Abstract
Tomsky explores the role of attorneys for detainees at the US Guantánamo Bay Naval Base as proxy witnesses represented in the edited collection The Guantánamo Lawyers: Inside a Prison Outside the Law (2009). Her analysis shows how the lawyers frame their own and their clients’ stories with broader questions of international jurisprudence and the search for justice, referencing the centuries-old habeas legal tradition in order to depoliticize and legitimate their contemporary arguments. Tomsky argues that, by addressing readers as citizens through a moral appeal to the principles of law and justice, the lawyers, perhaps surprisingly, reassert US leadership in human rights causes, while also bearing witness to and providing a moral and legal critique of the conditions of Guantánamo detainees.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
In his anthology, Falkoff writes: “many of the detainees’ poems were destroyed or confiscated before they could be shared with the authors’ lawyers. The military, for instance, confiscated nearly all twenty-five thousand lines of poetry composed by Shaikh Abdurraheem Muslim Dost” (Poems, 4). Additionally, most poems cleared by the Pentagon were English translations only, since the “original Arabic or Pashto versions represent[ed] an enhanced security risk” (ibid., 5).
- 2.
Anicée Van Engeland, Civilian or Combatant? A Challenge for the Twenty-First Century (Oxford: Oxford University Press, 2009), 121.
- 3.
Donald Rumsfeld has described the prisoners as the “worst of the worst” (Mark P. Denbeaux and Jonathan Hafetz, eds. The Guantánamo Lawyers: Inside a Prison Outside the Law (New York: New York University Press, 2009), 167, 311); George W. Bush used the phrase “bad men” about the Guantánamo prisoners in a 2003 press conference.
- 4.
See Barbara Harlow, who provides a detailed review of the “ever-expanding Guantánamo bibliography […] of Guantánamo personnel, the camp’s prisoners, their comings and (for some, at least) goings, their stories (life stories) that prevailing US policy has persistently, consistently, sought to suppress” (“‘Extraordinary Renditions’: Tales of Guantánamo, a Review Article,” Race & Class 52, no. 4 [2011]: 2).
- 5.
Marc D. Falkoff , “Conspiracy to Commit Poetry: Empathetic Lawyering at Guantánamo Bay,” Seattle Journal for Social Justice 6, no. 1 (2007), 5.
- 6.
Fred Halliday, Shocked and Awed: How the War on Terror and Jihad Have Changed the English Language (London: Tauris, 2010), xii.
- 7.
Scott Allen et al., Leave No Marks: Enhanced Interrogation Techniques and the Risk of Criminality (Washington, DC: Physicians for Human Rights & Human Rights First, 2007), 2.
- 8.
Marc D. Falkoff , “This Is to Whom It May Concern: A Guantánamo Narrative,” DePaul Journal of Social Justice 1, no. 2 (Spring 2008), 170.
- 9.
Ibid., 171.
- 10.
Denbeaux and Hafetz , Guantánamo, 19. Many of these lawyers filed habeas appeals on behalf of their as-yet-unknown Guantánamo prisoners, whom they had not yet met. This posed specific challenges, not least getting the information about their names (from a variety of sources, including charities, non-governmental organizations, the media, families, etc.) and then having to obtain consent from their clients in a “closed” site that was not accessible without a high level of security clearance.
- 11.
Julie Rak, Boom! Manufacturing Memoir for the Popular Market (Waterloo: Wilfrid Laurier Press, 2013), 8–14. For more details of the “memoir boom,” see also Leigh Gilmore, “Limit-Cases: Trauma, Self-Representation, and the Jurisdictions of Identity,” Biography 24, no. 1 (2001) 128; Kay Schaffer and Sidonie Smith , Human Rights and Narrated Lives: The Ethics of Recognition (New York: Palgrave Macmillan, 2004), 13–20.
- 12.
Schaffer and Smith , Human Rights, 31.
- 13.
Schaffer and Smith, “Venues of Storytelling: The Circulation of Testimony in Human Rights Campaigns,” Life Writing 1, no. 2 (2004), 4.
- 14.
Schaffer and Smith , Human Rights, 5.
- 15.
Gillian Whitlock, Soft Weapons: Autobiography in Transit (Chicago: University of Chicago Press, 2006), 3. Whitlock also cautions that these narratives can be used to uphold propaganda and so are complicit in the “careful manipulation of opinion and emotion in the public sphere and a management of information in the engineering of consent” (3).
- 16.
Joseph S. Nye, “Soft Power,” Foreign Policy 80 (Autumn 1990): 153–71.
- 17.
Ibid.
- 18.
Ibid. In contrast, Whitlock notes how life narratives produce a rhetoric of intimacy and “peaceful coexistence” (172), or empathy, particularly through “an exotic engagement with the Arab world” (95).
- 19.
In his memoir, Stafford Smith estimates that the Guantánamo Bar consists of “almost five hundred lawyers” (Bad Men, ix). It is probable that this number has since increased.
- 20.
Denbeaux and Hafetz , Guantánamo, 2.
- 21.
For example, see Cucullu, Inside Guantánamo: a prison memoir about Cucullu’s experience as a guard, which reads like an inversion of the prisoners’ testimonies .
- 22.
Clive Stafford Smith, Bad Men: Guantánamo and the Secret Prisons (London: Weidenfeld & Nicolson, 2007), 172–74. Stafford Smith calls these “propaganda tours” (172).
- 23.
Jennifer Caseldine-Bracht, “Security, Civil Liberties and Human Rights: Finding a Balance,” in Guantánamo Bay and the Judicial-Moral Treatment of the Other, ed. Clark Butler(est Lafayette, IN: Purdue University Press, 2007), 61.
- 24.
Perhaps for the reason of deflecting accusations of partisanship, the lawyers in Denbeaux and Hafetz’s anthology almost uniformly refrain from describing the Guantánamo inmates as “prisoners,” and instead elect for the less politicized (Bush euphemism) “detainee.” I should also add that the Guantánamo lawyers too are subject to security clearance, monitoring, and censorship by the Pentagon. Denbeaux and Hafetz include a section in their anthology on this process: “Barriers to Representation” details the classification of the lawyers’ meeting notes and client communications at Guantánamo. The material is not allowed to leave the prison; it is reviewed and, if approved, is sent on to a “secure facility” in Florida or in Washington, DC, where the lawyer has to go to access his or her notes, which are often redacted (Guantánamo, 109–30).
- 25.
Schaffer and Smith , Human Rights, 36.
- 26.
Jonathan Hafetz, Habeas Corpus After 9/11: Confronting America’s New Global Detention System (New York: New York University Press, 2011), 6.
- 27.
Ibid., 83.
- 28.
Anne McClintock, “Paranoid Empire: Specters from Guantánamo and Abu Ghraib,” Small Axe 13, no. 1 (2009), 51.
- 29.
Military commissions were established at Guantánamo in November 2001; however, even military lawyers have called these commissions “rigged” (Denbeaux and Hafetz , Guantánamo, 173). Prisoners could only be defended by military-appointed defense council, the commissions used torture testimony as evidence , and the charges were often based on classified information (which was denied to both the prisoner and his lawyer).
- 30.
Yet this layer of mediation is further complication by the fact that most Guantánamo prisoners do not speak English. Denbeaux and Hafetz’s anthology speaks to the importance of interpreters by including a subsection about their role (Guantánamo, 103–108).
- 31.
Falkoff , “Conspiracy,” 6.
- 32.
Whitlock , Soft Weapons, 56.
- 33.
Whitlock also uses the phrase “soft weapons” to call attention to its ambivalence: the “double-edged nature” of testimonial life narratives that, while poignant and powerful in their representation of oppression, “can be harnessed by forces of commercialization and consumerism in terms of the exotic appeal of cultural difference” (56).
- 34.
Falkoff, Poems, 7.
- 35.
Stafford Smith , Bad Men, x.
- 36.
Falkoff , “Conspiracy,” 11.
- 37.
Ibid., 11.
- 38.
Denbeaux and Hafetz, Guantánamo, 42, 137.
- 39.
Falkoff , “Conspiracy,” 11–12.
- 40.
Denbeaux and Hafetz , Guantánamo, 136.
- 41.
Ibid., 33.
- 42.
As one lawyer notes, the “fight for habeas has been as much a political struggle as a legal one, as the Republican-controlled Congress tried not once but twice to overturn the Supreme Court’s decisions and strip federal judges of jurisdiction over the detainees’ cases” (ibid., 200). Many lawyers received hate mail and death threats (ibid., 31). This vilification was prompted by Elizabeth Cheney’s 2010 advert campaign, “Keep America Safe,” against the “Al-Qaeda Seven,” members of the Guantánamo Bar (Laurel E. Fletcher, Alexis Kelly, and Zulaikha Aziz, “Defending the Rule of Law: Reconceptualizing Guantánamo Habeas Attorneys,” Connecticut Law Review 44, no. 3 [February 2012]: 624–26).
- 43.
Falkoff , “This Is to Whom,” 173. One lawyer, Joshua Colangelo-Bryan, saves his client’s life when, literally minutes after meeting with his client, he walks into the cell and finds him hanging by a makeshift noose, with his “body and face […] covered in blood” (Denbeaux and Hafetz, Guantánamo, 285). After “months [… and] a fair amount of wrangling,” Colangelo-Bryan receives the declassified suicide note, which is personally addressed to him (ibid., 287).
- 44.
Denbeaux and Hafetz , Guantánamo, 35.
- 45.
David J. R. Frakt, “Lawfare and Counterlawfare: The Demonization of the Gitmo Bar and Other Legal Strategies in the War on Terror,” Case Western Reserve Journal of International Law 43, no. 1/2 (2011), 338.
- 46.
Benjamin Wittes, “Presumed Innocent?” The New Republic, March 24, 2010.
- 47.
Denbeaux and Hafetz , Guantánamo, 5.
- 48.
Joseph R. Slaughter, Human Rights, Inc.: The World Novel, Narrative Form, and International Law (New York: Fordham University Press, 2007), xiv.
- 49.
Stafford Smith , Bad Men, 35, 41.
- 50.
Denbeaux and Hafetz , Guantánamo, 120.
- 51.
There was also an Australian, a Canadian, and a Somali held at Guantánamo. US citizens accused of terrorism—John Walker Lindh and Jose Padilla—were not held in the Cuban prison.
- 52.
Denbeaux and Hafetz , Guantánamo, 57, 70.
- 53.
Ibid., 99, 81, 159, 275.
- 54.
Julia Kristeva, Powers of Horror: An Essay on Abjection, trans. Leon S. Roudiez (New York: Columbia University Press, 1982), 12, 2.
- 55.
Denbeaux and Hafetz , Guantánamo, 236, 240, 253.
- 56.
Ibid., 264.
- 57.
A number of the attorneys are haunted by what they see and experience in Guantánamo (ibid., 145, 198).
- 58.
Ibid., 26, 27.
- 59.
Ibid., 279.
- 60.
Ibid., 25.
- 61.
Ibid., 25.
- 62.
Ibid., 19.
- 63.
Elsewhere, this mobilization is described as “rule of law lawyering” (Fletcher et al., “Defending,” 647).
- 64.
Denbeaux and Hafetz , Guantánamo, 5.
- 65.
Ibid., 239.
- 66.
Ibid., 5.
- 67.
Ibid., 49.
- 68.
Ibid., 148.
- 69.
Ibid., 80.
- 70.
Ibid., 24. Indeed, there was concern that Guantánamo advocacy might represent a politically partisan cause. For instance, one lawyer is initially suspicious, thinking that the Guantánamo Bar would be a group “of hippie civil rights lawyers out of the 1960s,” but is proud to see that the attorneys also come from “large, national, conservative law firms” (ibid., 19).
- 71.
Ibid., 39.
- 72.
I am using melodrama broadly here, though I draw on Peter Brooks’ pertinent explication of the term as “the indulgence of strong emotionalism; moral polarization […] reward of virtue […] the pleasures of self-pity,” as well as “the experience of wholeness” (11–12). Compelling melodrama, according to Brooks, is a concept that points to “stark ethical conflict” (12).
- 73.
Denbeaux and Hafetz , Guantánamo, 19.
- 74.
A similar patriotic sentiment is voiced in Rukhsana Mahvish Khan’s collection of Guantánamo prisoner testimonies (My Guantánamo Diary: The Detainees and the Stories They Told Me [New York: Public Affairs, 2008]). A US-born citizen and student lawyer, Khan espouses the rule of law, but imbues it as inseparable from “the beliefs upon which the United States of America was founded” (xi). In particular, Khan views these beliefs as integral to the American Dream. She emphasizes how her parents, immigrants from Afghanistan, have come to the United States precisely “so that their children could grow up with all those rights and with the freedoms that exist here for everyone, no matter a person’s background” (2).
- 75.
Ibid., 23.
- 76.
Ibid., 19, 27, 267, 37.
- 77.
Ibid., 310.
- 78.
Ibid., 192.
- 79.
Friedrich Nietzsche, “On the Advantage and Disadvantage of History for Life,” 1874, trans. Peter Preuss (Indianapolis, IN: Hackett Publishing Company, 1980), 9; Denbeaux and Hafetz , Guantánamo, 197; the lawyers also suggest the Bush administration is outright disobeying the law (310).
- 80.
Allen Feldman, “On the Actuarial Gaze: From 9/11 to Abu Ghraib,” Cultural Studies 19, no. 2 (2005), 219.
- 81.
Slaughter, Human Rights, Inc., 253.
- 82.
Nye , “Soft Power,” 170.
- 83.
Ibid., 167.
- 84.
Nye, “The Information Revolution and Power,” Current History 113, no. 759 (2014): 19–22.
- 85.
Nye opens his essay with his assertion that if “the most powerful country fails to lead” there would be severe “consequences for international stability” (“Soft Power,” 153). In his 2014 essay, Nye suggests that, given the economic rise of China, soft power can enhance global stability and cooperation between the United States and China.
- 86.
A small part of the anthology also calls attention to Guantánamo as part of a global yet secretive prison network. I refer here to the infamous Central Intelligence Agency (CIA) “black sites,” the secret detention centers where abducted prisoners are tortured and interrogated (Denbeaux and Hafetz , Guantánamo, 379–98).
- 87.
Bob Kemper, “Bush’s Support Fades as Nation Moves On,” Chicago Tribune, September 10, 2002.
- 88.
Denbeaux and Hafetz , Guantánamo, 37.
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2018 The Author(s)
About this chapter
Cite this chapter
Tomsky, T. (2018). Legal Appeal: Habeas Lawyers Narrate Guantánamo Life. In: Moore, A., Swanson, E. (eds) Witnessing Torture. Palgrave Studies in Life Writing. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-319-74965-5_13
Download citation
DOI: https://doi.org/10.1007/978-3-319-74965-5_13
Published:
Publisher Name: Palgrave Macmillan, Cham
Print ISBN: 978-3-319-74964-8
Online ISBN: 978-3-319-74965-5
eBook Packages: Literature, Cultural and Media StudiesLiterature, Cultural and Media Studies (R0)