The rule of law was an abstraction for Kristine Huskey until shortly after September 11, 2001, when she was approached by Kuwaiti families searching for their sons. As she helped the families crack the "huge wall of secrecy and silence" erected by the U.S. government - a task that eventually led her to the detention center in Guantanamo Bay, Cuba - Huskey said she began to realize why the rule of law is so important. 

"Guantanamo was an eye-opener," said Huskey. "It made me realize what I'd been fighting for...why we talk about having principles. I met real people, and it struck me that the rule of law affects real people...people who have brothers, sisters, parents and children. And [those people] can get lost, wrongly charged, wrongly detained and tortured."

Huskey has been teaching and running a legal clinic for a number of years, and, as a result, her concerns about issues of privacy, detainment and torture have multiplied. 

Regarding privacy, she noted that while government officials imply that surveillance efforts affect only al Qaeda and terrorists - "sometimes they say 'suspected' terrorists, but they often say just terrorists" - they are also wire-tapping and mining data on American citizens and legal residents. 

"That's everyone in this room," Huskey said, reeling off a list of subscriber information, call records, reading lists, emails, medical records and financial data available to the government. "Is anybody shocked by this?

"Some of you will say, 'Why should you care if you're not committing some crime?'... But this is America! Nobody should be getting my financial information."

Another issue under examination at the legal clinic is the government investigation of financing and material support for terrorists. Among the Muslim individuals and groups investigated and charged so far are a number of charities that are completely innocent.  "It's not until they're bankru,pt and their office is shut down," she said, "that they are finally vindicated."  

In discussing the debate over torture, an issue she says would have never been debated seven years ago, Huskey posed several scenarios to the audience and asked for a "gut check."  Which scenarios, she asked, called for torture to save innocent lives? 

The first scenario, featuring a kidnapper who knows the location of a hostage whose air supply is running out, inspired little debate. "Who would torture a kidnapper? I would!" said Huskey.  But in domestic cases like these, she pointed out, the law is lenient. Law enforcement officials are already protected by a doctrine of necessity that holds that torture is justifiable if it avoids greater harm. 

In the second scenario, Huskey asked members of the audience if they would torture a terrorist who has planted a bomb set to go off in 24 hours in midtown Manhattan. Who, she then asked, would change their answers for a third scenario: that of a known terrorist alleged to have planted a bomb? 

"What about someone you think knows where the bomb is planted?" she continued.  "Someone you think knows about the bomb plot? Or someone you think is associated with a group that knows about the plot?" 

When similar scenarios are proposed to members of the U.S. military, Huskey said, one third of military respondents say that they would torture to save a fellow soldier's life, and one third would torture to gain information about insurgents. 

Huskey said that when she first began representing Guantanamo detainees, she thought, "It's me against the government." But she soon realized that members of the military were strongly opposed to some administration policies. "They wanted the Geneva Conventions applied. They didn't want a Guantanamo."

"But we had these civilians at the top making the rules, who'd never been to war," Huskey continued. "Civilians like Bush, Cheney and Rumsfeld, sitting back in D.C., saying 'These guys are the worst of the worst...Kill these guys!'" Issued by a chief commanding officer and combined with lack of training and chaotic circumstances, she explained that such a pronouncement easily leads to abuse.

One reason the U.S. military wants to apply the Geneva Conventions is to protect its own soldiers, said Huskey. But another reason is that officers worry, "How will we be viewed if we don't take the high road?"  She praised Sen. John McCain for articulating that principle in his statement, "It's not about who they are, it's about who we are."

When questioners suggested that torture is justified when the enemy places a different value on life, Huskey responded, "Okay, let's say 'they' have different values. The question is, Who are 'they'?. You need a good system to figure out who you should be detaining, and that system should probably not include torture. [Or are] you are going to torture [innocent] people too?  Because you don't know the difference!"

"Capturing known terrorists  is relatively rare," Huskey emphasized. "Are you going to make policy based on a rare occasion? Or make policy based on the more common occurrence, which is picking up a lot of people trying to get information?"

Huskey quoted from a 2005 editorial by Zbigniew Brzezinski, President Carter's national security adviser, in which Brzezinski characterized the administration's "War on Terror" mantra as not only meaningless but damaging.  By selecting a term that is deliberately vague, said Brzezinski, the administration is able to instill a culture of fear and blur the lines defining the enemy and the geographic context of the war. “They say it’s a new kind of war; we're facing a new kind of enemy," said Huskey. "That allows us to pick up anybody, anywhere in the world.” 

Accounts conflict, she noted, regarding the worth of the intelligence that has come out of Guantanamo. But she maintained that Guantanamo has almost certainly helped to create a new generation of terrorists, and that much time has been wasted tracking down useless intelligence. To round up people in such a murky situation rarely results in capturing terrorists, she said; it serves only to create the next threat.               

Asked if there are instances of successful torture, Huskey recommended a book entitled "Torture and Democracy," in which author Darius Rejali attempts to rebut instances of torture that allegedly worked. In one of the book's examples, a Filipino tortured for 67 days finally divulged information about an airline bomb plot.      

"Sixty-seven days!" Huskey exclaimed. "Maybe it wasn't such an emergency!"

Huskey concluded by recommending the creation of an independent commission of experts in constitutional law, military affairs and international relations to address issues concerning detainees. She described some of the severe conditions at Guantanamo, which have been likened to those at a maximum security prison. For the first two years, she said, detainees got 15 minutes of exercise twice a week; some did not see the sun for a month. They did without the Koran and any reading material for a year or more and could communicate only with guards and interrogators.

She reminded the audience that at a maximum security prison, such conditions are considered punishment for wrongdoers who have been tried and convicted in a rigorous process. At Guantanamo, there has been no such process; large numbers of detainees don’t need to be there. Only a relative handful - less than five percent - were picked up by U.S. military forces for actual violence against the troops. The majority were picked up by local authorities for associating with suspected terrorists.

"These are extremely harsh conditions for people who believe they are innocent and want nothing more than to prove it," Huskey said. "These are real people, not enemy combatants. Their kids are growing up. Imagine if they’re innocent!”  She noted that Guantanamo has been overrun by hunger strikes and more than 40 cases of attempted suicide, all while detainees continue to await a simple trial. "Are we just warehousing these people?" she asked. "Until when?  And for what?"

While restoring checks and balances and upholding democratic institutions must be a priority, Huskey conceded that the task must be balanced with a commitment to safeguarding American citizens. "The real question," she said, "is how do we get to the threat and really say who we are?"

March 5, 2008 The Jepson School of Leadership Studies