The Truth about Gitmo: A Conversation with Lowell Sachnoff

Lowell Sachnoff is a distinguished Chicago attorney who has worked in collaboration with the Center for Constitutional Rights to represent detainees in Guantanamo since 2007. Mr. Sachnoff is the 2007 recipient of the Edwin A. Rothschild Award for Lifetime Achievement in Civil Rights and received the Lifetime Achievement Award from The American Lawyer for “advocating for women, minorities and the poor, and inspiring others to do likewise.”

His Ukrainian parents fled Eastern Europe to escape oppression against Jews and immigrated to Chicago’s historic Maxwell Street. As a child, Sachnoff witnessed first-hand the devastating effects of poverty and discrimination during the Depression. He subsequently attended Harvard on an academic scholarship and later graduated from Harvard Law School in 1957. He also served as an officer with the Office of Naval Intelligence during the Korean War before founding Sachnoff & Weaver in 1963. In 1960, Sachnoff helped found the Chicago Lawyers’ Committee for Civil Rights Under Law to protect the civil rights of the poor, disenfranchised, and society’s most vulnerable.

Your firm was one of the first to represent detainees at Guantanamo Bay. What led you to choose this as a cause?

About [2007] I made contact with an organization called the Center for Constitutional Rights, one of my all-time favorite NGOs. They had just begun to contact lawyers in large law firms, senior litigators like myself, to connect them with prisoners in Guantanamo. By that time the Supreme Court had ruled that the prisoners had the right to have their imprisonment at Guantanamo tested by the great writ of habeas corpus.

I and one of my partners, Matt O’Hara, ended up with four clients at Guantanamo. I knew by that time that Guantanamo was a legal stain on our justice system. There were large numbers of young Muslim men imprisoned there who did nothing wrong, and were just sold to the American forces for bounties in Afghanistan and Pakistan. I realized that that’s probably the major reason I have a law license, which is to use it not just to do well, but to do good too.

What responsibility do you think the United States has to the civil rights and dignity of prisoners of this nature?

The question is, “What obligation does the US have to treat these prisoners in a manner that is consistent with the rule of law in our country?” My concern was that there wasn’t any law at Guantanamo; it was a lawless place where the rights of these young Muslim men were being violated in a most outrageous way.

The Supreme Court’s Boumediene decision in early 2008 held that even though these prisoners were not housed on American soil, they could test the legality of their confinement. The government had made the absurd argument that because Guantanamo Bay is not part of the United States, our Constitutional guarantees should not apply.

The CIA Torture Report has put the case of Guantanamo and the plight of the detainees back in the public consciousness. Do you think it has had a lasting effect on how the average American feels about Guantanamo?

People are seriously misinformed about who is in Guantanamo. You start out with statements like those of Vice President Cheney who said every one of them was dangerous, that they were “the worst of the worst”. The Chairman of the Joint Chiefs of Staff, Richard Myers, back when the first prisoners were flown there, actually said that they’re so dangerous that if they could, they would gnaw their way through the hydraulic lines of the airplane to crash it.

Well, of course we know that isn’t true. There were over 700 prisoners sent to Guantanamo, and during the Bush administration alone, 530 of them were released. Contrary to what Cheney, Bush, and Rumsfeld were saying at the time, the Bush administration was busy releasing all those men back to their home countries – not one of them as a result of a court order applying a writ of habeas corpus. It became clear that so many of them had ended up in Guantanamo because they were sold to the American forces after the invasion of Afghanistan right after 9/11.

If two people [in Afghanistan and Pakistan] pointed towards a young Muslim and said, “Looks like a terrorist to me,” that was enough to have them picked up. There was none of the reasonable cause for arrest that controls the confinement of people here in our country. Millions of leaflets that Rumsfeld said “fell like snowflakes in Chicago,” were dropped all over Afghanistan and Pakistan, which said, “Get rich beyond your wildest dreams. Help us to capture Taliban and al-Qaeda Islam terrorists, and you can get huge amounts of money, millions of dollars.” Think of the incentive, the perverse incentive that created in a country like Afghanistan where the average income is about $400 a year.

The topic of your recent talk at the Stevenson Center was the case for President Obama to close Guantanamo. What is stopping him, and how does he accomplish it?

Obama’s first executive order was to close Guantanamo in a year. Unfortunately, he didn’t do that at a time when he probably could have. I don’t think he foresaw the Republican electoral tsunami of 2010. Obama did release quite a few of the detainees in his first two years, but he was in no rush to do so. Even though he said, “Close it in a year,” there was a big political push back because it meant obtaining the consent of countries all over the world to take those men.

Republicans take over the House in 2010, and Congress attached to the National Defense Authorization Act (NDAA), a huge omnibus bill that funds the troops, amendments that banned the transfer of any of the prisoners in Guantanamo to any countries without going through a complex series of hoops. The prisoners had to be cleared as not being terrorists by six different agencies and departments in our country. The country for resettlement had [to have] taken adequate means to remit or contain any potential damage done by any prisoners sent there. And if there was damage done that they would guarantee the US compensation for it. Also the Administration had to give Congress 30 days’ notice before any of the prisoners could be resettled, and there was a flat prohibition against sending any prisoner to the US.

Think about how difficult it would be if you had to persuade a country overseas, “We’d like you to take five or six of our prisoners from Guantanamo,” and the first thing the diplomats in that country would say is, “Wait a minute, you want us to take these prisoners, but you won’t let them on your soil?” But Obama’s been doing that now slowly for the last four years. Over 30 or 35 prisoners who have been released in 2014.

In the State of The Union address, [the President] uttered the words that he absolutely is determined to close Guantanamo, and to do it this year. He can’t do it by executive order [because] that would cause a Constitutional clash. He certainly couldn’t veto the NDAA that funds all the troops. But in the signing statements he said that under the Constitution, he is the Commander in Chief of the Armed Forces, he has the exclusive powers to conduct a war. These are all prisoners of war, and if appropriate, he said he would use those Constitutional powers to help him empty out Guantanamo.

Once he finds countries to get the 60 cleared prisoners out, he’d then be left with only about 55. One of the problems with the cleared prisoners is that over 50 of them are Yemenis. None of them can go back to Yemen because Yemen is such a chaotic country. So it’s hard to find countries for them, but the Administration has some sway to get countries to take them. Of the 50 left, there are about 20 who are classified as hardcore, the ‘Khalid Sheikh Mohammed’ prisoners. For them the Administration should bring them to the US and try them in criminal courts here. The objection that we should never bring a terrorist and try him in our criminal courts is simply bizarre. At the present time, there are already over 300 convicted terrorists residing in maximum security federal prisons here.

The [final] small group of about 25, are men who have been designated as dangerous, but for whom there is insufficient admissible evidence to try them in a courtroom–and when I say insufficient admissible evidence, I mean sheer speculation or torture. Unfortunately because countries aren’t going to take them in that status, there are only two things that can be done. The prosecutors in the Department of Defense have to get busy and do what lawyers do, which is find admissible evidence that isn’t tainted by torture. If they can’t find admissible evidence, then they should do what is done with anyone accused of a crime but can’t be tried because there’s insufficient evidence – that is release them.

I have one client left there, a Tajik who made the mistake of going to Afghanistan to find a better life in August of 2001. He was there after 9/11 when the US invaded Afghanistan and very quickly swept through that country. After the invasion occurred, he did what many young Muslims did to get out of that country, he went to the only safe country that he thought could help him—Pakistan. A serious blunder. He was picked up at the border in Pakistan by the notorious ISI. They tortured him and sold him to the American forces for a $10,000 bounty.

He was picked up when he was 25. He was able to withstand the horrors of Guantanamo in the early years: solitary confinement and harsh interrogation and all. After the Obama administration took over and recognized that he was not a terrorist, he was cleared for release and is waiting for a country to be resettled in. He can’t go back to Tajikistan because he worked for a leader of the insurgency against the [Tajikistan] government in the late 1990s who was later killed by the government. And they believe in guilt by association in that repressive regime. He is awaiting resettlement to another country and would be a good citizen anywhere.

Is there anything else you’d like to say before we wrap up?

The moral and legal stain of Guantanamo is not adhering to rule of law by persecuting and dehumanizing a large group of people – over 700 Muslim men sent to the prison at Guantanamo. But it’s not the first time we’ve done that (not because of what they had done, but because of who they were, Muslims in a time of near anti-Muslim hysteria). We do have a kind of schizophrenic history in our country about dealing with that kind of issue, beginning with the way we dehumanized and persecuted American Indians at the earliest times of our country.

We perpetuated that against African Americans who were treated as three-fifths of a person in our early Constitution. Then, at the beginning of World War II, we repatriated thousands of innocent Japanese. We took them from their coastal homes and moved them inland, not because of anything they did, but only because they were Japanese. That’s what we’ve done in Guantanamo, in this hysterical response to 9/11. Almost as an official matter, on the slimmest of suspicion, hundreds of Muslim men were suspected of being terrorists and treated as such. As Americans, we need to be far more vigilant and guard against doing that in the future.

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