Author’s Note: I prepared these remarks for the “Going on the Record: Resistance and Writing” panel discussion at the PEN World Voices Festival of International Literature, but the format of the panel was changed, so I didn’t end up delivering them. The Mantle has kindly offered to publish my remarks as an essay.
Editor’s note: Read David Frakt’s "The Closing Argument at Guantanamo," simultaneously published on The Mantle here.
I am very honored and very humbled to have been invited to speak at this event, and to share this stage with such a distinguished group. But I am also feeling guilty, even a little ashamed to be here, because really, I should not be here. I should never have had this opportunity. I should not be in New York being wined and dined and feted along with other literary figures at this amazing festival. I do not say this to be self-effacing, but rather as a comment on the sequence of events that led to my appearing before you today. For I am principally known for speaking out against abuses by my own government and the U.S. Armed Forces, in which I have served for the past 18 years, in particular for an oral argument I gave at Guantanamo in which I sought the dismissal of charges against one detainee, Mohammed Jawad, because he had been abused in a Guantanamo detention camp. It is an odd and discomfiting feeling to know that the main notoriety I have achieved in my career was made possible only because the United States tortured a teenage boy in a lawless gulag, then attempted to put him on trial for a non-existent war crime in the embarrassing excuse for a justice system known as the military commissions. I would much rather have continued laboring in obscurity as a law professor and as a weekend warrior in the Air Force Reserves if it would have meant that the Bush Administration, back in late 2001 and early 2002, had simply chosen to follow the Geneva Conventions, to treat all detainees humanely, and to try them for any crimes they may have committed in a regularly constituted court.
But that is not what happened. And I was not raised to turn a blind eye to injustice, or to allow the suffering of others to go unnoticed and unremarked. So I did what I could, and I am grateful that through my efforts I was able at least to get one young man out of Guantanamo, and perhaps give a small nudge to help push America back onto the path of honoring the rule of law and respecting human rights. Unfortunately, we are still not completely and firmly back on that path, so now that I have found my voice, I will continue to write and speak until we are, and thereafter to ensure that we not stray off it again.
I was asked today to reflect on how it feels to write about torture and the things I learned about the injustices of Guantanamo Bay and elsewhere in the Global War on Terror. Writing about torture has given rise to many emotions, from exhilaration at the power and elegance of the written word, to deep sadness at the subject matter, to feelings of inadequacy at my inability to adequately convey the pain and horror of what I observed, but the predominant emotions I feel are the conflicting feelings of shame and pride.
I am both proud and ashamed to be a lawyer. I am proud to be a member of a profession which includes such men as Alberto Mora, Navy JAG Charlie Swift, human rights lawyers like Hina Shamsi, Jameel Jaffer, Ramzi Kassem and David Remes, and Colonel Morris Davis, and my former opposing counsel at Guantanamo, Army LTC Darrel Vandeveld—people who are willing to stand up for what is right, people who cherish justice and revere the rule of law.
But I am ashamed to be part of a profession that includes in its ranks men like John Yoo, Jay Bybee, David Addington, William Haynes, and Robert Delahunty, men who either ignored their legal training altogether or used it to twist and subvert the law, to defile fellow human beings, and to desecrate our Constitution, while providing a veneer of legality to shelter their political masters from accountability. And I am ashamed that my profession refuses to discipline such men, to hold them accountable in any way for their egregious lapses of professional ethics, and indeed lifts them to exalted positions in our federal judiciary and on the faculties of prestigious law schools. And I am ashamed that our Lawyer in Chief, a fellow Harvard Law School alum and former Constitutional law professor who surely knows better, has let such men sully our mutual profession and our nation’s honor and get away with it scot-free simply because he lacks the stomach for a fight.
I am proud and ashamed to be a member of the U.S. Armed Forces. I am proud that Congress saw fit to entrust the defense of our alleged enemies to the officers of the JAG Corps. I am proud that, without exception, those officers who volunteered or were assigned to defend the detainees in the military commissions have gone above and beyond the call of duty in fulfilling this critical mission. But I am ashamed that so many fellow members of our Armed Forces participated in the abuse of detainees, or if they did not participate directly, remained silent while others did. We must be, and are, better than that. It is not enough to be the most lethal fighting force in the world; what must distinguish the U.S. military from our enemies is the mercy and compassion we show to the enemies who fall into our hands.
Prisoners at Guantanamo Bay's Camp X-Ray (via)
I am proud and ashamed to be an American. I am ashamed that so many Americans remain ignorant or in denial of the abuses perpetrated by our government in their name. I am ashamed that so many Americans are apathetic to the plight of the detainees, that we are willing to sacrifice human and civil rights and our most cherished values in pursuit of the unachievable goal of perfect security, that we accept so readily and uncritically the false reassurances and spurious justifications of our political leaders. But I am proud that so many Americans do care even about people who have been labeled as our enemies, as “the worst of the worst.” I am proud that such people are willing to petition and protest and spend their hard-earned money on behalf of others whom they will never meet and for which they will never receive any recognition or tangible reward. And I am proud to live in a country where speaking out as I did at Guantanamo and as I am doing now does not result in a midnight knock on the door from the authorities, or a pink slip from one’s employer.
Finally, as to my client and friend Mohammed Jawad, I am proud that I was able to make a difference in his life, and to get him out of the hellhole of Guantanamo, a place that he described as “like living in a graveyard,” and to reunite him with his family in Afghanistan while he is still young enough to try to make something of his life. But I am also ashamed, ashamed not only about what he went through, but that I could not do more for him, that he received no compensation for the seven wasted years of his life, no training or counseling or rehabilitation to assist in his reintegration back to civilian life, not so much as an apology from the United States for his appalling and unlawful treatment.
Shame and pride are interesting emotions. Why do I feel shame for the actions of others whom I did not know, people over whom I had no control or influence, just because we share a common profession or nationality? By the same token, why are we proud of people that we barely know or may have never met, whose actions were dictated by their own conscience? I think this phenomenon is simply a function of our interconnectedness, of our common humanity. This point was driven home to me after the ACLU published an argument that I gave at Guantanamo on their website, and I was invited to read excerpts from the argument on the public radio program, “The World,” on the 4th of July, 2008. Dozens of people from around the world, complete strangers, were moved to look me up, find my e-mail address, and send me a note about how my words made them feel, and several mentioned that my words made them proud to be a fellow veteran, a fellow lawyer, or a fellow American. These messages motivated me to work even harder to work for Mohammed Jawad's release, which I eventually accomplished in the August 2009. I would like to share one of these e-mails with you. It was the most succinct of all the messages I received, and perhaps the most profound. It read, in its entirety:
Excellent argument. I'm sure you will be proud of it for the rest of your life.
It’s only been five years, but so far, the prediction has held up. I am proud of what I wrote. And I’m not ashamed to admit it.
Editor’s note: Read David Frakt’s "The Closing Argument at Guantanamo," simultaneously published on The Mantle here.Afghanistan, Ethics, Guantanamo Bay, Human Rights, Justice, Mohammed Jawad, Morality, PEN 2013, Torture, US Foreign Policy