On Terror and Torture: A Talk with Baher Azmy

Lawyer with the Center for Constitutional Rights will speak at Duke next week

Baher Azmy

As legal director for the Center for Constitutional Rights, Baher Azmy has challenged policies related to indefinite detention, extraordinary rendition and torture and has authored legal briefs submitted to the U.S. Supreme Court.

He will be the keynote speaker at Duke International Comparative Studies Program's upcoming conference "Movements and Exchanges in an Unequal World: ICS at 40," Feb. 28 and March 1.

Here, he talks about his work.

How did you come to work on legal defense related to "war on terror" cases?

Prior to joining the Center for Constitutional Rights as legal director, I was a clinical law professor at Seton Hall Law School. After the Supreme Court in Rasul vs. Bush ruled that detainees were entitled to challenge the legality of their detentions through habeas corpus -- and, critically, could have access to lawyers -- CCR started the process of matching individuals who they knew were detained in Guantanamo in 2004 (the administration would not make names public, so such knowledge was based on families of detainees reaching out to human rights NGOs). 

As a constitutional law professor, Muslim American and concerned citizen, I was deeply alarmed by the Bush Administration's claim that it could hold individuals indefinitely and incommunicado in a prison beyond the law. I was assigned to represent Murat Kurnaz, a German resident of Turkish citizenship, who of course had no idea he had a lawyer. After visiting with him and his family, what started out as an effort to vindicate an abstract idea about constitutionalism and due process turned powerfully into a personal struggle to free this young man from the indignity, isolation and horrors of this brutal prison camp.

Why do you think there is so little concern in the U.S. for extraordinary transformations in legal policies and practices in this realm?

This is an important and paradoxical observation that defies easy explanation. Among the various factors contributing to public apathy about this transformation are: first, a failure to apprehend the seriousness of the transformation. To be sure, some of the very worst excesses of the Bush Administration's first term (CIA black sites, numerous extraordinary renditions, incommunicado, lawyer-less detentions in Guantanamo) have been largely abandoned.

But the fundamental framework supporting those excesses remain: resort to executive authority to justify actions against suspected terrorists, where the executive branch unilaterally determines who is the enemy and where the battlefield exists to justify military action. It's a boundless power and justifies the continuing operation of Guantanamo, as it does endless drone strikes against thousands of foreign nationals (and U.S. citizens) in places far outside any conventional battlefield. Even though we appear to inhabit this extra-constitutional realm, the paradox is it feels less problematic by virtue of its very durability and sustainability. Obama has normalized the national security state, and I dare say, put a pretty (read: reasonable) face on it. Progressives either trust him or delude themselves into thinking his practices are fundamentally different from his hated predecessor.

A second critical factor contributing to the apathy is that these transformations have not affected the vast majority of Americans -- they are reserved for exotic foreign nationals, Muslim men in Guantanamo, or immigrants lurking in the shadows. 

What are the limits of working through the legal system on behalf of the most marginalized and least powerful: the indefinitely detained, prisoners, poor people, undocumented people, and so on?

The U.S. legal system is not designed out of concern for marginalized and alienated persons. Indeed, because such persons are regularly dehumanized, in fundamental ways society and our legal system is not genuinely eager to afford them the status of having "rights" that are enforceable against the status quo. It is not to say that courts cannot be made to appreciate that they have rights; but to transform prisoners, detainees, immigrants and the poor into three-dimensional humanized persons requires an enormous amount of effort in the public and legal sphere.

What are the rewards related to such work?

Being part of a movement for social justice; learning lessons about social justice and humility from clients and other affected persons. Being morally and politically engaged and resisting feelings of powerlessness in the face of injustice.

What do you think we should look for in the final years of the Obama Administration in terms of rights, the "war on terror" and security issues?

I think a continued expansion of extra-constitutional powers that skirt constraints set before by courts and Congress. So, for example, rather than detain individuals in Guantanamo, the Obama Administration will expand proxy detentions in foreign countries where courts have little or no authority. I think there will be a continued -- and dangerous -- expansion of drone strikes in foreign countries from Pakistan and Yemen to the Horn of Africa and any place the U.S. can operate in secret to preemptively strike suspected terrorists. I also think there will be a continued effort to crack down on whistleblowers, leakers and others who cross the administration's deliberate attempt to shroud its work in secrecy.