The classic crack made at many a cocktail party. Every defense lawyer suffers through the ordeal of offering a dissatisfying response (at least to the tormentor) to this barely concealed insult. I have no intention of dragging out the usual suspects, but rather I want, for a change, to ask the question myself. Not for the perverse enjoyment of it, but because I sincerely want an answer.
It is hard to follow the terrorist “trials” being conducted at Guantanamo because so much of them and the evidence is classified. So at best we get a partial through-the-looking-glass peek at what is going on. From my point of view much of it seems discouraging. Two cases on point.
Mustafa Hawsawi is accused of assisting the 9/11 hijackers by supplying money and travel arrangements. According to the released portion of the Senate Torture Report, Hawsawi was subjected to unauthorized “enhanced interrogation techniques.” (Orwell would have a field day with this government “newspeak.”) His defense lawyer, Walter Ruiz, used the public 524-page portion of the Senate’s 6,200-page report to establish that CIA agents conducted “medically unnecessary rectal exams with excessive force” causing Hawsawi to suffer anal fissures, rectal prolapse and even hemorrhoids.
Ruiz dryly noted that “some would call that sodomy.” In fact the United States government has called it sodomy and a federal crime. In 1997, NYPD officers “rectally abused” Abner Loumia with a broom handle. This event provoked outrage and a march of 7,000 protestors to city hall. The federal government indicted several officers for this crime and the main defendant was sentenced to 30 years in prison. The city settled the civil case by paying Loumia $8.75 million. But in Guantanamo, and by the CIA? Barely a peep.
Ruiz made an unexceptional request that he have access to his client’s secret medical records and be able to consult with a privately retained gastrointestinal expert. Ed Ryan, a former Assistant US Attorney in this district, now on the prosecution team, objected. He argued that if Hawsawi wanted medical treatment, the only place he can get it is from government doctors and prison officials, representatives of the same government that deliberately caused his rectal injures. Ed trumped him with that catch-22.
Ruiz also argued that his client’s prison conditions did not meet the requirements of the Geneva Conventions. Another prosecutor, Clay Trivett, responded that the objection was illegal because Congress in the Military Commissions Act of 2009 barred Guantanamo prisoners from relying on the Geneva Conventions. I can remember watching all the WW2 movies showing the Nazis and Japs laughing when American soldiers begged to be treated in accord with Geneva. Fast forward a few decades and it is our prosecutors who are laughing. Ruiz mentioned that his client Hawsawi weighed 140 pounds at his arrest, but now is 99 pounds. Res ipsa loquitur.
Another peek into the abyss occurred when defendant Abd al Rahim asked a Guantanamo judge for a brain scan. His lawyer, unnamed in the article, claimed he suffered brain damage during his four years in secret CIA black sites where he underwent waterboarding, mock executions, and “rectal rehydration.” I don’t know what rectal hydration or rehydration is but I bet it is not pleasant. A prosecutor, also unnamed, opposed the request because there were no MRI machines in Guantanamo and Congress passed a law forbidding transfer of any Guantanamo inmate to the United States, even for medical care.
By the way, Congress passed this law to thwart President Obama from closing Guantanamo and setting federal trials for these terrorists in the US. These inmates have been incarcerated for 12 years without any end in sight to their “trials.” Yet the Boston terrorist bomber has already been tried and convicted in a federal court without a single problem. Guess who was right.
And so I end where I started. I ask these prosecutors, “How can you represent these people?” Not the defendants but the government torturers. Being a government lawyer does not absolve you from the ethical and moral consequences of your actions.
If I were a religious man I would cite scripture: Jesus said, “By their fruits you shall know them,” and the fruits of the faithful seem more rotten each year.