The War in Court: Inside the Long Fight Against Torture

Author: Lisa Hajjar
Publisher: University of California Press, 2022.  376 pages.
Reviewer: John Parry | September 2023

Lisa Hajjar’s The War in Court is a riveting account of the legal challenges to the George W. Bush administration’s torture policies, with a particularly insightful focus on the military commission proceedings at Guantánamo Bay Naval Base. Hajjar is not, of course, the first person to cover this material, and some readers may wonder why we need this book now, more than 15 years after the worst of the Bush administration’s torture program ended in 2006, in the wake of the Supreme Court’s decision in Hamdan v. Rumsfeld (2006). But as Hajjar makes clear repeatedly and concretely, the “afterlives” of that program continue, with the result that the onerous struggle over accountability and justice for torture is far from over. [1]

Hajjar spends little time on the story of how the United States embarked on a policy of torture, but she stresses the critical fact that the “war on terror” was also a “war for information,” and she takes care to note the relationship between the Bush Administration’s torture policy and its embrace of the unitary executive theory of presidential power. [2] These themes of executive power and coercive control over people and information underscore much of the story of torture after 9/11, and they inform the true focus of Hajjar’s book, which is not the decision to use torture but instead the impacts of that decision.

Throughout the book, Hajjar reminds readers of the profound damage that torture has inflicted on the lives of the men (and boys) who were mistreated by U.S. forces and who still suffer from its trauma. And she emphasizes the dramatic legal consequences of torture and the trauma that it produced: since 9/11, the United States has been developing a domestic law of torture to deal with the numerous issues that a torture policy creates—e.g., legality, access to lawyers, access to court, remedies, rules of evidence, and more. Almost no case law existed on these issues before 2001, but now, as Hajjar describes, numerous doctrines have emerged from the long and contentious litigation about torture.

To describe this litigation, Hajjar weaves together discussions of legal issues and strategies with portraits of torture survivors and their lawyers—this combination makes her book one of the most insightful discussions of these topics. To the extent Hajjar sacrifices anything in terms of scholarly analysis, she more than makes up for it in her focus on specific people who involved themselves in these proceedings, people who deserve recognition for their devotion to human rights and the rule of law. In addition, for readers who are not experts on the specific legal issues associated with torture, Hajjar provides an excellent balance, giving sufficient detail to understand what is at stake without going down overly technical rabbit holes.

The first chapters of The War in Court focus on the litigation that resulted in a series of Supreme Court decisions about detention, habeas corpus, and the status of military commissions. Hajjar deftly weaves together background on, for example, the role of the Center for Constitutional Rights in bringing the claims that resulted in Rasul v. Bush (2004), which held that federal courts have jurisdiction to hear habeas cases brought by people imprisoned seeking to challenge the legality of their detention at Guantánamo Bay. [3] She explains the amount of planning and coordination that goes into major litigation of the kind made necessary by the torture policy. [4] And she highlights the galvanizing effect of that litigation, which convinced hundreds of lawyers to join the litigation over detention, mistreatment, and military commission proceedings at Guantánamo Bay. [5]

As the book continues, Hajjar details the workings of the Combatant Statute Review Tribunals (adopted after Rasul) and particularly the Military Commissions. She acutely describes the ways in which the CSRTs especially, but also the Commissions, amply deserve the label ‘kangaroo courts.’

Many of the people detained at Guantánamo Bay were innocent, but proving that fact was difficult. [6] The CSRTs typically accepted the government’s evidence as credible, and that evidence was often unopposed because the detainees had trouble getting access to witnesses and other exculpatory information, even when they had the assistance of counsel. Ultimately, though, the majority of the people imprisoned at Guantánamo Bay were never prosecuted, despite the fact that many of them remained in custody for years. [7]

While their experience pales in comparison to that of their clients, Hajjar compellingly narrates the enormous difficulties faced by the attorneys who have litigated before the CSRTs and Military Commissions. The scope of these difficulties deepens her indictment of the legal system created for the detainees. First, the attorneys had to gain access to their clients, then they had to gain their trust, which could be fragile and provisional after the treatment and deceptions their clients had endured. [8] Ultimately, though, their attorneys became essential conduits of basic information about the outside world, providing, for example, news about births and deaths in their families. [9] Second, once they were able to establish a working relationship, they faced—and continue to face—enormous obstacles thrown up by the government to keep information away from them or severely limit its use. [10] At one point, government officials even recorded conversations between the lawyers and their clients and initiated investigations into some defense attorneys with the goal of getting them to inform on each other. [11]

Significantly, the government has attempted throughout the legal afterlife of torture to prevent the release or use of information about the program. In part, this effort makes sense. As General Mark Martins, the Chief Prosecutor for the military commissions, stated, “We don’t want something to get out that will aid bad guys still on the run.” [12] But Martins also admitted that the government does not want “something to come out that will prevent accountability,” by which he meant accountability for 9/11: “The people do not forfeit their chance to obtain accountability because the government may have crossed the line.” [13] The defense bar saw it differently, and more clearly. Hajjar quotes one lawyer: “It was becoming clear to us that the purpose of the commissions is to have your cake and eat it too: intelligence gathering and justice. But these two things are incompatible.” [14] Indeed, due process is not built for such machinations. Whatever the legitimate concerns about general release of information, fair judicial proceedings—particularly proceedings that could result in a death sentence—require adequate access to information that may be exculpatory, explanatory, or mitigating.

Hajjar’s discussion of the military commissions themselves is harrowing. She details the proceedings in numerous cases, many of which resulted in plea bargains or convictions. The book’s timeline ends in mid-2022. More than a year later and twenty-two years after 9/11, the most significant cases—involving the 9/11 conspirators and the U.S.S. Cole attack—remain mired in Sisyphean pretrial proceedings. Torture, as Hajjar explains, is the reason. She describes how these proceedings are caught “in a triangulated set of conflicting interests.” [15] One side of the triangle is the defense, which is “fighting for access to classified information about what happened to their clients in CIA custody, insisting on their right to have it because pretrial treatment is legally relevant in any criminal case and, in death penalty cases, heightened due process should apply” (Ibid (emphasis in original)). The second side is the prosecution, which “insists that this trial is about the defendants’ roles in the crimes of 9/11, and that what happened to them afterward is unrelated to their involvement in these events” (Ibid). The fact that a third side even exists is the critical point: “The CIA is the third side of this triangle because it controls the information the defense seeks and the process that guides the prosecution’s preparation of discoverable materials. The Agency has no institutional interest in due process or fair trials, only in maintaining its secrets” (Ibid). The government’s mania for secrecy is so pronounced that the prisoners’ own accounts of their mistreatment have been deemed classified. [16]

Hajjar’s informed narrative is enough to make The War in Court a significant addition to the unfortunate library of torture that expanded in response to the war on terror. But her concluding discussion elevates the importance of her book.

In the wake of their early victories against detention and torture, advocates hoped that American society would mobilize against the torture program and in favor of justice. [17] Hajjar notes several reasons why their hopes were dashed and that, perversely, public support for torture has arguably increased. She notes David Luban’s (2005) discussion of the “liberal ideology of torture,” in which euphemisms for torture are deployed to portray it, not as a violation of law, but instead as a justifiable method for protecting a democratic society beset by emergencies. [18] But Hajjar is skeptical that liberal theory provides the best explanation. Invoking Darius Rejali (2017), she suggests that “people who support the use of torture don’t care that it is ineffective and damaging. For them, it provides one more means to express nationalistic and racialized resentments.” [19]

Hajjar thus presents another of torture’s afterlives: the coarsening of American discourse and a consequent rewriting (or attempted rewriting) of foundational national values. Although the twentieth-century United States often accepted or even promoted torture overseas, “[t]here was no pro-torture constituency [in American politics] in the decades prior to the ‘war on terror’.” [20] Today, that is no longer true. Presidential candidates—for example, all of the 2016 republican candidates—endorse torture and promise to make it part of national security policy. [21] The leading candidate for the 2024 republican nomination (former President Trump) has consistently supported the idea of torture. Another prominent contender (Florida governor Ron DeSantis) served as a JAG officer at Guantanamo Bay Naval Base at a time when mistreatment was rife and yet apparently has never questioned what he saw there. [22]  And although Presidents Obama and Biden have opposed torture, their political priorities have left little room for accountability or remedies. [23]

The Supreme Court cases that restricted detention, torture, and ad hoc military commissions were 5-4 or 6-3 decisions. For all of our talk about the rule of law, we rely on small numbers of people to define its requirements. Would the current, post-Trump Supreme Court have decided these cases the same way, or would it have ended the war in court before it could begin?

Hajjar extracts some hope from what is often a dispiriting narrative. “Against this bleak backdrop, the contributions of hundreds of people who waged the long fight against torture are greater than their specific and limited victories in courts . . . . The lawyers and their allies who waged this fight . . . were—and some remain—engaged in a redemptive project.” [24] At the end of this narrative of litigation, Hajjar thus insists that the fight against torture must ultimately be fought on a stage much broader than law. Here, too, the importance of her choice to highlight the people suffering from and fighting against torture becomes clear. As J. Jeremy Wisnewski has argued, the case against torture must be made over and over again, and it must include arguments that “particulariz[e] human beings in living contexts.” [25] Hajjar has done exactly that in this essential book.

 

References:

David Luban, Liberalism, Torture and the Ticking Bomb, 91 Va. L. Rev. 1425 (2005)

John T. Parry, States of Torture: Debating the Future of Coercive Interrogation, 84 Tenn. L. Rev. 639 (2017)

Darius Rejali, Donald Trump’s Pro-Torture Rhetoric Could Help Bring Abuse to a Neighborhood Near You, L.A. Times (Feb. 19, 2017), https://www.latimes.com/opinion/op-ed/la-oe-rejali-trump-torture-20170219-story.html

Michael Wilner, “‘Very intimate knowledge’: What Ron DeSantis saw while serving at Guantánamo,” Miami Herald, (Mar. 7, 2023), https://www.miamiherald.com/news/politics-government/state-politics/article272722190.html

J. Jeremy Wisnewski, Understanding Torture (2010)

 

John T. Parry is the Associate Dean of Faculty and Edward Brunet Professor of Law at Lewis & Clark Law School.

[1] Lisa Hajjar, The War in Court: Inside the Long Fight against Torture 307 (2022).

[2] Id. at 49-58, 68, 310-11.

[3] Id. at 20-42.

[4] Id. at 38-39.

[5] Id. at 93-95, 117.

[6] Id. at 116-17.

[7] Id. at 264.

[8] Id. at 105-06.

[9] Id. at 117.

[10] Id. at 274-79, 294.

[11] Id. at 276, 281.

[12] Id. at 279.

[13] Id.

[14] Id. at 48.

[15] Id. at 286.

[16] Id. at 315.

[17] Id. at 127.

[18] Id. at 149.

[19] Id. at 309.

[20] John T. Parry, States of Torture: Debating the Future of Coercive Interrogation, 84 Tenn. L. Rev. 639, 664-66 (2017); Id. at 308.

[21] Hajjar, supra note 1 at 307.

[22] Michael Wilner, ‘Very intimate knowledge’: What Ron DeSantis saw while serving at Guantánamo, Miami Herald (Mar. 7, 2023), https://www.miamiherald.com/news/politics-government/state-politics/article272722190.html.

[23] Hajjar, supra note 1 at 217-32.

[24] Id. at 312.

[25] J. Jeremy Wisnewski, Understanding Torture 161 (2010).