Sunday, November 27, 2016

You Love The Law Too Much by Martha Rayner

When I arrived at GTMO a week after Obama’s inauguration I did not anticipate the many ways in which he would continue on the same course as the Bush administration. Most disheartening to me and my client was the Obama administration’s  vehement stand against transparency. The Bush administration’s heavy redactions of critical information that resulted in Dark Pages would be surpassed by the Obama administration’s terribly effective efforts to use the law to hide the truth.

Upon my return from the wrenching interview with my client, I demanded the records of his secret detention and torture* from the Obama administration, including video footage of my client I believed might exist. Obama’s lawyers first responded by engaging in the pretense that they only relevant records were those involving U.S. custody, which meant when my client surfaced from dark (CIA) detention and became an ‘official” prisoner of the U.S. military, - whatever came before was not deemed ‘U.S. custody.” When I asked the habeas judge to order the administration to disclose records of detention that preceded military detention, Obama’s lawyers would neither confirm nor deny  such imprisonment and treatment had taken place and thus would neither confirm nor deny that such records existed.

The judge avoided having to contend with the messiness and toxicity that records of torture would inject into the legal proceedings he was striving to keep focused and narrow. He simply decided that the records of imprisonment and abusive and inhuman treatment were not relevant because, in light of Obama’s refusal to refute my client’s facts of torture, he would, as a legal matter, deem the torture to have taken place. This legal fix appeared to serve everyone’s interest. It certainly served the CIA’s interest by keeping its conduct secret. It ostensibly served my client’s interests by prohibiting  the government from contesting the fact that my client had been tortured. But this was directly in conflict with my client’s interest. He had an aching need for the U.S. to own up what it had done to him. He was, counterintuitively, forgiving of the CIA’s cruel trespasses on his health and dignity. What gnawed ay him was that the United States’ refusal to own up to what it had done. The Bush administration’s contention, to this day, that it did not engage in torture tears at my client. The Obama administration is complicit in its silence and strenuous efforts to stave off investigation and disclosure of our country’s crimes. Since he emerged from secret imprisonment into military custody everyone – military interrogators, FBI interrogators, officials in charge, guards and medical personnel- pretend that it did not happen. It has exacerbated my client’s trauma of torture to have it erased before his eyes.

This is the cruelty of the law – it is often not interested in what may matter most; relevancy looks  only to what matters to the law. The law permitted the United State’s government to hide the shameful and criminal details of its unlawfulness. The government would not disclose its records because the records would confirm my client’s memories and reveal more. For my client, the result of this legal wrangling left him stunned. It had the impact of Orwellian newspeak: if we do not speak of it, it did not happen. He could speak of it, but no one would listen – no one cared.

The fact is my client did not know all the facts of his treatment and torture. His ability to remember and recount was compromised by the very treatment imposed on him. Cruel treatment, sleep deprivation, methods designed to cripple his mind, and the use of unidentified drugs all impacted his memory. He knew the pain and damage it had caused him, but he did not know how even what may have been experienced by him as benign conduct was designed to undermine his will o and cause him psychological damage.

I anticipated much better from the Obama administration since another executive order, issued just months after the inauguration, promised that the administration would “operate with an unprecedented level of openness.” But it got worse. Further litigation persuaded the judger that a narrow category of information from the period of Mr. Al-Kazimi’s secret imprisonment was “relevant”- his medical records – and should be provided to me. Rather than comply with the judges orders, Obama’s lawyers filed a document with a judge that I have never been permitted to read, despite having the appropriate security clearance to do so. From what I can piece together from the judge’s subsequent decision, which was eventually made public in a heavily redacted form, it appears that the Obama administration declared that our nation would be put at risk if my client’s medical records were disclosed to me –just me, not the public – me, a licensed lawyer, law professor, and a person deemed capable by the U.S. government to maintain the secrecy of classified and top secret government documents. Why, despite an elaborate system in place to facilitate habeas counsel access to classified information, was this specific and narrow set of information utterly off-limits?

And why were medical records – information about an individual’s health and medical treatment- deemed “classified” in the first place? The president controls the definition and designation of classified information. Under current executive orders, classified information must implicate one of several national security-related topics, such as military plans, foreign government information, and intelligence activities, and its “unauthorized disclosure” could “reasonably be expected to cause exceptionally  grave damage or serious damage to national security.” Therefore, my client’s medical records were deemed classified because apparently the “originating source” of the records determined that the contents [placed our nation at risk.

What could be in those medical records such that disclosure, to a security-cleared lawyer, risks causing such harm to our country’s security? It was chilling when Obama’s lawyers told me the records would never be disclosed to me, and they never have been.

My client once told me that I love the law too much. He did not say that to criticize me, but to help me understand that he needed refuge from the law. The process of attempting top obtain, from “the law” some semblance of stability and reasonable prediction of the future was harming my client- serving only to compound his fear and disorientation. The law’s promise to bring clarity, resolution, some semblance of predictability, and accountability failed – for him, there is no law. His “legal status” makes no sense, he is ostensibly detainable until the end of hostilities, but hundreds of others have gone home despite the government’s claim of continued hostilities. The Obama administration designated my client for prosecution, but no prosecutor has brought charges against him. Obama claims he intends top “close GTMO” before he leaves office, but his plan is to relocate GTMO to U.S. soil. He hopes to claim closure in hope of burnishing his legacy, eliminating GTMO as a “recruiting tool” and reducing the astronomical cost of imprisonment at this offshore military base,” but Obama intends to continue imprisonment without trial indefinitely and dump the problem on the next administration just as Bush did to him. For my client, the “rule of law” permits the U.S. to hide its crimes and it permits the U.S. to take away liberty without a trial for a wholly undefined length of time. There is, for my client, no law – when he will be released, who will decide it, and under what criteria is utterly unknown.

*including: confinement in a  dark cell the size of a grave, prolonged shackling, nudity with cold air blastings, beatings and sexual abuse and molestation, suspended by his arms for long periods, plunged in freezing cold water, dragged across floors, head bangings, sensory deprivation, bombardment with deafening music, forced to kneel in a position of subjugation, drugging, continuous threats by guards with dogs, sticks and rifles, trussings like an animal, diapering, blind-folding, wrapped in tape and transported to places  they knew not where. Not registered with the Red Cross, presented with no charges and given no lawyer.

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