The War in Court: Inside the Long Fight Against Torture by Lisa Hajjar (review)

Abstract

Reviewed by: The War in Court: Inside the Long Fight Against Torture by Lisa Hajjar Rebecca Root (bio) Lisa Hajjar, The War in Court: Inside the Long Fight Against Torture (University of California Press 2022), ISBN 9780520378933, 376 pages. Lisa Hajjar was already an established expert on the sociology of torture when the United States (US) began torturing detainees in response to the terrorist attacks of September 11, 2001. For over three decades, she has explored the legal, cultural, and ethical issues around torture, interviewed hundreds of lawyers, and witnessed these questions play out in courtrooms around the world. Her research has included more than a dozen trips to Guantánamo Bay. On one level, The War in Court details the relentless efforts of lawyers—both military and civilian—to uphold the rule of law in the face of a US policy endorsing interrogation under torture. Lawyers like those at the Center for Constitutional Rights were focused on the rights of the detainees they were defending, but government-appointed judge advocates general (JAGs) were equally appalled by the establishment of military commissions intended to allow evidence extracted under torture, in contravention to all domestic and international legal norms and obligations. All took issue with the opinions that had been offered by government lawyers to justify the torture that reshaped America's national security policy from 2001 to 2006. In the early chapters, Hajjar deftly walks the reader through the jawdropping revelations of those years: the faulty legal memos, the sickening photographs from Abu Ghraib, the Kafkaesque Guantánamo Bay, the black sites, the waterboarding, walling, force-feeding, and more. Those moments have been seared into the memories of human rights scholars, though perhaps they are fading from public memory or, worse yet, seamlessly incorporated into it. Hajjar reminds us of the key legal victories—from Rasul v. Bush in 2004 to Hamdan v. Rumsfeld in 2006 to Boumediene v. Bush in 2008—but also of the many failed arguments lawyers advanced in these years. Her sociological training leads her to explore the community of lawyers who came together to wage controversial struggles over many years, enduring constant delays and setbacks, but always working for the rule of law and reaffirming one another's sense of the duty to uphold it. While scholars, detainees, and human rights non-governmental organizations played crucial roles as well, it is the lawyers who are at the heart of this analysis. Though American courts failed to hold the perpetrators of these crimes accountable, departing from the trends in Europe and Latin America, the lawyers in these cases were able to use even the cases they lost to forge new legal bulwarks in favor of detainees' rights. Hundreds of Gitmo detainees were released without charge, and despite the government's extensive efforts to keep secret [End Page 733] the details of detainee mistreatment, the truth came out. But juxtaposed to that story of the rebuilding of the legal norms against torture is a second, more tragic story. As the Bush and Obama administrations tried to minimize the damage to the US' reputation resulting from revelations of detainee torture, they shifted policy by replacing detention of suspected terrorists with drone strikes against them. Killing thousands of suspected terrorists in countries with which the US is not at war raises at least as many ethical and legal questions as torture does but has failed to generate the same level of public outrage or judicial traction. The chapters on the Obama administration are particularly compelling, as Hajjar details how Obama's strong stance against military commissions and promises to close Guantánamo Bay soon failed. Because so many in Guantánamo had been tortured, Obama faced a troubling quandary: accept that the use of torture rendered fair trials against the detainees impossible and set them free or allow new military commissions to proceed with prosecution. The administration opted for the latter. As a candidate, Obama had pledged to hold torturers and the policymakers who enabled them accountable. As president, he decided to "look forward as opposed to looking backward."1 Indeed, whistleblowers exposing the crimes Americans committed as part of the war on terror were pursued much more vigorously...