Human Trafficking in the name of national security

One of the panels at the ABA National Conference on Professional Responsibility had the rather bland and somewhat familiar title of “Representing the unpopular client.”  There was nothing bland or familiar about the presentations.  At another time, I’ll report on the utterly spellbinding presentation by Professor Daniel Coquilette of Boston College Law School on the Boston Massacre, John Adams and the less well known but fascinating and admirable lawyer Josiah Quincy.  This post is about some of what David H. Remes told the audience.

Remes is, of all unlikely things, a partner at Covington & Burling.  Or I should put it differently:  of all unlikely things, Remes and Covington & Burling represent some of the Guantanomo detainees.

I wish every lawyer, indeed every citizen, had heard what Remes told the audience.  I immediately acknowledge that I don’t know what the facts are.  I know there is not just another side to the story but probably many other sides.  Nonetheless, you should take what Remes told us into account as you think about the Guantanamo detainees and the way WE (for it is being done in our name) are treating them, starting with human trafficking by our government.

Remes reported that many of the Guantanmo detainees were purchased by our government.  The price was $5,000 per head.  We paid Afghans, frequently warlords, $5,000 for each terrorist they turned over to us.  Five thousand dollars is a small fortune in Afghanistan.

Remes did not characterize these transactions as human trafficing.  That is my characterization.  He simply stated what he believes is a fact.

We bought many of those detainees from people whose language we do not speak, who were involved in a civil war before we arrived, and who undoubtedly could have made mistakes in selecting who to turn over to us.

So.  We bought them.  They belong to us.  We know that they – every one of them – are “among the worst of the worst.”  In order to be safe, in order to fight the war on terror, we have the right to imprison them, we have the right to conduct show trials and we have the right to execute them.  I should put it differently.  Our government has those rights.  No, actually, what our government has under the unitary theory of executive power, is the power to buy, to imprison, to torture and to execute in order to keep us safe.    Our government knows it is right, knows that these men are “among the worst of the worst.”  We have an obligation to trust our government on this issue. Our patriotic duty is to be silent and to be grateful, or so we are told.

Not everyone agrees.  Not by a long shot.  But few of us are willing to do anything, or know what to do.  So we are are functionally useless.  Fortunately there are about 200 lawyers who are willing and able to act by representing the Guantanamo detainess on a pro bono basis.  Many of them are in small firms or are sole practitioners.  The cost is unimaginable.

Regardless of one’s political views, we ought to be grateful for those 200 lawyers and for the military lawyers who are upholding basic American values at a time when and in a context where it is unpopular and even dangerous to do so.  We should find a way to help.



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