"These are Real People who Found Themselves in This Nightmare of Indefinite Duration": Interview with Eric Lewis

Anya Pearson interviews Eric Lewis, the international human rights lawyer and partner at Lewis Baach Kaufmann Middlemiss who has represented over 70 Guantanamo Bay detainees over two decades. In his new book, Leaving Guantanamo: How One Country Brought its Men Home from the Forever Prison, Lewis tells the personal stories of some of the ordinary people who ended up detained as terrorists in an offshore enclave without access to lawyers, courts or their own families – as well as the compelling story of the legal and political struggle to release them. 

Your book, Leaving Guantanamo, tells the story of the legal and political battle to free 12 Kuwaiti detainees at Guantanamo Bay. Why was it so vital for you to tell the individual stories of these ordinary people who were labelled as terrorists by the US for political gain? 

When the state takes people and shuts them off in an illegal black hole without access to family, lawyers or the media, the goal is to dehumanise them; to convince people that they needn't waste any of their empathy because they're not really people to whom the public should pay attention. I wanted to re-humanise them. These are real people who found themselves in this nightmare of indefinite duration, held without charge thousands of miles away from home without any hope that they would ever get out.

You write that Kuwaiti society was the “antithesis” of Al Qaida, that Kuwaitis do not fit the profile of impoverished religious extremists and did not have sympathy with Al Qaida because of the latter’s ties with Saddam Hussein, who invaded Kuwait and was beaten by US troops. How did the specific Kuwaiti-American relationship play out in your cases, for both good and bad? 

First, Kuwait was an ally, and so George W. Bush would take the Emir of Kuwait's calls. But by the time of the second Bush and Obama administration there was a fair amount of distrust between the two nations. After 9/11, there was much more scrutiny and suspicion of Gulf countries because so many of the 9/11 hijackers came from the region; the US Government suspected that funds were being raised to support Al Qaeda in Kuwait or other places, but never had any concrete information. But in that moment, such presumptions were the norm. 

Second, there was inequality of power. Tony Blair got his detainees home because Bush had to pay attention. Blair’s support for the Afghan and Iraqi wars was crucial to the credibility of the so-called Alliance of the Willing. Blair was under political pressure in the UK for supporting the detention without charge of Guantanamo detainees and denial of any meaningful hearings of the British detainees. Bush agreed to release the British detainees so that each could achieve his political goals.

The so-called war on terror was a way to convince the American public: “We've got the bad guys”. In the words of Vice President Cheney, “We're taking the gloves off”. The political agenda of the Bush administration was worked out on the bodies of these Arab Muslim men in Guantanamo with the tacit support of the UK government and other governments.

You write that “American action” such as torture (or “enhanced interrogation”) has “greatly diluted American moral authority”. Can you say more on this? 

America's moral authority was always more of a political talking point, part of the American self-image. But although we didn't always live up to our principles, at least we stated them in the abstract, which put some guardrails around what could be expected and accepted by the American public. Those guardrails are now gone.

We see when Pete Hegseth advocates for a military doctrine focused on "maximum lethality, not tepid legality", which is effectively creating a permission structure for the commission of war crimes. We saw it when the Bush administration said that the Geneva conventions and Common Article 3 prohibiting cruel and inhuman treatment and torture were “quaint and outmoded”. Well, the Geneva Conventions are not from the Middle Ages. They were put in place in 1949 after the horrors and cruelty of World War II. The critical need for the affirmation and observance of the Geneva Conventions becomes greater as time passes, technology increases and the world becomes ever more tribal and divided.

With respect to the normalisation of torture, there's a kind of strange fascination with and attraction to torture. President Trump said: ‘You bet your ass torture works. And even if it doesn't, they deserve it”. He doesn’t say who “they” are but he also calls for torture of “their families". One can guess to whom he is referring.

Torture is wrong in any event, but there is a vast body of literature that shows that it doesn’t work. People who are tortured always confess, even when they’re innocent. As my clients have told me, we would admit to whatever we thought our interrogators wanted to hear, just to make it stop.

You write “We live in a world shaped by Guantanamo and that still projects its shadows”. Can you explain what you mean by that? 

First of all, part of it is not in shadow, it is in bright sunlight. There are still 15 men in Guantanamo, so it is still an operating detention centre.

However, the idea that the government does what it does based on facts rather than its own political imperatives – that's a shadow. Another shadow is due process: “Yes, we didn't pick them up on battlefields. Yes, we paid bounties for 85% of them. 95% of them were captured by others. But don't worry about giving them a hearing. They're all bad guys.”

Donald Rumsfeld saying that they are “the worst of the worst” was echoed by then-U.S. Secretary of Homeland Security Kristi Noem about migrants. In both cases, the message is: “Trust us, we're the government. They're bad, they're foreign. We can do whatever we want with them. And they are not worthy of due process, or of basic respect for their human dignity.” It started with Guantanamo and it is accelerating today.

As a legal professional, how did you navigate the re-introduction of facts in a diplomatic climate saturated with fear, dehumanisation, and high emotion?

Part of it was fighting for the rights of these people to have habeas corpus hearings in a neutral court, so that a judge could review the lawfulness of their detention. It took six years of litigation even to get these hearings. Litigation was necessary not to get this relief from the Supreme Court (it is unlikely this Supreme Court would have granted it), but to keep these people and these issues in public view as much as possible.

What's interesting is the generals at Guantanamo made clear within the first few weeks: “These people are nobodies, we got the wrong guys”, but nobody wanted to take responsibility for the mistake. The Bush Administration needed to show they were winning the “War on Terror.”

At their initial hearings conducted by the Defense Department (without lawyers or any meaningful right to present evidence), 95% of them were found to be “enemy combatants”. How could this be the case given that there was no actionable intelligence or evidence coming from Guantanamo? The Defense Department was judging its own work. It was only when they got into a federal court before a neutral judge that there could actually be something that resembled a factual hearing. And it's not like federal judges are a bunch of bleeding hearts! These were tough hearings under rather unfavorable conditions in terms of evidence and access to witnesses. Yet 28 out of the initial 35 habeas corpus hearings that went through in 2009 (after the detainees had been in Guantanamo for seven years) found the petitions for release to be factually sound. Some of the judges were outraged by the treatment of these people and particularly the stench of torture that hung over the so-called evidence. 

It also helped that it had been seven years since September 11th and the moral panic had started to abate somewhat. But, ultimately, what helped the two Kuwait 'forever prisoners' that I represented was that Obama introduced the Periodic Review Board, which focused on whether a detainee presented a security risk in the future rather than what may or may not have happened years before. I've got to think at some level he was uncomfortable with the idea of indefinite detention without trial, but maybe not as much as he should have been. 780 people went through Guantanamo; 765 were never charged with anything. Only 15 were ever charged, and they dropped a bunch of the charges eventually. 

Obama’s Periodic Review Boards gave us an opportunity to turn away from discussing evidence from the fog of war and to prove the detainees posed no future danger instead. Understandably there were guys who were extremely unreceptive to the idea of having a new hearing where “we're all going to be nice and not say a word about the fact that we spent 13 years stuck here without any hope.” We had to convince them that this process was not a trap and presented a real chance for release. It was not easy.

Your team’s diplomacy in managing these different stakeholders is impressive, not to mention the strength of the men to play the game for the sake of obtaining freedom after 13 years in prison. 

The one thing the prisoners made very clear is they would never admit to having done something that they didn't do. Generally, in a hearing like that, a tribunal wants to see remorse, not to be told this is all an egregious injustice. So it was a matter of trust building, proving the detainees had a family structure, a supportive government, and a rehabilitation centre in their home country. These were all negotiated solutions to a very complicated problem, where we had to get the Kuwaitis and the Americans together on something that would work. 

Your case really made progress when Ambassador Fried was persuaded to speak with your colleague ‘off the record’ in a coffee shop. What does this say about democratic processes in Washington?  

Yes - Marcia Newell, who was part of the core group that worked on these cases for fourteen years (with a Kuwaiti lawyer, Abdulrahman Al Haroun and an American lawyer, William Brown), spoke to Hillary Clinton at a cocktail party and Clinton said: “Call Dan Fried”. Most people don't go to cocktail parties with Hillary Clinton!

What it says is that government officials, including Dan Fried, did not want to be on the record about having meetings that would need to be official or mandated. Fried also said he did not want to meet with any lawyers; thankfully Marcia was not a lawyer and so he agreed to meet in a noisy coffee shop in Washington. In a way, this back channel was probably the factor that allowed the case to take a positive direction. Generally, in a meeting with the government, there's a lot of posturing and unwillingness to bat around ideas in a way that might let you identify common ground.

Why did you share ‘lessons learned’ in your book and who are they for? 

The book was initially going to be more of a treatise for diplomats and lawyers dealing with complex, multinational issues. But when I got to that chapter on ‘lessons learned’, the book had been recast to focus on the stories of the detainees. I was thinking through the legacy of Guantanamo in American culture, politics, and law. I wanted to think through how America has reacted in times of panic and how the rule of law stands up to that pressure – or not. I also wanted to share some of the human lessons learned about resilience, and how some men were broken by their treatment.

You know, lawyers produced the torture memos [that provided the legal framework to authorised the CIA and the US military to use "enhanced interrogation techniques" on terrorism suspects]. I can assure you that none of these six who wrote the torture memos suffered in their later careers for using the law with a kind of cruel sophistry that takes the structure of legal reasoning and turns it into something evil.

From your experiences, do you think the Supreme Court can stand up to Trump? 

I think this Supreme Court will push back against the Trump administration on things that affect business, like the tariffs, or on things that are contradicted by specific text in the constitution. While there may be some room on the margins, I think it is likely they will continue to be horrific on human rights of foreign nationals and continue to either speed up or slow cases down so that by the time the case comes for decision, whatever bad would have happened has already happened.

The Court also appears to have a fairly solid majority that refuses to give any real consideration to preventing executions even when there are significant legal issues. The Court has impatiently overruled lower courts and ordered executions to go forward even when there are valid claims of innocence, adopting procedural rigidity rather than an approach to due process that would prevent executing the innocent, the mentally ill and others.

One thing that gives courts legitimacy is the obligation to explain their reasoning. By issuing these so-called temporary orders on the “shadow docket,” there's no explanation, and they create facts on the ground that are lawless. 

There are still 15 men at Guantanamo, untried and forgotten. Last year, President Trump promised to imprison up to 30,000 migrants in Guantanamo. How can your book help civil society respond to this? 

Well, first of all, it's ludicrous. 30,000 people is a stadium full of people. If you've been to Guantanamo, you'll see there's no way in hell they would have anything like that kind of capacity. Its maximum detention capacity when it was fully geared up in the early years after 9/11 was maybe 600 and the conditions were quite awful even then. I also suspect that one of the reasons why Trump didn't keep newer detainees in Guantanamo is that somebody warned him that these people have rights under US law and Guantanamo has been found to be a part of the United States. When they send the prisoners on to prisons like the one in El Salvador where everyone's tortured and indefinitely detained without trial, the US government can say: “There's nothing we can do about it. We have no sovereignty” which is rubbish because El Salvador is doing this on a contract basis, outsourcing the dirty work of the United States.

Guantanamo for Trump is a symbol of his authoritarian control. And we have sowed so much ill will throughout the world that ISIS uses orange jumpsuits as a symbol too. The US government is still spending over half a billion dollars a year on running that detention facility, and have probably spent well over 13 billion dollars since it began.

What did you learn about life from the detainees you worked with? 

First, having a community kept them together more effectively than anything else. The men that lived in a group setting did a lot better than those who spent a lot of time in solitary. 

Second, that men with hope are different from men without hope. That they were able to be likeable and give confidence to the Board after everything that they could be trusted to go home and resume their lives after they’d been through was remarkable. One of the greatest days of my life was when I visited Kuwait after these men were released. One of them, I think it was Fayez, said: "There's my lawyer”. And they weren't chained to anything. We hugged and hugged. Freedom changes people.

Third, people all react differently to inhumane treatment. It's not a matter of who's stronger or who's better or who's more of a man. It's just that when you stress people to that point, some people make it and some people don't. And virtually none of us will ever know how we'll each respond to that kind of trauma. There's never a justification for mistreatment, yet the impulse to do it happens again and again and again.

Leaving Guantanamo: How One Country Brought its Men Home from the Forever Prison by Eric Lewis is published by Cambridge University Press.