By Debra Burlingame*
issues surrounding the question of the legal rights of Guantanamo detainees
are both novel and complicated. Conferring full habeas corpus rights
on alien enemy combatants during wartime is something no English or
American court has granted in the 800-year history of Anglo-American
jurisprudence. Today, it is our troops who bear the heaviest burden
in carrying out the will of Congress. Congress owes it to them and to
the American people to consider the full consequences of granting this
level of extraordinary relief to the kind of people who detonate IEDs,
who use suicide vests to target tourists and commuters, and who crash
commercial airliners filled with innocent men, women and children into
laws should not leave us defenseless. I simply refuse to believe that
“rule of law” means that we must rigidly adhere to a particular
line of reasoning when interpreting legal cases-cases which were decided
long before modern warfare-by-suicide against civilians became a terrorist
tactic-and reach the astounding conclusion that unlawful enemy combatants
are entitled to the same due process rights as American citizens. When
Khalid Sheikh Mohammed [KSM] was captured and handed over to the United
States, he reportedly initially told his interrogators,
“I’ll talk to you guys when you take me to New York and I can see
litigation rights to people like KSM would deny us valuable information
about terrorist organizations, and could cause the deaths, not just
of hundreds of people, but of whole populations. Surely being “better
than our enemies” doesn’t mean that we are so morally vain that
we are willing to sacrifice our children and grandchildren to prove
Just Shut It Down?
when the Detainee Treatment Act of 2005 was being publicly debated,
New York Times columnist Thomas Friedman published a blunt column about
Guantanamo entitled, “Just Shut It Down.” Referring to it as a “P.O.W.
camp,” he said that it has become so embarrassing to America’s standing
abroad that we should just “shut it down and then plow it under.”
Friedman’s sentiments have been widely echoed in the national media
and on Capitol Hill. Guantanamo, according to these voices, has become
a national disgrace that is seriously harming our reputation as a beacon
of freedom and justice throughout the world, particularly in the Muslim
world. Whether one sincerely believes that failing to confer Constitutional
rights on unlawful enemy combatants will destroy America’s moral fiber
or whether one believes that Guantanamo is now so irrevocably associated
with allegations of “prisoner abuse” that keeping it open and rehabilitating
its reputation is no longer an option, the reality is that radical Islamists
have won another important propaganda war, the first being the highly
damaging and deeply heartbreaking Abu Ghraib.
is in the process of debating where these detainees should go if Guantanamo
is shut down. It is remarkable how easy it is for members of Congress
to recommend sending these dangerous men who are the subject of so much
controversy here and so much propaganda in the Muslim world, to the
states of other members of Congress. They, in turn, aren’t terribly
happy at the prospect. Ninety-seven Senators voted in favor of a resolution
that the detainees should not be brought to the United States. The resolution
is not binding. Let’s ask the American people whether they would like
to have these men and their angry supporters brought to their communities.
There is talk of sending them to Bagram air base in Afghanistan, where
other detainees are being kept and where U.S. jurisdiction is not a
problem. But that is what was said about Guantanamo. Today, the Center
for Constitutional Rights (CCR), which filed the original detainee cases
in February of 2002, has already filed habeas corpus petitions on behalf
of 25 detainees in Bagram.
will not relent until every jihadi in U.S. custody is either released
or brought into the federal system. They have set their sights on the
so-called “secret prisons” in which they believe the U.S. or its
allies have detained jihadis elsewhere in unknown places in the world.
Mr. Friedman of the New York Times believes that shutting down Guantanamo
will plow under all the problematic public relations that Guantanamo
has caused for this country, he has not been paying attention. Mr. Friedman
has said, and I believe he is sincere, that he wants the President of
the United States to just shut Guantanamo down because he believes that
keeping it open is causing and will cause more Americans to die. He
wants Guantanamo shut down because, he says, he wants to win the war
Back On The
even as some of these detainees are rendered back to their home countries
and admit, even boast, that they went to Afghanistan to join the global
jihad, even as dozens have returned to the battlefield to kill again-the
lawyers for detainees continue to argue that these men are innocent
victims. Perhaps Mr. Friedman and this committee should consider that
it is the propaganda being fed to the world press that is giving this
country a black eye, and if that is so, what makes him, and this Congress,
actually believe that the bad press will stop if detainees are moved
from one geographical location to another?
an inflammatory image hits the Internet there is no reeling it back
in. Today, the images of newly-arrived, hooded, and shackled Guantanamo
detainees at Camp X-Ray wearing orange jumpsuits accompanies countless
stories about torture and detainees’ rights. They no longer bother
with the word “alleged.” But Camp X-Ray was shut down years ago,
and detainees don’t wear orange jumpsuits. Detainees who do not engage
in violence or break the rules move freely about in recreational areas.
But the hoods and the jumpsuits are just better copy, better TV. When
Newsweek magazine ran a false story about Guantanamo interrogators desecrating
a Koran, riots broke out in Jalalabad, Afghanistan and elsewhere in
the Muslim world, resulting in the deaths of 15 people.
this high-speed-communications world, the Bush Administration’s attempts
to cast preventative detention and status review protocols at Guantanamo
as a necessary and adequate substitute for judicial review in the federal
courts have been drowned out by an effective public relations campaign
waged on behalf of enemies of this country, paid for by a government
that purports to be our ally, and enabled by the lawyers who have perpetrated
a fraud on the public while casting themselves as patriotic heroes and
champions of the Constitution.
January of this year (2007), a controversy arose over the fact that
hundreds of Guantanamo lawyers, dozens of whom work for prestigious
“blue chip” firms, were criticized for volunteering their considerable
legal skills on behalf of Guantanamo detainees. An official working
for the Department of Defense Office of Detainee Affairs suggested that
corporations who retain these high-priced firms as outside counsel might
be shocked to learn that their own fees are subsidizing pro bono work
on behalf of terrorists. “I think, quite honestly,” said the official
in an interview, “when corporate CEOs see that those firms are representing
the very terrorists who hit their bottom line back in 2001, those CEOs
are going to make those law firms choose between representing terrorists
or representing reputable firms.”
reaction to these comments was swift and explosive. Members of the “Guantanamo
Bar”-which was said to number between 400 and 500-expressed their
outrage in op-ed pieces, on Internet sites, and in press releases all
across the nation. Major newspapers such as the New York Times and the
Washington Post editorialized on the subject, denouncing the comments
and calling for the DOD official to be disciplined or fired.
even called for the DOD official, a former prosecutor, to be disbarred
on charges that he was trying to exert pressure on corporate law firms
to drop their pro bono detainee clients. Some of the corporate clients
came forward to defend their private law firms and their comments were
published in an article in the Legal Times Online on January 22, 2007.
Ratner, head of the Center for Constitutional Rights (CCR), told the
New York Times that none of the 500 lawyers associated with Guantanamo
detainee representation are being paid. The article reported that Tom
Wilner, from the Washington, D.C. firm of Shearman & Sterling and
the lead attorney who joined the CCR in filing the first Guantanamo
case in 2002, Rasul v. Bush, said that his firm received money from
the families of the 12 Kuwaiti detainees but all of it was donated to
charities related to the September 11 attacks.
is lawyerly wording. Perhaps Shearman did
“receive money from detainee families,” but the government of Kuwait
has acknowledged that they are paying all of the detainees’ and their
families’ legal fees, which were reported to run in the millions of
dollars. According to one news report in 2004, the fees had reached
at least two million dollars. This raises several questions. Why would
Shearman hide that information? Which, if any
“9/11 charities” received donations and how much were they? Mr.
Wilner isn’t saying. He gave an interview in which he dodged questions
about Shearman’s pro bono billable hours.
addition to its legal services, the firm registered as an agent of a
foreign principal under the Foreign Agents Registration Act of 1938
(FARA) as well as the Lobbying Disclosure Act of 1995 (LDA) to press
the Kuwaiti detainees’ cause on Capitol Hill. Shearman reported $749,980
in lobbying fees under FARA for one six-month period in 2005 and another
$200,000 under the LDA over a one-year period between 2005 and 2006.
Those are the precise time periods when Congress was engaged in intense
debates over the Detainee Treatment Act and the Military Commissions
Act, legislation that the government of Kuwait and Shearman & Sterling
hoped would pave the way for shutting down Guantanamo permanently and
setting their clients free.
subsequently reported another $300,000 dollars in lobbying fees under
Big Law Firms
& Sterling isn’t the only law firm cashing in. Arnold & Porter,
another D.C. firm, also reported $380,000 in lobbying fees on behalf
of the “International Counsel Bureau”-which is nothing more than
a P.O. Box in Safat, Kuwait-and “the Kuwaiti Detainees Committee.”
Their FARA registration indicates that they “contacted members of
Congress, congressional staffers, and media representatives, in an effort
to obtain due process for the Kuwaiti detainees in U.S. custody at Guantanamo
Bay.” These lobbying efforts appear to be having a tremendous effect.
The PR Campaign
after the first Supreme Court victory in Rasul, Shearman said that its
representation of detainees had come to a close. The firm of Pillsbury
Winthrop Shaw Pittman has picked up where Shearman left off, taking
up the cause of the only remaining four Kuwaiti enemy combatants still
in custody of the original 12.
brought in high-stakes media guru Richard Levick, the head of Levick
Strategic Communications to change public perception about the Kuwaiti
12. Mr. Levick, a former attorney whose Washington, D.C.-based “crisis
PR” firm has carved out a niche in litigation-related issues, has
represented clients as varied as Rosie O’Donnell, Napster, and the
Roman Catholic Church. His firm is also registered under FARA as an
agent of a foreign principal for the “Kuwaiti Detainees Committee,”
reporting $774,000 in fees in a one-year period. As of June 2007, Levick
Strategic Communcations has reported a total of $1.8 million in fees
for their PR campaign on behalf of the detainees.
the U.S Supreme Court heard the first consolidated enemy combatant case,
the PR campaign went into high gear, Mr. Levick wrote, to “turn the
numerous published articles and interviews, Mr. Levick has laid out
the essence of the entire Kuwaiti PR campaign. The strategy sought to
accomplish two things: put a sympathetic
“human face” on the detainees and convince the public that it had
a stake in their plight. In other words, the militant Islamists who
traveled to Afghanistan to become a part of al-Qaeda’s jihad on America
had to be reinvented as innocent charity workers swept up in the war
Montreal-based marketing firm was hired to create the families’ full-service
website which fed propaganda-unsourced, unrebutted and uninvestigated
by the media-aimed at the media all over the world. The website was
“optimized,” a term Internet marketers use, meaning that the company
paid search engines to direct researchers to their site. Put in the
words “Guantanamo detainees” or “Kuwaiti detainees” and their
website will pop up on the first page, if not at the top of the list.
Creating what Mr. Levick calls a “war of pictures,” the site is
replete with images meant to appeal to Americans: smiling Kuwaiti families
wearing T-shirts and baseball caps, cute children passing out yellow
the Rasul decision, the PR momentum picked up speed and the Supreme
Court became, in Mr. Levick’s words, their
“main weapon,” a “cudgel” that forced more attention in what
he calls the traditional “liberal” press. Dozens of op-eds by Mr.
Wilner and the family group leader (described as a U.S.-trained former
Kuwaiti Air Force pilot who cherishes the memory of drinking Coca Cola)
were aimed at the public and Congress.
Levick maintains that a year and a half after they began the campaign,
their PR outreach produced literally thousands of news placements and
that, eventually, a majority of the top 100 newspapers were editorializing
on the detainees’ behalf.
that judges can be influenced by aggressive PR campaigns, Mr. Levick
points to rulings in the detainee cases which openly cite news stories
that resulted from his team’s media outreach.
& Sterling lawyers aren’t hucksters crassly promoting a cheap
product; they are sworn officers of the court volunteering to represent
alien enemy combatants in a time of war, interjecting themselves in
cases that affect how American soldiers on the battlefield do their
Ratner and the lawyers in the Gitmo bar have expressly stated that the
habeas corpus lawsuits are a tactic to prevent
the U.S. military from doing its job. He has bragged that
“The litigation is brutal [for the United States] . . . You can’t
run an interrogation . . . with attorneys.” Of course, that is the
objective of the CCR, to stop the interrogations altogether, something
they boast that they have achieved.
do not think Mr. Ratner and his colleagues appreciate the importance
of these interrogations. After listening to month after month of testimony
in the 9/11 Commission hearings from a long list of members in the U.S.
intelligence community, it became patently clear that al Qaeda and other
terrorist organizations are terribly difficult to infiltrate-covert
operations take years of patient cultivation. One of the only effective
ways to get the kind of quick information necessary to stop terrorist
operations today is to capture the enemy and drain him of information.
may never know how many of the hundreds of repatriated detainees are
back in action, fighting the U.S. or our allies thanks to the efforts
of the Guantanamo Bay Bar. Approximately 30 former detainees have been
confirmed as having returned to the battlefield, 12 of them killed by
U.S. forces. Of the eight detainees who were rendered back to Kuwait
for review of their cases, all were acquitted in criminal proceedings,
including Nijer Naser al-Mutairi, who has given press interviews admitting
that he was shot in the November 2001 uprising at Qala-I-Jangi.
Stopping The Bad Press
the thousands of media and VIP tours at Gitmo, despite the fact that
vast improvements have been made since the detention center opened in
January of 2002, the media continues to depict the hooded, goggled,
orange jump-suited detainees shackled to the floor with their hands
behind their backs. That is the enduring image of Gitmo. Despite the
fact that Muslims themselves tell us that Islam forbids suicide, and
that only a committed Islamist would take his own life, the tales of
suicide due to despair (as opposed to strategic aims) continue to be
broadcast. What makes Congress think that the suicide attempts and the
hunger strikes will end if these men are transferred elsewhere? Why
should we believe that the slick, well-financed PR campaigns against
the U.S. will stop once Guantanamo is shut down?
makes Congress think that if the detainees are transferred elsewhere, this kind of anti-American
propagandizing will stop?
Mitch McConnell introduced an amendment (No. 2351) that passed the Senate
on July 19, 2007, declaring that it is better for the safety and the
security of the American people that the terrorists at Guantanamo Bay
are NOT moved into American communities.
asked, “…does bringing al Qaeda to America constitute the best way
to protect the American people? I myself am heartened that 528 miles
of ocean separates these dangerous men from the United States.”
amendment passed by a vote of 94-3.
Hillary Clinton voted for it. Senator Barack Obama was absent for the
three Senators against it were Robert Byrd (West Virginia), Patrick
Leahy (Vermont) and Bernie Sanders (Vermont).
Tom Harkin introduced a bill to close Guantanamo Bay.
a former attorney, is co-founder of 9/11 Families for a Safe & Strong
America and the sister of Capt. Charles F.
“Chic” Burlingame, III, pilot of American Airlines flight
77 which was hijacked and crashed at the Pentagon on September 11, 2001. This article
is an edited version of her December 11, 2007 testimony before the U.S.
Senate Judiciary Committee Subcommittee on Terrorism, Technology and