A military jury here handed down a 14-year sentence on Wednesday for Ibrahim al-Qosi, a 50-year-old Sudanese man who has admitted to serving as a cook, supplier, and driver at an Al Qaeda camp in Afghanistan between 1996 and 2001. (Because of a plea deal signed last month, Mr. Qosi is likely to serve much less than 14 years.)
A hundred yards away, a second military jury was hearing evidence in the case of Omar Khadr, accused of falsely surrendering and then killing a U.S. soldier during a firefight in Afghanistan in 2002. At the time, Mr. Khadr was just 15 years old. His lawyers assert that he was illegally threatened and abused during the early years of his detention in Afghanistan and at Guantánamo.
The two cases are being conducted here at the naval base under a controversial system of military commissions created by the Bush administration in 2002, codified by the U.S. Congress in 2006, and revised by Congress and the Obama administration in 2009. Defendants like Mr. Qosi and Mr. Khadr have fewer procedural protections than they would have in a civilian federal court. They are represented by teams of military and civilian lawyers.
Lisa Hajjar, an associate professor of sociology at the University of California at Santa Barbara, came here to observe this week's trials. Ms Hajjar is gathering material for a book about the lawyers who have defended detainees since the attacks of September 11, 2001.
The Chronicle spoke with Ms. Hajjar at the base on Monday. An edited and condensed version of the conversation appears below:
Q. These two cases are the first real tests for the revised military-commission system created by Congress and the Obama administration in 2009. Mr. Khadr's military lawyer says the military commissions are fundamentally flawed. What do defense lawyers generally think about the commissions?
A. The military defense lawyers have been interesting here. They're really protective of the integrity of military justice, and some of them feel that these commissions are a complete abomination. ... The military defense lawyers have been in some ways molded by the roles they've been thrown into. They've been assigned to defend people. They're lawyers. They've passed the bar. They have ethics standards. They've taken an oath. And suddenly they're looking at the rules of the military commissions, and they're not willing to play. And I think that was the thing that the Bush administration never, ever expected. I think they were gearing up for attacks from Human Rights Watch and Amnesty International. But they were in some ways totally outflanked from the rear by these military defense lawyers.
Q. There are widespread concerns about due process in these commissions. At the same time, most of the people convicted so far have received fairly light sentences—in some cases, lighter than they probably would have from civilian courts for equivalent federal crimes. Do some defense lawyers have a secret affection for the commissions?
A. There's a very interesting tension. Some people feel that you should use these cases to make a larger point—a sort of cause-lawyering approach. That's especially true of people who aren't directly representing the detainees. The human-rights organizations' official line is that they fundamentally oppose the military commissions because of the irregularities and the lack of due process. And so they're arguing for federal [civilian] trials, because there are better pretrial protections, better habeas protections, and so on.
But most of the defense lawyers, both military and civilian, are extremely client-centered. And so their argument is, Whatever gets our clients out of Gitmo is fine. Plea-bargaining, challenging evidence—whatever.
And some of these lawyers do have what I call a "cynical faith" in the military commissions. And the record, as slim as it is, kind of vindicates that point. In the military commissions, you're more likely to get a light sentence and get out than you are in a federal trial.
If you consider, for example, David Hicks versus John Walker Lindh. They were accused of very similar things. Lindh was tried in federal court and got a 20-year sentence. Hicks was tried by a commission and got a seven-year sentence. He's been free since 2007.
Q. What kinds of defense lawyers have embraced these cases?
A. I've interviewed well over a hundred lawyers for this project. There is huge variation in terms of their ideological, political, and intellectual backgrounds. But there has been in some ways the creation of a unified—it's not a social movement; in fact there's no social movement—but there is an antitorture campaign. It's almost entirely monopolized by lawyers, and it's almost entirely played out through litigation.
As early as 2004, I began to look at who was doing what, and how, and why, to respond to the fact that the United States had essentially adopted a torture policy. My initial perception—and one that I think has borne out over the years—was that because of the ways in which the Bush administration "legalized" torture, lawyers are in some ways the only people who are in a position to serve as interlocutors here.
The learning curve has been enormous for everybody. Military lawyers have had to learn about human-rights law. Human-rights lawyers have had to learn about military law. There has been a huge amount of collaboration, often through listservs and legal blogs.
Q. You say that there's no real social movement here, and that seems accurate. Why do you think that's the case?
A. It's partly because the detainees are non-American and mostly nonwhite, and partly because the legal issues are so complicated. ... And because there is no invested social movement or constituency in the United States, people like White House Chief of Staff Rahm Emanuel regard any expending of political capital to fulfill the president's rule-of-law-restoration promises to be a loser for Democrats. You know, Fox News will be all over it with "soft on terrorism" stuff. There's nobody who cares enough.
And so, paradoxically, you have these defense lawyers—many of whom are corporate lawyers, Republicans, libertarians—who've gotten involved in this project, who feel that they're fighting the good fight, and there's no reverberation or appreciation for their work in the larger society. But that doesn't mean that they're abandoning what they're doing. It just reinforces a sense of lonely elitism, if I can put it that way.