major conference. Something odd was going on.
The 2017 conference, had a sense of urgency I had not felt before, revolving around the issue of torture it seemed to me. Brigadier General John Baker, who was the head of the Guantanamo Legal Defenders, indicated that progress toward trying the cases of the last 41 prisoners at Guantanamo had largely stalled. (Only 10 were charged (inc 2 who pled guilty and 1 who was convicted) 26 are ‘forever prisoners’ who won’t be charged (but have periodic reviews), and five are cleared for release . http://www.miamiherald.com/news/nation-world/world/americas/guantanamo/article127537514.html ) Indeed, it was moving backward. Because of continual serious misconduct by the prosecution, the cases were further from being tried than they were when they were first brought over a decade ago. The misconduct by the prosecution was so serious, deliberate and inexplicable, that it suggested to some that the prosecution no longer intended to try the cases and was simply engaged in creating excuses to delay prosecution; the defendants had been tortured, and the main focus of the prosecution now was to prevent the overwhelming evidence of torture, approved of at the highest levels of government, from being made public. Robin Maher, a lawyer and professor at George Washington University, made an impassioned argument that keeping a defendant on death row indefinitely, awaiting a trial that may never come, was by itself torture. As one who had dealt with death row cases, she spoke of the complicity that death row defense lawyers themselves felt at the apparent torture of their own client. The pain for clients indefinitely on death row was so great that increasingly these clients were choosing suicide as a way out.
The conference included presentations by Lakhdar Boumediene and Mustafa Ait Idir, both of whom spoke by Skype from France. Both Boumediene and Idir were prisoners for seven years in Guantanamo until being release in 2008, after being tortured but without ever being charged. Boumediene was the lead plaintiff in one the key cases before the Supreme Court of the US, which established the principle that the US government had to provide prisoners in Guantanamo with a hearing to contest the basis on which the US government was holding them. As a result of the winning the case in the Supreme Court, a number of prisoners including Boumediene and Idir were eventually released because there was no basis to hold them. Their arrests had been a sham. Boumediene and Idir had since written a book (Witness to the Unseen :Seven Year in Guantanamo) about their experiences in Guantanamo, which showed the dignity and courage with which they had born the injustice and torture of their confinement.
There was a presentation by Kathy Manley and others about the abuses of preemptive prosecutions in domestic war on Terror, and a presentation by Juan Mendez, the UN rapporteur on Torture, and others about the corrosive effect of torture on governments and society.
Finally, Alberto Mora, General Counsel to the Navy under President Bush, delivered a devastating critique of the disastrous consequences that resulted from President Bush’s decision to use torture: Torture did not provide reliable information; Torture prevented other countries with a sense of national honor from collaborating with us; Torture made it impossible for us to bring court cases against people who might have been terrorists because we came into court with unclean hands; Torture destroyed any chance of peace; Torture forced us to classify information about illegal conduct of government and military leaders making it impossible to discuss the war objectively; Torture forced leaders to lie; Torture is a cancer eating away at our national values, honor and purpose, and until we deal with it openly and honestly and provide accountability to those involved and redress for those injured, we will continue to decline as a nation, aware of our own guilt but unable to discuss it or to reform.
I believe the whole conference was leading up to Mora’s statement, for which he received a standing ovation. Prior to this 3rd conference, there was always the hope that the Senate Torture Report would eventually be issued – that there would be accountability. But since Trump’s election, the Guantanamo Defense Lawyers realized that this was not going to happen – the dishonor would persist and might become permanent. The Defenders also realized that they could not raise the issue within the system – it was their very fellow officers on the prosecution side that were delaying prosecution in order to cover up torture. The only way around this was to adopt Ammar Al-Baluchi’s insight that his lawyers had to go outside the system and enlist the support of civil rights groups. This is why the conference grew larger and more important every year. And after each presentation, the military presenters would say, “Now you know the truth, you have an obligation to go out and tell your friends and neighbors”. They were enlisting us in a battle that had to be won, and that could be won only by mobilizing public support.
At the end of the conference, the military organizers projected a large picture of Ammar Al-Baluchi on the screen, and then presented “Al-Baluchi awards” to people who had worked hard on the conference or his case to get the truth out – not Rumsfeld awards, or Cheney awards, or Bush awards, but Al-Baluchi awards. It was a tribute to prisoner who had done extraordinary things and who had called American’s to return to their true core values – the defense of inalienable rights.