Thursday, December 30, 2021

Gitmo attorney discusses representing a man at Guantanano

Many years ago I wrote a piece for Huffington reflecting on my representation of men at Gitmo. Shepard takes this to a whole new level. 

What I've Learned as a Lawyer Representing Prisoners at Guantanamo

Lieutenant Commander Shepard is a military officer and attorney in the U.S. Navy Judge Advocate General’s Corps. He currently serves as a managing defense counsel with the Military Commissions Defense Organization.

In August 1944, Pvt. First Class Louis Cooperberg, a U.S. Army medic, wrote to his sister Eleanor in Brooklyn of his experience treating wounded Nazi soldiers on the front line. “I give them the same care, the same treatment I give our own boys,” Private Cooperberg wrote. “Yet all the while, I know these same men have killed my cousins and aunts and uncles in Poland, have tortured and killed without compunction, and despise me because I am a Jew. But I treat them.”

Jews under Nazi occupation were still being hunted down and murdered, yet Private Cooperberg ministered to all those in his care as equals. This ethos reflects the very best of American values: recognizing the humanity in everyone, even our enemies, and treating those in our custody with dignity and respect.

It’s worth reflecting on this ethos now 20 years after 9/11, one of the darkest days in our country’s history. Like Private Cooperberg, many Americans shone brightly after that darkness, unifying against horrendous acts of evil by coming together in ways that affirmed what our country stands for and, just as importantly, what it stands against.

But after 9/11, many others turned away from our values. Around the globe, American agents arrested men on thin allegations of terrorist activity, and secreted them away to clandestine black sites for years of torture or — to use the legally approved euphemism — enhanced interrogation. Many of those arrested eventually made their way to the detention center in Guantánamo Bay, Cuba, which was established 20 years ago, in January 2002.

American leaders have all too often excused our moral departures at these black sites, and in the prison at Guantánamo, as an end justifying the means. But even if one was to set aside the immorality or illegality of the means, the ends have proven both ineffective and counterproductive, pushing this country ever further down a path of forever war and incalculable loss.

And, as underscored at a recent hearing in Guantánamo, we cannot ignore the immorality. At that hearing a Pakistani man named Majid Khan, who went to high school in suburban Maryland, described the brutal beatings, forced sodomy, and other inhumane treatment he said he suffered at the hands of American interrogators: Tubes covered in hot sauce before being inserted into his nasal cavities. Repeated simulated drownings. Garden hoses forcibly inserted into his rectum.

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After hearing Mr. Khan, a jury of senior military officers condemned their government’s behavior. The handling of detainees, they wrote in a letter to the court, was a “stain on the moral fiber of America” and “should be a source of shame for the U.S. government.” They acknowledged Mr. Khan’s misdeeds — he served as a low-level operative for Al Qaeda — but found that our treatment of him was akin to the “torture performed by the most abusive regimes in modern history.”

Compare this horror with the grace of Private Cooperberg, who healed those who believed, he wrote, that he had “no right to breathe the same air as the rest of the world.” It would have been understandable had he made excuses to avoid treating wounded Nazis. Instead he saved their lives.

As a Jewish American military attorney assigned to defend some of the men we have kept in Guantánamo, I feel a strong kinship with Private Cooperberg. After all, many of the individuals I represent are alleged to have been part of Al Qaeda, an organization dedicated to attacking both America and Jews.

To be clear, my clients have not expressed antisemitism or hatred toward me. My primary client isn’t alleged to have attacked America — he’s alleged to have been tangentially involved with an attack in Indonesia — yet he was brutally tortured and has been in prison for nearly two decades. Regardless, my colleagues and I assist these men not because we support the crimes they are alleged to have committed, but because we believe that our country should hold itself to the highest standard of basic decency and human rights.

As an attorney and military officer, I am duty bound to defend my clients, a mission which our country and Constitution demand. Likewise, as a Jew, I was taught the core value of seeing humanity in all people — even enemies. And as an American, I was taught that everyone has certain unalienable rights, and that the protections of fair trialsdue process and a prohibition on cruel and unusual punishment apply regardless of the alleged crimes.

Those who seek to abrogate these rights, who take shortcuts, who bow to near-term political or ideological expediency, forget the basic tenets of what this country truly stands for, what once made us a beacon of light for those struggling around the world.

Private Cooperberg’s letter closed with a warning that the true enemy is “any people who proclaim themselves better than all other peoples, and then set out to prove it by murder and trickery and by the stupidity of those who never bothered to reason for themselves.”

As Americans, we are constantly presented with the choice of what our moral role in the world should be. We can pick a path of turpitude and compromise, choosing amoral, shortsighted means of attacking those who seek to harm us. But such choices come with consequences — they severely erode our relationships abroad, and weaken our moral core at home.

Alternatively we can choose to illuminate the many darknesses of the world with the power of our example, and reclaim the grace and humanity we find in the best efforts of the Americans who have come before us.

If we’re going to choose the latter path, we must acknowledge our mistakes, and show we can learn from them. What’s happened at Guantánamo is an example of one such error. Twenty years on it is time for us to choose how — or if — we can begin to repair the damage.

The choice is ours. But I think I know what Private Cooperberg would have us do.

Lt. Commander Aaron J. Shepard, Judge Advocate General’s Corps, United States Navy (@GTMOCatch22) is a military officer and attorney. He currently serves as a managing defense counsel with the Military Commissions Defense Organization. The views expressed do not reflect those of the Defense Department, the U.S. government or any of its agencies.[--this last part is of course unfortunate]