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Guantanamo Bay and the Court of Public Opinion: In Conversation with Clive Stafford Smith

Clive Stafford Smith is a British human rights lawyer who has spent his career working against the death penalty in the United States, along with representing more than 80 Guantanamo Bay detainees. He is also co-founder of Reprieve, an NGO that challenges human rights abuses in the courts of law around the world.

This interview was conducted in two parts: the first written, the second recorded. Whilst the whole interview is reproduced below, the video includes only the second half.

CJLPA: We are pleased to welcome you today, Mr Clive Stafford Smith, to interview with The Cambridge Journal of Law, Politics, and Art. You have devoted an inspiring career as a human rights defence lawyer, having represented over 300 prisoners facing the death penalty in the Southern United States. You are also co-founder of Reprieve, a human rights not-for-profit organization, and more recently a newer non-profit called 3D Centre. In addition to this, what we would like to focus on in our interview today is your work at Guantanamo Bay, where you volunteered your legal services in 2002 and have since helped secure the release of over 80 detainees.


You opened up your book Bad Men: Guantanamo Bay And The Secret Prisons in a manner that I think truly sets the scene. Particularly, your imagery of an iguana at the US base in Cuba. Can you briefly explain the difference between an iguana’s rights and the Guantanamo detainee’s rights?


Clive Stafford Smith: We figured out that the environmental laws applied in Gitmo even though the US government said the Constitution didn’t. This set up the nice paradox that if you kick an iguana you might get 10 years in prison and a $10,000 fine, but if I kick you—assuming you are not an American—nothing happens. So we claimed in the US Supreme Court that if our clients had ‘equal rights with iguanas’ it would be a step up.


CJLPA: Before the Guantanamo cases, you dedicated your life’s work to defending prisoners on Death Row. Reflecting back, how would you compare the experience in defending clients from capital punishment compared to defending clients at Guantanamo?


CSS: It is very similar. The point of the death penalty is that the US faces a very real societal problem—a high murder rate, often precipitated by drugs and alcohol, always committed with guns, largely by society’s disenfranchised. The obvious way to address this is to vastly improve education, have a better approach to drugs, ban guns, and create a meaningful welfare system. That is expensive and long term. So the chosen political ‘solution’ is to blame a small number of young black men, and execute them, as if that will solve anything. With Gitmo, we had a large and expanding group of people who hated us, largely because their dubious leaders blamed us for every ill. In turn, we thought the best way to address the patent inequities in the world was to pretend that all these ills were caused by Muslim extremism and to say that if we punish 780 fairly random bearded Muslim men we would be able to say we had taken action.


CJLPA: Were there any similarities in the legal procedure and what were the main differences worth noting?


CSS: Ironically, the reason the best lawyers in Gitmo were death penalty lawyers from the state courts (not the federal) is because they were the people who understood political cases. It is not about the legal procedure (which is hopeless in both fora) but about bringing power to powerless people.


CJLPA: It would be interesting to get your view on the psychology of Guantanamo, to better synthesize how and why the US was capable of kidnapping innocent men and locking them away for years without a charge or trial. In your opinion, what is it about ‘terrorism’ that brings it to a whole other league where justice and the rule of law are merely a memory? Even the Nazis, the spies from the Soviet Union sharing secrets about a nuclear holocaust, were given a trial.


CSS: It is ironic that in what was touted as a war to protect democracy and the rule of law the law was the first casualty. But then it does tend to come back to whether we respond with any good sense, or simply to convince a gullible domestic audience that we are doing something. In this case, there is the added factor that the US is just not attuned to being attacked. The US was not—thankfully!—used to being attacked. Our territory has really been attacked on three occasions: 1812, 7 December 1941, and 11 September 2001. Terrorism is just a word we use when people have complaints that, while sometimes justified, the powers that be do not wish to recognize.


CJLPA: Even before the legal questions eventually went before the Supreme Court about constitutional rights, habeas corpus, or due process, the first challenge was knowing who was captured. You were one of the first lawyers that got involved in fighting for the detainees at Guantanamo and took on the crucial role of identifying clients. Can you explain how you did this?


CSS: There were three of us who brought Rasul v. Bush and we divided up responsibility: Joe Margulies was essentially in charge of researching law; Mike Ratner was building a coalition of lawyers, and I took on identifying the prisoners and getting permission to represent them (as we could not get to them, we needed a ‘next friend’, who would normally be a family member).


It was not until 2006 that we finally got a list of the prisoners. Until that point, for over 4 years, who was in Gitmo was classified. I was building a list from the start, from media reports of missing people around the world. Unsurprisingly it was very inaccurate.


In Yemen, for example, the per capita national income was then $300 a year. If they wanted to hire a US lawyer for $1500 an hour, if they didn’t eat all year they could get just 12 minutes. So we needed to let people know we would do it for nothing.  So I would go to each country, hold a press conference, and say that I was there to provide free representation. People would come forward to a designated hotel, and I would get them to sign authorizations.


The main thing was to say sorry. I did a lot of that.


CJLPA: Despite the fact that the US did not allow any spot of dignity for the detainees, you still found loopholes around this. I particularly like your idea with Binyam Mohamed, when he asked you for a number ten shirt from the Dutch football team. Can you briefly explain the idea behind this?


CSS: So the Military Commission was just a kangaroo court, not worthy of us taking it seriously. Rather than that we just illustrated its folly. And it kept Binyam amused, as he had a great sense of humour. The rules said you could not dress your client in Orange (that would look like the dreadful early photos), but you could dress him in ‘Culturally Sensitive Attire’ (which was meant to make us look like we were being culturally sensitive). Obviously the answer was to find something that was cultural but orange, so Binyam chose the Dutch No 10 shirt since he was the tenth person in the Commissions (or Con-missions as he rightly called them).


CJLPA: Last time I spoke to you, you told me about the story that you would tell the detainees to make them understand what the Americans were doing, the story of the Br’er Rabbit. Can you briefly explain it and why you told the detainees this story?


CSS: If you say please don’t do something they would always do it. And so I explained to everyone the old story of Br’er Rabbit and the Briar patch where he got caught by Brer Fox and his Tar Baby. Br’er Rabbit is the small clever slightly arrogant rabbit (us), and Br’er Fox is the big stupid animal representing the US government. So Br’er Rabbit said ‘Please don’t throw me into the Briar patch’ because he wants the Fox to do just that. That is often what we wanted too, and the US government almost always fell for it. So I told the story in English, French and my execrable Italian (to some Libyans who spoke it—I could not remember the word for Rabbit) and that went around the Base. It came back later that the authorities thought there was some escape plan code named Rabbit…


CJLPA: I want to continue by discussing the aftermath of Guantanamo. The tragedy extends beyond the release of detainees. The US initially labelled Guantanamo detainees as the most dangerous terrorists globally and then expected other countries, each with their own political agendas, to accept these men as refugees. Can you shed light on some of the difficulties your clients have faced since their release? Additionally, how are they attempting to reinvent themselves?


CSS: It’s important to stress that the predicament of Guantanamo detainees didn’t cease with their release. The US government not only released them, branding them as the most dangerous terrorists globally but also attempted to link them back to their alleged crimes upon release. Take the case of Binyam Mohamed, for instance. When he was sent back to Britain, authorities handed a secret document to the BBC, containing information extracted through torture. During an interview with Mohamed, a BBC journalist pulled out this document and began questioning him based on it. It was only because I was present there and had seen that document in secret before that we were able to stop it, because it was nothing but false evidence obtained through torture.


Moreover, they systematically sent people to countries where they had no connection. Mohamed El Gorani, for example, was a young kid of only 14 when he was taken to Guantanamo. He was born and raised in Saudi Arabia, but his family originally hailed from Chad. The US sent him back to Chad, a place he had never been to, in the middle of nowhere. The authorities in Chad aren’t known for being enlightened, and he had no support there. In addition, I’m going to be in Dubai in a couple of weeks. Many prisoners were sent to Dubai, where they were subjected to treatment worse than what they experienced in Guantanamo.


While some countries have been more reasonable, the overall assistance people received in reintegrating into society has been minimal. For instance, if you know someone with just $3,000, like Ahmed Rabbani, who is attempting to open his Guantanamo restaurant in Karachi, it’s a daunting task as he lacks the necessary funds. We managed to raise some funds for him to provide a roof over his head, but he has had his entire life taken away from him.


CJLPA: I also want to ask you about the labelling of terrorism because, in fact, most of them were not charged with terrorism.


CSS: In the case of Guantanamo detainees, only one was charged with terrorism, and there was no official charge of ‘conspiracy to commit terrorism’ due to a lack of appropriate legal grounds. Instead, detainees were often charged with other offences. The term ‘terrorism’ is indeed used broadly and sometimes controversially. Various countries apply it differently, leading to diverse interpretations. For example, Israelis label every member of Hamas as terrorists, and some British people refer to the Irish as terrorists. So all sorts of countries are doing it. Pakistan indicted Imran Khan as a terrorist. Imran Khan reached the age of 70, without a traffic ticket and suddenly he’s got 200 Federal criminal charges against him, including terrorism. So you know, this is just a stupid word that’s used to try to make people blind to the realities of what’s going on.


CJLPA: Moving a bit away from that, but focusing on the definition of terrorism: it’s a term that people have attempted to define in various countries over the years and have consistently failed, leading to constant amendments. Yet there’s always this push because, nonetheless, there’s a sense of needing to justify that it is an entirely different crime, different from murder, for instance. For example, that the victim in terrorism is not the victim; they’re merely an instrument of instilling fear among the public, or that it’s about sending a political message, and these features are what supposedly differentiate it. What’s your outlook on having a separate definition of terrorism? Do you think it makes sense? And how does having that charge in itself affect obstruction of justice?


CSS: There’s more than just the word terrorism, there are effectively two words beginning with ‘T’ that are used to blind everyone in this whole debate. One is Terrorism, and the other is Torture. So there’s a whole debate about whether what happened to my clients was torture. I don’t care if was torture. You know, we’re looking at this in such a foolish way. There was a time when we thought that just being unpleasant to someone was bad. Certainly, if you have a suspect, and you slap your suspect, that’s not good. But it’s not torture. So suddenly, the debate has become about whether these people a) are terrorists, and b) whether we’re torturing, which is just a totally fatuous debate. Because it’s acting as if treating people badly is acceptable, as long as it falls short of torture. So, you know, I don’t like any of this discussion. I think it just blinds people to any sensible debate.


CJLPA: And I wanted to ask you about any accountability that has happened sense, which I know is minimal. But did any of the detainees receive compensation from the US government for the wrongful detention and acts of torture?


CSS: What do you think? No, of course not. They haven’t received an apology let alone compensation. No one’s admitted that anything was done wrong. Now, we got compensation for some prisoners, but never from the Americans. We got it from the British government for their complicity in what the Americans did. The Canadians had to pay Omar Khadr for their complicity. Then there was the only really successful litigation in America, to get compensation from the two psychologists who came up with this whole thing. They were paid $81 million to come up with a method of abusing prisoners. And so they were sued because they didn’t have sovereign immunity, they didn’t have the defences that the US has created for itself. But of course, their contract with the US included the fact that the US would indemnify them for anything that they might lose through being sued. So neither of those two doctors actually lost anything their lawyers were paid for, and all their costs were paid. And so in that small way, I suppose the US had to pay a small amount of money. And we’re about to do it again, on behalf of Abu Zubaydah, I hope. But the short answer is no. The US has wasted millions and millions of dollars, by now it’s over billions of dollars, on Guantanamo. But they certainly have done absolutely nothing to ensure that the people that they mistreated so badly would not become vehement enemies of America.


CJLPA: Following on that, are there any legal recourse or legal actions that have been in motion since their release? Either for the detainees, or in the sense of the misinformation that was released to the public at the time about how they were labelling them as terrorists?


CSS: The only way to get accurate information out to people is for us to do it. And then the media has been woeful in this regard. You look at the New York Times. On their website, they have been on the Guantanamo docket. The Guantanamo docket was leaked by WikiLeaks. And I ended up testifying in Julian Assange’s hearings in the UK on that particular subject, because I would perfectly willingly believe that the US intentionally leaked that themselves, because that isn’t the information I get to see. I was all excited when I heard that WikiLeaks had leaked secret documents from Guantanamo Bay, because I thought you were going to get to see what I got to see. But that’s not true at all.


What they leaked was the very, very minimal documents that the US government comes out with on each prisoner. And it is effectively the wet dreams of the torturers that they thought were true. And there’s a lot I can’t talk about that because it’s secret, and I can’t tell you or I have to kill you. And that’s quite hard to do over Zoom, so I’m constrained. So, the one thing I can tell you is one case in which I got everything declassified, just to illustrate. So it’s the case of Younous Chekkouri. And with him, there was a 13-page document about what an evil wicked terrorist he was. And when I litigated that in Federal Court, we had 1811 pages, proving all of that was total bullshit (I think that’s the legal term). So for each page they had, we had about 130 pages proving it false. And you don’t get to see that. But the evidence against these guys is just such nonsense, and the media is so gullible. Just publishing that. And we ask the New York Times to put up there, that this is not evidence, this is not true. The vast majority of this has been tortured out of people. Instead, they put one little disclaimer saying lawyers dispute whether this is true. So these men, and they’re all men, will be dogged for the rest of their lives by this sort of defamatory rubbish.


CJLPA: It’s interesting, though, because you do sometimes hear about these criminal cases where individuals got released after finding out that they’re innocent, and there is compensation sometimes in those circumstances. But in this instance, when it’s been quite clear, and it’s in public information that they have been held, without ever having been charged, without having a proper hearing, that to this day, there’s not been any sort of attention to it.


CSS: There’s not been a single instance, in which the US has admitted they made a mistake. You know, to begin with, when they released someone they had all six of the secret agencies saying that this person was no threat. And to begin with, for a little while, they said that you’d been cleared. But they suddenly realized what that sounded like. So instead, they changed the verbiage to say that ‘you have been found to be no longer a threat to the US or as coalition allies’. So they use that language just so they never, ever have to say the words ‘I’m sorry’. Which is ironic as all these Republicans who are so incredibly high on taking responsibility for your mistakes, and want to punish people who do make mistakes, are surely the very last people who are ever going to admit that they made a mistake.


CJLPA:  Both political parties, Republican and Democrat, and I think that’s what makes it so disappointing with the Democrats as well.


CSS: Totally. I mean, Obama said he’s getting rid of Guantanamo and torture. Never did get rid of Guantanamo, but instead he created assassination. So instead of having detention without trial, we have the death penalty without trial, which is obviously even worse.


CJLPA: In light of this, where does international law come into play? Is this an indication of international law’s weakness? Or merely one of the circumstances where it has failed? What is your perspective on that? Specifically, as well, I know that the US has not signed too many treaties in this respect.


CSS: How many treaties has the US signed that are enforceable against us? Human rights treaties? Zero. There’s not a single one. There used to be one, which was the United Nations Treaty on Consular Relations. But we’ve withdrawn from the enforceability clause of that. So there’s now none. So international law is of no relevance to the people in Guantanamo Bay at all. And it’s a great tragedy, because one day the US will need international law. When China is top dog, and the US is complaining about their rights being trampled on, they’re going to say, well, I wish when we were top dog, we’d signed up to all this stuff and enforced it. But they won’t, because they’re willing to enforce it against, you know, maybe a few dictators from Africa, but they’re not willing to have it done to any Americans. So as a consequence, it has no relevance to what we do at all.


CJLPA: But also, more broadly, not in the sense of treaties, but just international law in the sense of war crimes. How is this any different than when you’re at war, and then you’re taking people against their will and detaining them, and there’s no trial, and there’s torture. I mean, it’s what’s currently happening in the world, where we are claiming war crimes, and the UN is speaking up. But in this instance, there’s still to this day, nothing said about it.


CSS: Well, there’s a lot said about it, actually. But it’s all said in exactly the opposite way that we would like. What we have done has licensed a bunch of repressive regimes to do the same thing. And you know, how many times have you seen in Syria or wherever that some group of people that we don’t like would dress up the prisoners they had in Guantanamo orange outfits, and just say that they were doing the same as Guantanamo. So, you know, in terms of humanitarian law and practice, what we did in Guantanamo set us back decades. And it’s such a shame because in the early days when I still thought the law was vaguely relevant to Guantanamo, I did a lot of work on the Nuremberg tribunals, where the bad guys were really the British. Because Winston Churchill said, ‘let’s just kill 10,000 Nazis’. And Stalin said, ‘Oh, let’s give a trial, a Stalinist trial to 10,000 Nazis and then kill them’. And it was only the Americans who insisted on due process to the extent that a very limited number of people were hanged, and 30% of the people were acquitted, which was really a credit to the US. But we’ve thrown all of that away, which is really a shame.


CJLPA: My next question is in light of what we’ve just been discussing about the crimes that are committed and how the government is abusing their power, in the name of national security. Why do you think we still have laws that give the executive the power to abuse human rights in the name of national security?


CSS: Well, I don’t think we really do have laws that give them the power to do it. It’s just they do it and no one is able to stop them. And it’s really interesting. I’m teaching a course at Bristol University this year. And one of the first things, it’s about the US Constitution, and it’s about actually how wonderful the US Constitution is compared to anything the British have. The British legal system is abysmal compared to what we have. Britain has Belmarsh. Belmarsh is very, very active. Britain has its own secret courts, which are way worse than the American secret courts, on account of the special advocate. If you’re a terrorist, and they want to use secret evidence against you in Britain, they appoint you a barrister who you get to meet now before you know any of the evidence, and then after that, when your barrister gets to see the evidence, the barrister can never talk to you again. So this person is meant to be representing your interests and is not allowed to even talk to you. You know, at least in Guantanamo, we’re trusted to see secret evidence and not reveal it to the client unless we have gone through steps to make it possible. And, you know, obviously, we obey that because I wouldn’t trust them as far as I could throw them not to listen in on everything we do.


CJLPA: Is that just what happens? Or is that what’s permitted? For instance, under the Terrorism Act?


CSS: That’s the rules they come up with. But the British are so pusillanimous that they don’t challenge it. I met with them when this was first put up and I said, you’ve got to do what we’ve done in Guantanamo, which is we don’t take part in a system that’s that rotten. We challenge everything about it. But instead, now they go along with it. These are all the people who probably went to the same private school that I did. And so the British system is vastly worse. The American system, at least we sued them. We won in the US Supreme Court. We got access to them. We set up a structure that’s far from perfect, but it’s resulted in the release of 96% of the people so far. So, you know, that’s vastly better than Britain.


But most of that has to do not with the law. The law has been important just to get in there. But of the 750 people who are no longer in Guantanamo, the courts have ordered the release of one. That was Asadullah Harun, who was coincidentally my client. But the other 749 are no longer there because of the Court of Public Opinion. And that’s about going in there, getting the truth out, and then publishing it to the world, which we do all the time, and it’s a battle because they try to make it all secret. But in Britain, you wouldn’t get it, no one does that. They just have a secret little hearing that the prisoners are not allowed to be at. And then they sentence the prisoner to years and years in Belmarsh. It’s dreadful.


CJLPA: What is the role of the judges regarding Guantanamo? How involved were they with the executive? Were they just interpreting cases and making their decisions in order to make sure that they were appeasing those in power?


CSS: I don’t care what the judge is doing in Guantanamo. The judge is totally irrelevant to the system. You know, when you’re in a kangaroo court, the only thing you can do is get out of that court. So I’m not the least bit interested in anything they do, I’m interested in releasing and reducing them to a laughingstock. That’s what we did in Binyam Mohamed’s case: we just took their rules, I gave a copy to Binyam, he had a wonderful sense of humour and just took the piss out of them. And then I reported myself to the Bar Association in this case, because it was unethical for me to follow their rules. And I did that just to get out of their little kangaroo court. Even if it meant that I was in a court in America, at least that was likely to be more fair. So the person who’s the judge in the commission is just a puppet of the government and should be ignored at every level.


CJLPA: In the present day, where are we left with Guantanamo Bay and the detention centre? Is it a matter of individually getting the clients out?


CSS: Individually we got of most of them, and we’ll get a whole bunch more out in the next few days. And then the end, there’ll be 10 people left in Guantanamo. And those will be Khalid Sheikh Mohammed and his mates; probably most of them were involved in some way in 9/11. So, what you’ve got is a capital murder of 3,000 people, and they’re not going to get the death penalty against him. And that’s extraordinary. This illustrates how totally pointless their whole process is that in the worst crime ever committed against the US, they’re going to lose. And that’s not because of the Commissions or the courts or anyone, it’s because of what we did, it’s because we tortured people, and we went so far astray. So in the end, there will be ten poor guys stuck in Guantanamo forever. And you know, they’ll end up dying of old age there, which is not a great thing, I suppose. But it’s a lot better than what would have happened to them if they’d been in a real court.


CJLPA: And finally, what do you think is the legacy of Guantanamo Bay? Do you think the world’s learned from these horrifying events and the world is moving in a better direction in the name of human rights?


CSS: No. I wrote a piece that was for Al Jazeera a while back about taking my grandson on a tour of the Guantanamo Bay Injustice Museum. I don’t know if that’ll ever happen. I hope so. One of the very first times I ever went to Guantanamo would be almost 20 years ago now. The nice sergeant who was showing us around was talking about how he wanted to close it down as a military base and open it up as a tourist destination. You know, it’s got an airport, it’s got lots of very secure hotel rooms, it’s got a McDonald’s, it’s got the Guantanamo Golf Course on Recreation Road, it’d be fabulous. And I thought, yeah, it’d be great. And we’ll have a museum to human folly and injustice. I hope that does happen one day. I hope we give it back to Cuba. And I hope Cuba turns it into something like that. I think the chances of that happening are fairly slim. But it’s what should happen.


CJLPA: This has been an absolutely fascinating discussion. Thank you Clive for taking the time to speak with us today, to help spread knowledge and insight about the ongoing violations happening at Guantanamo Bay.


This interview was conducted by Nadia Jahnecke, Legal Editor and Founder of Human Rights Volume of CJLPA 3. In addition to her role at CJLPA, Nadia is currently working as a Trainee Lawyer and will qualify as a lawyer in England and Wales in March 2024.

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