The Daily Outrage

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Guantánamo Litigation as Legal Warfare

Amid a news cycle crowded with reports about Republican fearmongering and the Obama Administration’s bureaucratic paralysis on closing Guantánamo, a local news article last week from Fort Wayne, Indiana, caught my attention.  The website for Wane-TV 15 ran a story about Whitley County Superior Court Judge Douglas Fahl, who also serves as a Major in the Indiana Army National Guard JAG Corps.  Judge Fahl is apparently deploying to Guantánamo in July to “serve on the litigation support team which is responsible for prosecuting the detainees and responding to requests for release from detention.”  Nothing unusual there. In fact, many reserve and national guard officers leave their day jobs and their families to serve for short periods of time in detainee operations at Guantánamo.  What struck me about the story were Judge Fahl’s comments about the detainees and their lawyers, like me. 

According to the article, Judge Fahl noted that “[t]here’s a tremendous amount of political pressure to release the detainees.”  He also reportedly said “GITMO has been described to me as the tip of the spear for legal warfare.”  And apparently referencing his combat experience in Iraq in 2008, he commented: “I’ve seen what these guys are capable of doing on the battlefield.  It’s always difficult to leave my family for a deployment, but I am honored to be chosen to use my legal skills to make sure these dangerous men don’t return to the battlefield to kill American soldiers or innocent civilians.”

I was taken aback.  Judge Fahl apparently does not understand that the remaining 89 detainees are not dangerous, and pose no threat to Americans or anyone else.  Many have been cleared for transfer for many years, which means that every military, intelligence and law enforcement agency with a stake in Guantánamo has determined unanimously that they pose no threat.  It is also doubtful that Judge Fahl encountered a Guantánamo detainee on the battlefield.  According to the government’s own public records, most detainees were not captured on any battlefield, but rather were sold by villagers and local police to US forces for substantial bounties.  And the last detainee to arrive at Guantánamo was reportedly transferred in March 2008 from CIA custody, not from the battlefield in Iraq.  I am also not aware of any reports about former Guantánamo detainees attacking US forces in Iraq.  There is simply nothing to support Judge Fahl’s claim that he knows what “these guys” are capable of on the battlefield.

More fundamentally, how can a military officer who seems intent on keeping detainees – all detainees, apparently – in Guantánamo possibly fulfill the mandate of his commander-in-chief to close the prison by the end of the year?  It makes you wonder whether Judge Fahl is deploying to Guantánamo hoping to do his part to frustrate and delay closure.

As if that were not worrisome enough, Judge Fahl also believes that Guantánamo legal proceedings are “the tip of the spear for legal warfare.”  I remind you that he is a military officer, lawyer, and sitting judge.  Yet, despite at least three U.S. Supreme Court decisions unequivocally establishing the right of detainees to challenge the factual and legal basis for their detention, Judge Fahl seems to think that detainee litigation – including the military commissions he is deploying to Guantánamo to support – are nothing more than lawfare, or the use of law and legal proceedings by detainees and their counsel, including lawyers like me, as a form of asymmetric warfare. 

If Judge Fahl’s swipe at detainees and their counsel sounds familiar, there is a good reason.  Indeed, his remarks caught not only my attention but the attention of the Guantánamo Bar Association, an informal network of about 500 lawyers from across the United States who represent Guantánamo detainees.  (CCR has coordinated the “Gitmo Bar” since our 2004 victory before the Supreme Court in Rasul v. Bush, which first established the right of detainees to challenge the legality of their detention through habeas corpus in federal court.)  We have seen this before.  In 2007, senior defense department official Charles “Cully” Stimson attacked lawyers representing Guantánamo detainees, suggesting that commercial clients of corporate law firms who donate their time to representing these men and boys held for years without charge or trial might want to take their paying work elsewhere.  To the credit of these firms, including my prior law firm, Kramer Levin, they stuck by their detainee clients, and in many cases have continued to represent them for free for more than a decade.  Stimson, however, lost his Pentagon job as a result of his imprudent remarks.

None of this is to say that Judge Fahl should lose his job for voicing his personal views, however craven and ill-informed.  The point is that, after nearly fifteen years of litigating Guantánamo detainee cases, government officials like him come and go, but what never seems to change – despite the evidence – is that the detainees lose.  They continue to be held indefinitely in an offshore prison, nearly all without charge or trial, and are demonized and dehumanized by people who have never met them nor care to meet with them.  And that is why we continue to represent them and challenge the legality of their detention.  We are determined to force the closure of Guantánamo.  If Judge Fahl and others view that as asymmetric warfare, so be it.  We consider it a service to human rights and the rule of law.

Last modified 

April 13, 2016