Longtime anti-death-penalty lawyer Clive Stafford Smith has spent nearly six years working with other attorneys to challenge the government's handling of prisoners at Guantánamo Bay. Their litigation helped force the Bush administration to allow lawyers for detainees, but that hasn't ended the battle. On December 5, the Supreme Court will hear its fourth Guantánamo case, this one challenging the recent suspension of habeas corpus for prisoners. Smith talked with U.S. News about his new book, Eight O'Clock Ferry to the Windward Side: Seeking Justice in Guantánamo Bay, which details his experience of the prison's legal black hole. Excerpts:
What was your goal in writing this book?
The real goal was to get as much of the truth out today that I can. The problem is that there is no meaningful court in which to sort out what the truth is versus what fictions the government has come up with. It's ultimately the court of public opinion that has had more influence than the court of law.
How did your knowledge of death penalty law affect your approach in Guantánamo?
When you look at mistakes in the death penalty arena, various things contribute. There are informants doing it for their own benefit. There are aggressive police officers, incompetent defense lawyers, zealous prosecutors. There is unreliable evidence. And occasionally, there are biased jurors. Now look at Guantánamo. We have bounties paid to [informants] all around Pakistan and Afghanistan. You have those euphemistic "enhanced interrogation techniques"—just another word for torture. You've got zealous prosecutors with no opponents. You've got unreliable evidence, often if not bought out by bounties then by abuse of prisoners. And you've got hand-selected military officers judging their enemies. That's a recipe for disaster. It's not to say everyone at Guantánamo is innocent, but the odds of making a mistake in Guantánamo are vastly greater than in Mississippi. That's very worrying.
You make a strong claim that most prisoners have little connection to terrorism.
I was very surprised when I started going to Guantánamo and meeting people how few of them had been seized in Afghanistan, for example. I had believed the government when they said everyone was captured on the battlefield. My experience now, with well over 60 prisoners in Guantánamo, is that the proportion involved in any fighting is very, very small. I'm confident the vast majority of my clients would be acquitted.
What was it like trying to organize other attorneys to represent the prisoners?
When we first sued the Bush administration over Guantánamo in February 2002, it was just impossible to get people to join up. But gradually, I think as people's eyes were opened to what a catastrophe Guantánamo was, it's become a lot easier. Now there are a lot of fantastic lawyers involved in this process.
How difficult is it to gain prisoners' trust?
It's very difficult. You can't walk in there and say this meeting is confidential, because they'll just laugh at you. You can't start cross-examining them about what they're alleged to have done, because then it's just like being interrogated. I should say I don't blame these prisoners for one second for not trusting me. I think they live in such a bizarre goldfish bowl.
In your opinion, has the treatment of prisoners improved over time?
It's certainly improved in Guantánamo compared to the early days when they were doing what I would refer to as torture. On the other hand, that shouldn't mask the fact that the mythology propagated by the Bush administration—that Guantánamo is Club Med in the Caribbean—is just a lie.
What should be done about Guantánamo?
I agree with Colin Powell that it should be closed yesterday. Every day that the place is open is just causing more pain and more damage to the U.S. reputation around the world. What's it really doing at this point? The concept that they are getting intelligence out of prisoners in Guantánamo six years after they were locked up is just silly.
What have you learned from all this?
The thing I take is the damage that betraying America's principles does to the United States. When you have an open society, you make mistakes. But when you have a secret, closed society, you make a thousand times more mistakes. And the justification by the Bush administration for all its secrecy—the only legal term for that is bullshit. The secrecy stuff is so insidious, so wrong. It reflects hostility toward lawyers, the rule of law, and the media—and it's quintessentially what America is not about.