20 years later: A Vermont attorney reflects on representing detainees at Guantanamo Bay
It's been 20 years since the detention center at Guantanamo Bay opened up at the United States Naval Base on the coast of Cuba. And as we consider the last two decades and the controversial history of the prison, we're speaking with Vermonters who have had direct ties to it. We'll hear stories and reflections of time spent at Guantanamo and discuss the ongoing legacy of the detention center.
Vermont Public's Mitch Wertlieb spoke with Burlington attorney Robert Rachlin about his experience representing two detainees at Guantanamo Bay Detention Camp. Their conversation below has been edited and condensed for clarity.
Mitch Wertlieb: First of all, what can you share with us about your role representing detainees at Guantanamo? How did that come about?
Robert Rachlin: Well, after the facility was established, the American College of Trial Lawyers, of which I've been a fellow for many years, put out a request for lawyers to assist these detainees, who had no counsel. Up to that point, I'd had no involvement with it. But I looked at the email and I said, 'Well, somebody's got to do it.' So I, on the theory that fools rush in where angels fear to tread, I agreed to do it. And that's how I became involved.
Well, I understand that you took about a half dozen trips down to Cuba. What were the conditions like for the people that were held there? And what was the military presence like?
Our comings and goings at the Naval Base were highly restricted. Certainly, at the very beginning, that was true. Those of us who were representing detainees down there were never granted access, nor did we request access, to their living quarters. The interviews that we had took place in a specific facility that had been set aside for that purpose. I have to say that, first of all, I was deeply impressed by the quality of military lawyers, both prosecution and defense were a real credit to the Bar and a credit to the country. So I do want to make that clear.
I wonder how much you can tell us, if anything, about the people you represented — two different detainees there. What they were charged with, if they were charged with anything? And what were you there to navigate them through?
The nature of the charges was always unclear. As for any conversations that I had, these are classified, and under my security clearance I'm not permitted to go into that. I had two detainees that I had represented at various times. One was an Algerian and he had requested counsel that would be able to communicate with him in either Arabic or French. And I was able to communicate with him in French. So I agreed to represent him. The other, he did not want counsel of any kind. And the way I got involved in that was that a colleague of mine had been assigned to represent this fellow, and he asked me if I would assist him and I agreed to do that.
The first gentleman, the Algerian, I represented for a year or two, and then he eventually got other counsel for reasons that were unclear. But that was his privilege, and it was not unusual. And he was eventually cleared for release, as I understand it. I believe he has, in fact, been released.
The other detainee, who was a Saudi, he spoke quite good English. He made clear his desire that he had no counsel whatsoever. It is my understanding, simply through hearsay at this point, that he has since become eligible for release, but I have no idea whether he's receiving any representation.
Well, Bob Rachlin, you know, memories are short, and we should remind folks that Guantanamo was set up in the wake of the 911 attacks. And I wonder if you'll agree or disagree when I say that it's been kind of a hard sell to get most Americans to care about conditions for detainees at Guantanamo over the past 20 years. If that's true, can you explain why they should?
Well, was it a hard sell? Certainly, I think it was. Should they care? Yes, they should. There are two problems it seems to me. The military cast a very wide net in attempting to apprehend people who were involved in activities against the United States. But it was generally believed that the military was paying a bounty to locals to finger individuals who were supposedly engaged in conspiratorial activities against the United States. The result, I think, was that there were many people down there who never should have been there in the first place.
The other major problem that I saw: it never seemed to me adequately explained why some of these individuals could not have been tried in a United States court in the United States. There was talk about security, about safety, but the fact of the matter was a lone detainee who has no weapons, who is brought to a secure facility in the United States for incarceration, pending trial, would pose no danger to anybody.
I think it's high time, I mean, very high time that this facility were closed. And that Guantanamo went back to being simply a Caribbean outpost for the United States Navy.
The other thing that I find pretty striking about this is that — and you alluded to this a little bit, I think, with one of the the people that you were talking about representing — is that some of these detainees, not all of them, but some were being held at Guantanamo without ever being charged with a specific crime. And I just wonder how that survived a legal challenge, I assume, when U.S. law does not permit people to be held without charges?
That's a very, very good question. There was a Supreme Court case that did hold that these detainees were entitled to the protections of the Fifth and 14th Amendments, which means they were entitled to due process. The idea of holding somebody for now we're talking 10, 20 years without charges would be intolerable. However, charges were, in many cases, preferred — that is they were made and made early on. The problem was that there were no trials. So people were sitting there year after year with charges pending against them. But the military commission system hadn't gotten around to proceeding with them.
Well, 20 years on, how do you feel personally about Guantanamo still being opened in the year 2022?
I think it's high time, I mean, very high time that this facility were closed. And that Guantanamo went back to being simply a Caribbean outpost for the United States Navy. I know that President Obama had wanted to close it. There was a lot of political pushback about that. And that did not happen. And it would probably be the same thing today. There's a very small population there compared to when I was there. I don't know the exact population but I believe it's quite small, probably under 20 at this point.
Disclosure: Downs Rachlin, Martin is an underwriter of Vermont Public.