The Routledge Companion To Literature And Human Rights

“Where is the world to save us from torture?”

Marc D. Falkoff

In 2007, I helped publish a small collection of poems written by 17 Guantánamo detainees. All of the men whose work appeared in Poems from Guantánamo: The Detainees Speak (2007) wrote their poems “inside the wire,” that is, while they were imprisoned as suspected enemy combatants by the US military. Several, including a Yemeni named Adnan Latif, were clients whom I was representing in habeas corpus litigation in federal court.

When the volume appeared, Adnan, like most of the other poets, had been imprisoned for more than five years, often in brutal conditions. When he and the other poets were first brought to Guantánamo, they were penned in open-air cages reminiscent of dog kennels. Eventually they were moved to newly constructed maximum security prison buildings, where they typically spent 22 hours a day in solitary confinement. Over the years, the conditions drove some of the prisoners, including Adnan, mad.

The abuse suffered by the detainees has been well documented in the news media and court filings, thanks in large part to the information-forcing effects of the habeas suits that their lawyers filed on their behalf. Adnan’s treatment while at the prison was typical and often horrific. Some of the indignities he suffered might seem trivial, but were in fact devious. For example, in the early years of his confinement, Adnan would occasionally have his trousers confiscated. The only reason for such bizarre treatment was to inflict religious torment, since his resulting immodest dress prevented Adnan from engaging in his daily prayers.

Other treatment was more obviously barbaric, including the cell extractions to which he was occasionally subjected. Once, as punishment for stepping over a line painted on the floor of his cell while he was being served his lunch, Adnan was visited by six guards dressed in riot gear. They pummeled him, leaving him bruised and bloodied.

The inhumane treatment meted out to Adnan and many of the other poets was a sadly predictable consequence of attempts to operate a prison above the law. Indeed, when Poems from Guantánamo first saw print, none of the prisoners had been charged or convicted of any crime. Even in May 2014, fewer than a dozen of the 779 men who had been detained there since the prison opened in January 2002 had even been indicted.

To be sure, back in 2007, some of the poets had already been released by the Bush administration, along with about 500 other detainees. But all of these repatriations and resettlements had been brought about by executive discretion rather than through compliance with a judicial order. As the poetry volume went to press, the legal status of the detainees was still in flux, and not one of the men had been allowed to argue in court that his continued detention was illegal.

When discussing Poems from Guantánamo, it is important to begin with the historical and legal context in which the volume came into existence, because its publication was a self-consciously instrumental act. From the perspective of lawyers like me, getting these poems into print was part of an effort to reshape the dominant narrative about who was being detained at the prison. Its design, in a word, was to help get detainees like Adnan their day in court.

The purpose of the volume’s publication was therefore only partly aligned with the poets’ reasons for creating their poems in the first place. Indeed, none of the poets could have harbored any realistic hope that the lines they composed while in prison would ever be read by an audience much larger than their fellow detainees and perhaps their lawyers, and certainly not by readers around the world as part of a collection that would eventually be translated into more than a dozen languages.

In the earliest days of the prison camp, when the men were denied paper and pen altogether, some of the prisoners would take a pebble and carve short two- or three-line poems into the Styrofoam cups they were given at lunch time. A poem by Sheikh Abdurraheem Muslim Dost is representative: “What kind of spring is this / Where there are no flowers and / The air is filled with a miserable smell?” (Dost 2007: 35). These “cup poems” would be passed around the cellblock from prisoner to prisoner, inevitably to be collected with the evening’s trash. The transience of the poems was a given. The poets were writing verses into the void.

But the poets were also creating and nurturing life on an island surrounded by a sea of despair. Their efforts were akin to those of several of my clients who would squirrel away cantaloupe and tomato seeds from their meals, so that when given an opportunity to be outdoors they could plant the seeds in whatever rocky soil they could find among the prison’s concrete walkways. These men knew, of course, that without the ability to regularly water their seedlings their efforts would come to nothing. But planting the seeds was an affirmation of their humanity, an effort to stave off despair, a gesture of hope.

Almost as soon as the detainees were sent to Guantánamo, a false narrative about the population took root in the mind of the public. As far as most Americans knew, all of the detainees were terrorists. The Bush administration explained that these were men who had been “picked up on battlefields fighting against our troops” (Hughes 2007). They were all terrorists and vicious killers – “the worst of the worst,” in Navy spokesman Roberto Nelson’s enduring formulation (Shadid and Nickerson 2002: A13).

But these obloquies were provably false. By publishing the poetry volume I thought we could flush more accurate information about Guantánamo into the public sphere. The effort was crucial, because popular misunderstanding about the prison had already manifested itself in federal legislation designed to keep the detainees out of the courthouse altogether.

We knew the “worst of the worst” narrative was disingenuous thanks to the habeas lawsuits, which themselves had been made possible by a 2004 Supreme Court case, Rasul v. Bush, which held that the detainees had a federal statutory right to judicial review of their detention. Each of the habeas suits alleged that a prisoner’s detention was illegal, and required the military to offer a legal and factual justification for the continued imprisonment. When these justifications started to appear in the court cases, we learned some stunning information. According to the military’s own documents, 86 percent of the detainees who ended up at Guantánamo had been taken into custody not by US troops, but by Pakistani security forces. Only 5 percent of the hundreds of men who were detained at Guantánamo were picked up on a battlefield fighting US troops, and only 8 percent were even accused of being al Qaeda fighters (Denbeaux and Denbeaux 2006).

Guantánamo, in a word, was not filled with the worst of the worst. The government’s disclosures undermined the premise that habeas hearings could serve no useful purpose. To the contrary, they suggested the detainee population at Guantánamo might be terribly skewed toward innocent civilians rather than “enemy combatants.” And there was more reason to believe that scores if not hundreds of mistakes had been made.

The military undeniably faced a difficult task in Afghanistan. The enemy did not wear uniforms, and all of the men who would eventually be imprisoned at Guantánamo were taken into custody while wearing civilian dress. There are two reasons that a person caught near a battlefield might be wearing civilian clothes. One is that he is an enemy soldier disguised as a civilian, in violation of the laws of war. The other is that such a person could actually be a civilian. How to tell the difference?

Article 5 of the Third Geneva Conventions provides the answer. It requires a hearing when the privileged status of a captured person is unclear. During the First Gulf War, the United States held 1,196 of these Article 5 hearings, and as a result the military determined it had picked up innocent civilians in 886 instances, meaning its error rate was almost exactly 75 percent. Although the number of mistakes may seem shocking, one could take comfort that the failsafe system seems to have worked well. The errors, after all, were promptly discovered and fixed.

But during the Afghan conflict, the Bush administration unilaterally decided that the Geneva Conventions – including the requirement of Article 5 status hearings – did not apply to the conflicts with al Qaeda or the Taliban. We therefore had a situation in which captures were overwhelmingly made by foreign rather than US troops and in which no status hearings were convened. Moreover, American forces were paying out thousands of dollars in bounties to foreign troops for each prisoner they turned over who was alleged to be a member of al Qaeda or the Taliban. The system could hardly have been designed to produce more errors.

Adnan Latif was one of those men who was wrongly detained. He was picked up by Pakistani troops while trying to leave Afghanistan in late 2001, during the American bombings. He was turned over to US troops and labeled an al Qaeda fighter, though he insisted he was no soldier and that he was in Afghanistan seeking charitable medical care. In January 2002, he was brought to Guantánamo.

Here is what we know about why Adnan was in Afghanistan in the first place. He had been in an automobile accident in 1994 while serving in the Yemen military. The accident caused serious head trauma, leaving him with inner ear problems and persistent head pain. For the next half-dozen years, he went from hospital to hospital and country to country, seeking inexpensive medical care. From Yemen, he traveled to Jordan and then to Pakistan. Eventually, an acquaintance told him about the healthcare office of a Pakistani aid worker living in Afghanistan. Seeking this aid worker, he found himself in Afghanistan in late 2001, just before the 9/11 attacks and the American bombing raids against the Taliban.

In his early years at Guantánamo, Adnan was given no chance – judicially or administratively – to challenge his “enemy combatant” status. Then, after we filed a habeas petition on his behalf in late 2004, the military convened a “combatant status review tribunal” for him, hoping to persuade the courts that he was being afforded the kind of due process that would make judicial supervision of his case unnecessary. The process was a sham.

By regulation, any detainee’s guilt – that is, his status as an “enemy combatant” – was presumed. He would not be shown any of the classified evidence against him. Although I was already Adnan’s lawyer, I was not allowed to participate in the hearing. Instead, he was provided a “personal representative” to assist him. The personal representative was to be a military officer who would have no confidential relationship with Adnan. Any officer who also happened to be a lawyer was forbidden by regulation from serving as a personal representative.

His personal representative met with him for 85 minutes in advance of the status hearing. Unbeknownst to Adnan, he then wrote an unsolicited letter to the president of the tribunal, warning that Adnan “does not answer questions,” had “clearly been trained to ramble as a resistance technique,” and was “likely to be disruptive during the Tribunal” (Anonymous 2006: 1).

A hearing is unlikely to go well when your own counsel acts as an unsworn witness against you. And so it went for Adnan. When the tribunal president, through a translator, accused him of being associated with “al Qaeda,” Adnan answered that he was not from al Qaeda, but rather from Orday City in Yemen. Convinced that Adnan was playing games, the tribunal president moved on, listening to Adnan’s pleas for the tribunal to gather the medical documents that would prove why he was in Afghanistan in 2001. The president denied his request as “irrelevant.” Predictably, the tribunal concluded that Adnan was properly detained as an “enemy combatant.”

Had he been accompanied by a lawyer, things might have gone differently. A lawyer might have explained that Adnan was not being evasive in denying he was from al Qaeda. It turns out that al Qaeda is a city in the Baladiyat Adan region of Yemen – at 13 degrees north latitude and 44 degrees east longitude – in Adnan’s home country, but not particularly near where he lived in Orday City. More importantly, a lawyer would have explained how to procure the medical documents Adnan requested and why they would support his story.

In fact, we found them easily. And several years later, in habeas proceedings before a federal judge, the documents helped establish to the court’s satisfaction that Adnan was not, in fact, an enemy combatant.

But back in 2004 and 2005, the prospects of a habeas hearing for any of the Guantánamo detainees were fading quickly. Notwithstanding the Supreme Court’s Rasul decision in favor of the detainees, Congress exploited popular sentiment and passed the Detainee Treatment Act of 2005, which purported to strip the federal courts of statutory authority to hear the detainees’ habeas cases. After more battles in the courts, the Supreme Court again ruled in our favor, holding in Hamdan v. Bush that Congress was unclear about whether its statute was intended to have retroactive effect, and that therefore pending habeas cases could proceed. Congress responded by passing the Military Commissions Act of 2006, which made their intentions on that score crystal clear by stating unambiguously that the federal courts were no longer to entertain habeas petitions from any Guantánamo prisoner.

The prospect of our actually getting our day in court was bleak. Guantánamo was increasingly looking like a legal black hole, an instance of the “state of exception” so smartly described by Judith Butler (2004: 50–100) and Giorgio Agamben (2005: 4).

It was in this context that we developed a plan to publish the detainee poetry volume in late 2006. The idea for the project initially occurred to me while reading a book of poems written by a US infantry team leader during his deployment to Iraq. As I made my way through Brian Turner’s Here, Bullet (2005), I was struck by how the soldier-poet opened himself to the strangeness of the Mesopotamian war zone, shoring fragments from the battlefield to build poems of stillness and beauty.

In “In the Leupold Scope,” for example, Turner imagines a soldier on a rooftop, peering through a spotting scope to witness an Iraqi woman hanging laundry from a clothesline:

She is dressing the dead, clothing them

as they wait in silence, the pigeons circling

as fumestacks billow a noxious black smoke.

She is welcoming them back to the dry earth,

giving them dresses in tangerine and teal,

woven cotton shirts dyed blue.

(Turner 2005: 7)

I lingered over these lines, considering how the poem suffused the most quotidian of tasks – hanging laundry – with mythic meaning; how the position of the soldier, peering from a distance at a familiar but strangely archaic ritual, paralleled that of the poet; and how the poem itself served the same function as the spotting scope, as a tool for bridging space and cultural distance. As I thought about how the poem made me feel closer to both the soldier and the Iraqi laundress, I saw how poetry could create a space in which empathy flourishes and in which knowledge, fear, and desire can be shared.

Just weeks earlier, I had been reading for the first time two poems sent to my colleagues and me from our clients at Guantánamo. They were being held at a “secure facility” in northern Virginia, where all of the classified documents in our habeas cases were stored. The first poem I saw had been sent to us by Abdulsalam Al-Hela, who had written his verses after an extended stint in an isolation cell. The poem was a moving cry about the injustice of arbitrary detention and at the same time a hymn to the comforts of religious faith.

The second poem, called “The Shout of Death,” was composed by Adnan. It cataloged some of the abuse he had suffered at the hands of his American captors. I cannot comment more on these poems, because the Pentagon has refused to declassify them and release them to the public.

While I found these poems interesting on a first reading, it was not until after my experience with Here, Bullet that I realized my clients, through their poetry, were engaged in much the same project as Turner – offering up to their audience an opportunity to connect with another person about whom they knew little. Their poems, in short, created a space for empathy and the possibility that, if they were published and shared, the American public in particular might begin to see these detainees not as faceless “terrorists,” but instead as individuals who deserved a chance to prove they had been caught up in a Kafkaesque nightmare. I queried other lawyers and soon learned that there were literally dozens of amateur poets at Guantánamo, many of whom had shared some of their experiences with their lawyers in verse.

The detainees’ lawyers decided to publish the volume because, as late as 2007, we were increasingly unsure whether we would ever get the chance to tell our clients’ stories in the venues that we as lawyers knew were most appropriate – in legal briefs and in oral arguments before a civilian judge in a public trial. Some of us were concerned that publishing the poetry volume was a tacit admission that the rule of law was failing us, but we were desperate to find alternative ways to speak out, to assert our clients’ innocence, and to affirm their essential humanity.

As a consequence of the restrictive context in which the volume was assembled, Poems from Guantánamo inevitably suffered from some flaws. It was not a complete portrait of the poetry composed at Guantánamo, largely because many of the detainees’ poems were destroyed or confiscated before they could be shared with the authors’ lawyers. The military, for instance, confiscated nearly all 25,000 lines of poetry composed by Shaikh Abdurraheem Muslim Dost, returning to him only a handful upon his release from Guantánamo. “Why did they give me a pen and paper if they were planning to do that?” Dost asked a reporter after his release. “Each word was like a child to me – irreplaceable” (Aizenmann 2005: A19).

In addition, the Pentagon refused to allow most of the detainees’ poems to be made public, arguing that poetry “presents a special risk” to national security because of its “content and format” (Anonymous 2006: 1). The fear appeared to be that the detainees would try to smuggle coded messages out of the prison camp. Hundreds of poems therefore remain suppressed by the military and will likely never be seen by the public. In addition, most of the poems that were cleared were in English translation only, because the Pentagon believed that their original Arabic or Pashto versions represented an enhanced security risk. Because only linguists with secret-level security clearances are allowed to read our clients’ communications, it was impossible to invite experts to translate the poems for us.

Notwithstanding these shortcomings, the volume’s publication was nonetheless a popular success. For a time it was the bestselling poetry anthology in the nation. It has been translated into more than a dozen languages and published around the world. The poems have been read at innumerable antiwar and “close Guantánamo” rallies. Actors have recited the poems onstage, artists have incorporated the poems into diverse installations, and composers have put the poems to music.

The volume was reviewed and discussed in a variety of mainstream newspapers and journals, typically receiving positive notices. To be sure, the poetry was not uniformly praised. A review in the New York Times Sunday Book Review, for instance, suggested that many of the poems were “vague” and “conventional,” and that one in particular held “exactly zero literary interest” (Chiasson 2007: BR6). A reasonable enough critique, though the critic’s further speculation that the entire volume might actually be an elaborate Pentagon psy-op – “‘proof’ that dissent thrives in the cells of Guantánamo” (Chiasson 2007: BR6) – was more than passing strange.

Over the years, the volume has also been the subject of attention from scholars of philosophy, literature, and political science, as well as from a variety of interdisciplines. Much of the academic commentary has been provocative, taking the poems as a jumping-off point for rumination about aesthetics and carceral writing. And to be sure, I believe that Poems from Guantánamo is a noteworthy contribution to human rights literature for all of these reasons and also, more simply, because a number of its poems are haunting and beautiful, rewarding close reading.

Some are moving descriptions of despair, such as Jumah al Dossari’s haunting “Death Poem,” in which he asks his readers to

Take my blood.

Take my death shroud and

The remnants of my body.

Take photographs of my corpse at the grave, lonely.

(2007: 32)

These lines are more than a memento mori. In his poem, Dossari envisions his dead body as an incarnate indictment of an American society that would allow innocents to suffer meaningless torment. His catalog of despair must, he writes, be sent to the “judges” and “the people of conscience,” so that they might

bear the guilty burden, before the world,

Of this innocent soul …

Of this wasted, sinless soul,

Of this soul which has suffered at the hands of the “protectors of peace.”

(Dossari 2007: 32)

This poem is particularly unsettling when the context in which it was drafted is taken into consideration. By the military’s own count, Dossari attempted suicide more than a dozen times while at Guantánamo, including once when his lawyer returned from a break in their meeting to find him hanging from his cell, blood pooling at his feet from a gash in his arm.

Other poems gain power through the urgency of their message. “Hunger Strike Poem,” for example, by my client Adnan, is an attempt to supplement in verse his first-hand accounts of the pain of hunger striking. Over the years, Adnan would frequently decline nourishment for months to protest his continued incarceration without charge or trial. He often described to me the force-feeding he endured twice daily, which included being strapped into a restraint chair and having a plastic feeding tube inserted through his nasal passage and into his stomach. The experience, he said, was like having a “dagger shoved down your throat.” In his poem, Adnan wryly describes the soldiers who subject him to this torturous ritual as “poets” in their own right:

They are artists of torture,

They are artists of pain and fatigue,

They are artists of insults and humiliation.

(Latif 2007: 52)

In the last analysis, his poem asks the same basic question as Dossari’s: “Where is the world to save us from torture? / Where is the world to save us from the fire and sadness?” (Latif 2007: 52).

It is of course impossible to tell whether the course of the habeas litigation was affected in even a small way by publication of Poems from Guantánamo in 2007. But in the summer of 2008 the Supreme Court issued yet another blockbuster ruling in a Guantánamo case, Boumediene v. Bush, holding that the Military Commissions Act that was passed by Congress in 2006 was an unconstitutional suspension of the writ of habeas corpus. The upshot was that our clients would indisputably be entitled to their day in court.

Over the next several years, scores of detainees were afforded habeas hearings. Although the government’s burden was exceedingly low – it only had to prove it was more likely than not that the detainee was associated in some way with the Taliban or al Qaeda – in the majority of cases, the detainees were victorious. For a time, the acquittal rate hovered around 75 percent, roughly matching the error rate discovered by Article 5 tribunals during the First Gulf War, though it is a bit lower now. Some of those victorious detainees have been returned home. Some have had their habeas grants reversed and remanded for further consideration. And some remain in limbo at Guantánamo.

Adnan was initially one of the victors. In 2010, more than eight years after he was brought to Guantánamo, the judge granted the writ and ordered him released. In his ruling, the judge dismissed as unreliable the single piece of evidence the government had introduced against him – an error-ridden, hearsay report, drafted by an unnamed government agent in the fog of war, stating that Adnan had “confessed” to working with the Taliban.

But the government filed an appeal and won a do-over, instructing the district court judge to assume the veracity of the anonymous report. The Supreme Court refused to hear our petition for review.

Not long after we told him the news, Adnan took his own life in his isolation cell in Guantánamo.

For Adnan, who had to wait eight years for his day in court, the law failed to provide its promise of justice.

I mourn Adnan’s death. I am grateful to have his voice preserved in the poems he composed, and I continue to hope the poems he and the other detainees wrote for the world, memorialized in a slim volume, will help prevent Guantánamo from remaining a prison above the law.