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On a recent episode of Amicus, Dahlia Lithwick spoke with Baher Azmy, legal director of the Center for Constitutional Rights, about the ongoing legal ramifications of Sept. 11 and the forever wars. Azmy has been challenging the U.S. government repeatedly over the past two decades, litigating matters from the rights of Guantánamo detainees to discriminatory policing practices, to government surveillance, to the rights of asylum-seekers and accountability for victims of torture. A portion of their conversation, which has been edited and condensed for clarity, has been transcribed below.
Dahlia Lithwick: You were the third civilian lawyer to set foot in Guantánamo, and that was in October 2004, after the Supreme Court’s decision in Rasul. And you went on to represent Murat Kurnaz, who was being detained there. Do you mind giving us the CliffsNotes version of how you advocated for him?
Baher Azmy: After the Rasul decision came down in June 2004, the Center of Constitutional Rights and others started identifying additional detainees who had been in touch with CCR who needed lawyers, and one lawyer I’d worked with on another prisoner’s rights matter in New Jersey asked me if I wanted to represent this individual, Murat Kurnaz. I knew nothing about him. I had a conversation with his mother and she was understandably anxious, and then I had to get security clearances to go down to Guantánamo.
So I went down. I knew almost nothing about him. I entered the room with a handwritten note from his mother that was written in Turkish. I still remember, it was very simple: “You will be visited by an American lawyer you can trust. We have been vacationing in Turkey, your brothers go to school, we saw his ex-wife, and she is loving you.” And I just saw the look on his face transform a little bit, like a crack in the matrix. And we talked, we got along really well. The only rights detainees seemed to have was the right for their lawyers to bring them food. So he had coffee from McDonald’s for the first time. Later, they would open a Starbucks in Guantánamo, and just a little piece of absurdist, American consumerism trivia, Murat preferred McDonald’s to Starbucks, as it turns out. I’m not sure I can get him an advertising gig, but for those of you interested in coffee dynamics.
When I got back to the United States—it was very hard leaving him that first time—we finally learned the reasons that the government offered for his detention. They had these combatant status review tribunals. These were administrative show trials that they were going to say satisfied the mandate of Rasul and gave them adequate process. But these were out of law and into the domain of literature, just preposterous. You were presumed an enemy combatant, and without a lawyer and having been in Guantánamo, you had to disprove your enemy combatant status, when in the majority of cases, enemy combatant status was based on classified evidence.
In his case, they said his friend from Germany was a suicide bomber and committed a suicide bombing—although they misspelled it, we ultimately figured out—in Istanbul in a synagogue. Murat said, “Oh, he did that? I do not need a friend like that. I did not know.” So putting aside the astonishing legal proposition that someone could spend the rest of their life in detention because of the unknown and unknowable. Look, this happened in 2003 when Murat was incommunicado in Guantánamo. Put that astonishing proposition aside, it was just made up. Within 24 hours, we’re on the phone with him and had an affidavit for him saying, “Hi, I’m alive.” Just totally made up. And at the same time, no one shared the classified file, which I ultimately made public, that showed the U.S. had been convinced that he was innocent and the Germans as well. Nevertheless, he spent five more years there.
And we became very close, as a lot of lawyers had with their clients. I was his only connection to the outside world, to learn about his family, to learn about politics, to the extent that we could talk about it. He had a rapid ripping sense of humor that was so delightful, but also this very rooted faith in Islam that got him through this. One advantage, I think, some of these prisoners had is praying five times a day helps break up the monotony, to some extent. He was released in 2006. I was there for the reunion with him and his family, which was remarkable. And I was there for his wedding. It’s been a while since I’ve been in touch, but he’s thriving.
That’s a tragic, but ultimately, kind of a happy story about someone who’s eventually released and reunited with his family. But I feel like we can’t really leave this conversation without talking, at least for a moment, about Abu Zubaydah, who you no longer defend, but defended for over a decade. He’s the subject of torture, unlawful detention, unlawful questioning, and he’s still there, the No. 40 guy at Gitmo. What does that leave us to think about the project of the 40 people still left behind at Guantánamo?
There were other faces of indefinite detention. Previously I would say it was Adnan Latif, who had been cleared for release and after pleas to the Supreme Court to please take his case and undo the damage that the D.C. Circuit had been doing. The Supreme Court passed, and two months later, Adnan Latif took his life. He used to be the face of indefinite detention.
Now, Abu Zubaydah was at the intersection of so many pieces of the war on terror. Apprehended in Pakistan; flown to Thailand, where there was initial interrogation by the FBI, by Ali Soufan, who suggested he was making some progress and got some major leads from Abu Zubaydah. Nevertheless, civilians in D.C. thought we needed to do more and then he became one of the first victims of the systematic program of torture and dehumanization and brutalization through waterboarding, all sorts of physical violence, and then sent to European black sites for more torture interrogation, and after the 2006 decision in Hamdan that basically said the Geneva Convention prohibit this kind of brutalization, brought to Guantánamo.
He is the iconic face of indefinite detention now because there are some people who are cleared for release who, in theory, the government should be working on returning. There are some people who are slated for military commissions, so will be tried, although, we can talk about why that probably won’t happen, and then some who Obama said there’s not enough evidence to try, but too dangerous to release. In our opinion, in a place that believes in due process, that should be a null set. You should only be prosecuted based on what you’ve done, not on predictions of how black your soul is based on some expert prognostication about returning to the fight. But nevertheless, he is in that category. But ultimately, I think this is about keeping him secret. He has a lot of stories to tell, some of which have gotten out through his drawings, but it is hard to know what the government would ultimately do with Abu Zubaydah after what they have done to Abu Zubaydah.
In addition to normalizing and becoming complacent, these things grow and expand and take different forms. And I’m guessing you would say so much of the conversation now that we’re hearing, even in the last few weeks around leaving Afghanistan, has that same throughline of “Oh, well. Mistakes were made. Human life was lost. We learned.” And yet again, no sense of real stock taking, no sense of real accountability. This must feel awfully resonant for you after what you just talked about in terms of Gitmo.
Yeah. That’s a really a good point. The sort of “Oops, we did our best” to describe calamitous war-making, total distortions of American institutions that really have become normalized only through this bizarre filter of American exceptionalism that makes us ignore the genocide of Native Americans and minimize the violence of slavery. We just have this immense capacity to put our outrages behind us. And I think there are consequences. I don’t want to try and oversell this, but I do think there’s a throughline between these forms of soft authoritarianism the hard authoritarian in Trump. We tortured people. Thirty years ago, we would’ve said, “America wouldn’t do that,” and we systematically did it. We rationalized it through high-level legal counsel, albeit fraudulent lawyering, and no one was held accountable. The outrages go totally unpunished or unreconciled, and so they become normal and we just get inoculated to one absurdity and one governmental abuse after another.
I don’t want to overstate what you’re saying, but it does feel a little bit as though part of the trick here is if it comes in a different bottle, wearing a different cloak, in a different iteration, then it’s easy just to say, “Well, we don’t torture people anymore,” without seeing all of what comes after it, the iterations that follow, but also to tell an American exceptionalist story about how we’re learning and getting better.
Yes. Right. “We won’t do it again,” but of course, as you’re saying, it’ll come up in a different garb. So maybe we stopped formally torturing, but at the Southern border, we separated parents from babies, an alternative form of torture, designed to maximize cruelty. Another throughline is we’ve posited a vision of freedom through these past wars, and certainly Trump embraces this. It’s also like an Andrew Jacksonian vision of freedom, where ours is increased at the repression of others. So there’s a little bit of Adam Serwer’s point that the cruelty is the point. You maximize cruelty, shock, and awe—the iconography of terror, of showing subdued and cloaked Guantánamo detainees tied together. We’re winning, so you are free, and by the way, they hate us for our freedom, which I still can’t quite figure out how to unwrap from some massive flag of narcissism. Trump has taken that mantle and said, “We deserve to inflict cruelty on other people and we will feel better about ourselves”—some of us will—”when we do that,” but that started before him.
