After 9/11: Guantánamo and the mobilization of lawyers

• Date: 22 February 2011
• DOI: https://doi.org/10.1108/S1059-4337(2011)0000054011
• Published date: 22 February 2011
• Pages: 213-259
• Author: Devyani Prabhat

AFTER 9/11: GUANTA

´NAMO AND

THE MOBILIZATION OF LAWYERS

Devyani Prabhat

ABSTRACT

‘‘Guanta

´namo lawyers’’ are a variegated group of lawyers from diverse

practice settings, backgrounds, and beliefs. Drawing from interview and

archival data, this chapter explores why these lawyers have mobilized to

work on Guanta

´namo matters. What processes engender ‘‘heterogeneous

mobilization’’ (i.e., mobilization from different practice settings, and

diverse professional, as well as political backgrounds, and beliefs) of

lawyers? What are the impacts of such mobilization on the work of

lawyers? Adopting a social movement lens and a contemporary historical

perspective, this chapter identifies lawyers’ perceptions of their role vis-a

`-

vis the ‘‘rule of law’’ as the most significant cross-cutting motivation

for participation. The overlap in human rights orientation of legal

nongovernmental organizations (NGOs) and the legal academy, and the

corporate pro bono practice at top law firms, facilitates collaborative

lawyering between lawyers. Despite some potential limitations of such

collaborations, heterogeneous mobilization appears to contribute, at

least in the case of Guanta

´namo, to a greater likelihood of resistance by

lawyers to the retreat from individual rights in the name of national

security.

Special Issue: Social Movements/Legal Possibilities

Studies in Law, Politics, and Society, Volume 54, 213–259

Copyright r2011 by Emerald Group Publishing Limited

All rights of reproduction in any form reserved

ISSN: 1059-4337/doi:10.1108/S1059-4337(2011)0000054011

213

My whole career – twenty-three years – is tied up in the American justice system. I need

to believe in it, or else admit that my career has been devoted to a fiction; that I have

been a fool. Nobody wants to believe that. – Sabin Willett

1

When placed in a human rights frame, Guanta

´namo is often described in terms of the

government’s denial of rights to the prisoners, but equally important has been the denial

of their humanityythrough three forms of erasure of the human: cultural erasure

through the creation of a terrorist narrative; legal erasure through formalistic

legerdemain, epitomized by the government’s invention of the ‘‘enemy combatant’’

category; and physical erasure through torture. Much like the death penalty lawyer, our

purpose was to intervene in the prevailing, post-September 11th social organization of

violence. Muneer I. Ahmad (2009, p. 1762)

INTRODUCTION

At least 600 American lawyers (Democrats and Republicans, Progressives

and Conservatives, solo practitioners, and big law firm partners) have

represented prisoners, from over 50 different countries, held at the

Guanta

´namo naval base.

2

After the terrorist attacks of September 11

2001, the American government has called the prisoners ‘‘the worst of the

worst’’ but has not charged most of them with any crime. Taking personal

and professional risks,

3

American lawyers

4

have urged for human rights on

behalf of these unpopular and unprotected people.

5

Thrice the American

Supreme Court has declared that Guanta

´namo detainees have habeas

corpus rights despite vigorous opposition by the executive each time.

6

Approaching the court again and again has required persistence on the

part of the lawyers. As Justice Souter wrote in his concurring opinion in

Boumediene v. Bush,

After six years of sustained executive detentions in Guanta

´namo, subject to habeas

jurisdiction but without any actual habeas scrutiny, today’s decision is no judicial

victory, but an act of perseverance in trying to make habeas review, and the obligation of

the courts to provide it, mean something of value both to the prisoners and the Nation.

(http://www.law.cornell.edu/supct/html/06-1195.ZC.html)

This extraordinary struggle for habeas relief is the collaborative effort of the

Guanta

´namo lawyers. Until the lawyers approached courts for habeas

rulings, the prisoners existed in a legal black hole, seemingly outside

the reach of the legal system of mainland America. Since then, details of

instances of varying degrees of physical and mental abuse, amounting to

torture in some cases, have become widely known. Today it is common

knowledge that many of the prisoners were not captured during combat or

DEVYANI PRABHAT214

ever seen in a battlefield, but have been handed over by foreign bounty

hunters in exchange for promised American prize money. Many of the

prisoners have now been released, but the camp has not been closed.

7

Much has been written about Guanta

´namo: about the prisoners, the

detention policy, conditions at the prison, human rights implications, and

myriad other issues surrounding Guanta

´namo. Lawyers have written and

analyzed their own narratives, but their work has not yet been systematically

analyzed by sociologists or historians. This chapter is an effort to fill this

vacuum by focusing on the work of the lawyers through documenting the

evolution of their work and analyzing their participation.

THE CONCEPT OF ‘‘HETEROGENEOUS

MOBILIZATION’’ OF LAWYERS

There are several intriguing features of lawyering for Guanta

´namo

prisoners. At first, only a few lawyers mobilized over Guanta

´namo,

but over the years, more and more lawyers have joined in the initial efforts.

This mobilization has followed a pattern of participation of lawyers from

different practice settings and diverse professional as well as political,

backgrounds, and beliefs. I call this phenomenon ‘‘heterogeneous mobiliza-

tion’’ of lawyers. Coalitions have been forged between large law firms,

solo practitioners, law schools, and legal nongovernmental organizations

(NGOs). The collaborations between big law firms which usually represent

corporations and those lawyers who usually represent individuals over this

work have significant effects on the representations (Heinz & Laumann,

1994[1982]; Heinz, Paik, & Southworth, 2003; Heinz, Nelson, Sandefur, &

Laumann, 2005). Today, it has become standard for big law firms to work

on Guanta

´namo matters pro bono,

8

despite the politically charged nature of

these representations. Law Centers and law professors regularly contribute

to the efforts of legal NGOs and practitioners.

The heterogeneity of legal practice settings of participant lawyers is not

merely an attribute that reflects the geographical distribution or physical

designation of work space and work experiences. Legal practice setting is a

proxy for various characteristics of law practice, suchas type of client served,

nature of work skills, and prestige of the legal work, as well as status of

the professional in the profession (Heinz et al., 2005). Lawyers are usually

organized hierarchically in the profession based on their legal practice

settings. Although American lawyers can simultaneously practice in different

After 9/11: Guanta

´namo and the Mobilization of Lawyers 215