Lisa Hajjar, University of California – Santa Barbara
In our Meet the Book Author series, the Journal of Law and Society and the Centre of Law and Society provide first-hand accounts from authors who have recently contributed notable socio-legal books to their respective fields. In this post, we hear from Lisa Hajjar, University of California – Santa Barbara, who’s new book The War in Court: Inside the Long Fight against Torture was published in October 2022 with University of California Press.
What is this book about?
The War in Court traces the history of the fight against US torture in the context of the “war on terror” and the complicated legacy it has left. In the immediate wake of the 9/11 terror attacks, top officials in the Bush administration persuaded themselves that the only way to get “actionable intelligence” from nefarious and shadowy enemies would be to capture people and interrogate them using violent means. To keep the implementation of this plan secret, detainees would have to be held incommunicado. This scheme, which its intellectual authors called “the new paradigm,” was premised on the idea that anyone taken into US custody abroad was a terrorist and, thus, was rightless. But because the United States fancies itself a nation of laws, in order to “legalize” forced disappearance, coercive interrogation tactics, and long-term detention without trial or even status review hearings, government lawyers reinterpreted federal laws and US treaty obligations. The combination of secrecy and torture-permissive legal reasoning created a situation in which the only people who could fight the government over its prisoner policies were lawyers.
This book is about the hundreds of lawyers—military and civilian, Democrats and Republicans, corporate and human rights and small firm private practice lawyers, law professors and their students—who felt professionally obligated and/or ethically motivated to take action to defend the rule of law that the torture policy so egregiously violated. The first case, filed in February 2002, challenged secret detention at Guantánamo; Rasul v Bush brought the “war on terror” into the courts and it was the first salvo in what became a war in court.
I tell the origin stories and complex consequences of the major cases that made it to the Supreme Court: Rasul, Hamdan v Rumsfeld, and Boumediene v Bush. I track the collaborative efforts among lawyers and human rights practitioners to pursue legal accountability for perpetrators and abettors of the gross crime of torture and justice for victims, both in US and foreign courts, most of which were unsuccessful. And I take readers into the Guantánamo military commissions to understand that travesty of justice spanning four US administrations. The final chapter focuses on the 9/11 case, which began in its first iteration 2007 and continues to the present. I explain that this case has not moved beyond the pretrial phase because the five defendants were held for years in black sites and brutally tortured by the CIA, yet the government continues to insist that what happened to them between their capture between 2002 and 2003 and their relocation to Guantánamo in 2006 remains a state secret. This case provides the best evidence that torture and justice can never be reconciled. It also proves that there is no “after torture.”
Why did you write it?
I became interested in torture and the law when I was a graduate student doing my PhD dissertation on the Israeli military court system in the West Bank and Gaza, which became my first book, Courting Conflict. In 1987, several years before I began fieldwork, Israel became the first government in the world to publicly authorize torture, albeit euphemized as “moderate physical pressure,” on the claim that it was “necessary” to combat “hostile terrorist activity,” which encompassed not only Palestinian violence but all forms national activism and political resistance to the occupation. Israel’s control strategies over Palestinians relied on coercive interrogations in order to get confessions that could be used to prosecute, convict, and imprison them. Israel, at that time, had the largest per capita prison population in the world. Part of my research focused on the battles that Israeli human rights lawyers were waging throughout the 1990s in the High Court of Justice to end the authorization of torture, which resulted in a partial victory in 1999 when the Court issued a ruling precluding the “routine” use of coercion.
By the time the US “war on terror” started, I was already primed to see clues of torture, despite that the lid wasn’t blown on the secrets of US prisoner policies until 2004. Many—indeed most—of the hundreds of lawyers I interviewed for this book were novices to the problem of torture when they started. They got their training on the job.
How did you go about doing this research?
In 2004, I began contacting lawyers and legal organizations involved in cases challenging the government’s prisoner policies and, after Rasul, those who signed on to be habeas counsel for Guantánamo detainees. I interviewed them, either in person or by phone or Skype (the precursor of Zoom). But I was frustrated that I couldn’t go to Guantánamo to observe legal battles in person—or so I thought. In 2010, a psychologist friend who was an expert witness for the defense in the military commission case of Omar Khadr (the first person to be put on trial by the Obama administration) suggested that I could go as a journalist. And that’s how I went. I made fourteen trips to Guantanamo, the last in January 2020 when the two psychologists who designed and ran the CIA torture program testified in the 9/11 case.