In the name of preventing another 9/11, the United States government compromised its legal system by undermining the rule of law, according to Martha Rayner, clinical associate professor of law.
The result was the Guantánamo Bay detention facility, where the vast majority of men have been held for years without charges. Many continue to be imprisoned after being cleared for release by the U.S. military and, in some cases, by federal judges.
In response, Rayner founded the International Justice Clinic at Fordham Law. Working with students, she has fought to bring meaningful legal representation to five clients detained at Guantánamo—two of whom remain in custody.
“You feel as though you’re existing in a world that has very little connection to what you understand to be the rule of law in the United States,” she said.
For example, it took six and a half years for the U.S. Supreme Court to declare that detainees were protected by the writ of habeas corpus, which mandates that prisoners be brought before a court to determine if they are being held lawfully. Before that, their status was determined solely by the Office of the President.
Rayner, who began practicing law as a public defender with the Legal Aid Society before becoming a founding member of the Neighborhood Defender Service of Harlem, called habeas corpus the original human right.
“It’s very basic, this idea that the king, the president, or whoever is in executive power can’t lock someone up and deprive someone of liberty without justifying it before a neutral decision-maker. In our system, that is the independent judiciary,” she said.
“But for years, our government insisted, ‘These men simply do not have any legal rights,’ and fought tenaciously to block judicial review,” she said.
Rayner said that some men at Guantánamo should be charged with war crimes or violations of domestic criminal laws. They should be given fair and open trials and appropriate punishment, if convicted. But in the almost eight years that the Guantánamo facility has existed, only two men have been charged and convicted, both of whom completed their sentences in their native countries and are now free.
One of Rayner’s clients, a Yemeni named Ali Mohammed Nasser Mohammed, illustrates her point. Mohammed, alleged to be a former cook for the Taliban, was captured in Afghanistan, transferred to Guantánamo, cleared for release in January 2005, and then scheduled to be released in May 2006. But because he was erroneously classified as a citizen of Saudi Arabia, where he was born, instead of Yemen, where he lives, he was imprisoned for another 16 months while others were released.
“We were able to obtain some press coverage, and maybe someone in power said, ‘We should do something about this,’” Rayner said. “We’ll never know, though, because no one would communicate with us.”
President Barack Obama signed an executive order in January that mandated Guantánamo’s closure within a year, but Rayner said that his administration may continue to group detainees into three categories established by the Bush administration: those who are approved for release; those who will be charged and prosecuted; and those who cannot be prosecuted because the use of torture has so tainted the evidence. Since they are deemed too dangerous to release, they continue to face indefinite detention without charge or trial—a limbo that Rayner said is inexcusable.
“We have highly talented prosecutors in our civilian criminal justice system, and they can make their case to a jury that these men are guilty of crimes related to terrorism,” she said. “But you have to be willing to live with an acquittal.”
This isn’t an issue for one of Rayner’s remaining clients, a Yemeni citizen who has been cleared of wrongdoing, has received permission to return to Yemen and wants to return, but is still incarcerated.
Even with court intervention, the problem persists. In 29 of the 34 habeas cases that have been heard by the courts, judges have ruled in favor of the detainees. Yet many of these men remain at Guantánamo.
“You work for years to apply the rule of law to these men’s situations, and even when the court pronounces a successful judgment, people continue to languish,” she said.
Some of the blame lies with the courts, Rayner said.
“The courts have not exerted the power that I believe they have, to say to the U.S. government, ‘You must release this person,’” she said.
Although her students understand why Guantánamo is wrong, addressing its deficiencies is more difficult. Fordham is one of a few law schools doing this sort of work, along with Yale, the University of Texas, American University and Seton Hall.
“It’s extremely difficult for students who are trying to learn about the law to understand why it is failing. They want me to answer the question, ‘What should I do?’”
“I tell students who apply to the International Justice Clinic, ‘If you’re not comfortable with uncertainty, this is not the work for you,’” she said. “Still, I think students feel good knowing that they have made an impact on this issue.”
As for the future, Rayner worries that with the deadline to close Guantánamo approaching, President Obama may transfer inmates to a U.S. prison but keep the current legal structure in place, thereby simply creating another Guantánamo.
“Fear is very dangerous, because it distorts our reasoning, and it doesn’t allow us to stop and consider alternatives that might be more productive and effective,” Rayner said. “Instead, fear makes us turn to that which seems easiest at the moment, which in our post-9/11 world has been the use of military force, including the use of widespread indefinite imprisonment.”