Kirsch’s presentation Sunday at the Unitarian Universalist Church was part of the Monadnock Summer Lyceum Series, a program designed to showcase speakers of both local and global importance. Kirsch said the case constitutes a violation of the writ of habeas corpus, a legal action that both predates and bulwarks our legal system. Kirsch’s presentation began with a brief history of habeas corpus, the idea of which dates back to the 12th century. Kirsch said our founding fathers were well aware of the writ and its history in England and provided for it accordingly.
He highlighted the unsettling similarities between instances when the writ was suspended, from the Civil War to the concentration of Japanese Americans during World War II, to the creation of the term “enemy combatant” in November 2001.
“It is without precedent,” he said of the term. “It is a construct. It is, in effect, a sub-human category.” The term “enemy combatant,” until redefined in the 2004 case Hamdi v. Rumsfeld, denied such individuals certain human rights provided by treaties, including habeas corpus.
Kirsch said the writ of habeas corpus does not provide a trial or exoneration, but guarantees a review of the factual basis for imprisonment. “It’s where you say, ‘Yes, I’m Smith. But I’m not Smith the bomb-maker; I’m Smith the bun-maker. I’m a baker.'” Kirsch said this example was less an analogy and more an example. Kirsch believes not only in the innocence of his six clients, but also that the majority of Guantanamo detainees are innocent.
“A very small fraction of them are actually dangerous,” said Kirsch. “It’s all political.”
In the first Gulf War, 95 percent of Guantanamo detainees taken to military tribunal for evidentiary review were released, said Kirsch. He compared that to detainees of the current war, 95 percent of whom have had their imprisonment upheld after military review. Kirsch referenced an official declaration made by Stephen Abraham, a lieutenant colonel in the Army Reserve and information officer for the Intelligence Corps, in the course of Bismullah v. Gates, a writ of habeas corpus appeal. According to Kirsch, the declaration exposed the pressures on the military to achieve the right results and that some of the presentations made by the government during tribunals just weren’t true.
Although the great majority of the Guantanamo detainees are still imprisoned, Kirsch said, some had been released from Guantanamo after professing their desire to harm Americans, and did indeed go on to do so. Such men are freed because their country has political leverage, he said.
Bosnia, by contrast, is a very weak country that is beholden to the United States, said Kirsch. That is why his clients have not yet been released and is likely why they are there in the first place.
The story of his clients’ detention starts with a janitor in the American embassy in Bosnia, said Kirsch. The janitor’s daughter married a naturalized Bosnian citizen (now one of Kirsch’s clients). Political tension in the embassy led to suspicions that the marriage was part of a potential “inside job,” said Kirsch.
When American forces began to investigate, the six men were offered up by the Bosnian government in an effort to reach a swift resolution. At that time, most of the men had been employed distributing aid to children with single mothers.
“They didn’t even know each other,” said Kirsch. “Some of these men met for the first time in Guantanamo.” Kirsch has traveled to the prison at Guantanamo Bay 14 times since he took the case in 2004, after the ruling that restored the right of habeas corpus to “enemy combatants.”
“I am sad to say that the accounts you’ve heard of horror, humiliation and abuse are true,” said Kirsch. He described the broken spirits of his clients, who respectfully smiled and thanked him and his team but who clearly found it an exercise in futility.
“They’d look down at their feet, chained together and to the floor of the 8-by-6 interrogation room, and they’d look down at their orange jumpsuits,” said Kirsch.
Kirsch closed by emphasizing his belief that security and liberty can be reconciled.
“Ultimately, sometimes by the skin of our teeth, our legal system comes forward,” said Kirsch, who is working the pro-bono case out of the storied Boston firm WilmerHale. He said the case has taken more than 38,000 man-hours so far.
In the question-and-answer period, an audience member asked what is to become of the people in Guantanamo who are truly dangerous.
“Let’s punish them, but let’s do it the way America has done it for more than 200 years,” said Kirsch.
When someone asked whether members of the current administration should be prosecuted for war crimes, Kirsch elected to take a rain check, but did say it is unlikely anything will be done.
“We are not ready to expose members of our defense establishment to potential prosecution,” said Kirsch.
When asked what the average citizen could do for his case, Kirsch said the best way to help is to pay close attention to legislation.
“There are bits of legislation that hobble the court’s ability to give us our day,” said Kirsch, who said legislation also exists that would prevent freed detainees from seeking compensation for pain and suffering.
Despite the grim content of his speech, audience reaction at the reception was favorable.
“It was a privilege,” said Jean Herron of Peterborough. “I hope to listen again when it’s on the radio.” NPR will air Kirsch’s lecture on Saturday at 4 p.m.
“To think that our country is in this state is appalling to me,” said Ruth Nace of Peterborough. “It’s good to have some truth brought to us personally.”