The Gitmo Files and WilmerHale

On Sunday, four media outlets published stories about the release of over 700 classified documents relating to Guantanamo Bay, and the practices there between 2002 and 2009. The coverage from the Guardian is the most thorough and arguably most scathing. The New York Times is rigorous and fair but also ironic (witness the senior jihadist who promotes impotence, the better to fight jihad, or the prisoner who, upon his release from Gitmo, heads to Libya to support the U.S.-allied rebels). The Washington Post and NPR also do a fine job elucidating what’s happened down there over the last 10 years, and why. But for all it says, the coverage (mostly) boils down to this: Many people should have never been imprisoned; of those who were and then freed, some joined (or rejoined) terrorist cells; and because of this second group, the 172 individuals remaining at Gitmo will not be released soon, and may never be released.

These points are very familiar to Rob Kirsch. A partner in the Boston law office of WilmerHale, Kirsch was one of the lead attorneys in the Boumediene v. Bush case, a case in which the Supreme Court ruled in 2008 that the Military Commissions Act did not give the government the ability to strip habeus corpus rights from prisoners held at Guantanamo. It was the first major victory for defense lawyers and their Gitmo clients. Kirsch and other WilmerHale attorneys have over the years represented six Algerians accused of ties to terrorist groups. Because of the Supreme Court’s 2008 decision, five have been freed. (He’s very limited in what he can say about the sixth client.)

Kirsch told me that the revelations within Sunday’s trove of Gitmo files don’t necessarily surprise him. The Bourmediene case relied on “flimsy” evidence, he said in an interview: second-hand allegations that in some cases came from less-than-scrupulous sources. But the Gitmo stories from yesterday also touch upon the enduring pain of the place. Because Congress and President Obama have not agreed upon terms to close Guantanamo, Gitmo will stay open for years to come, if for no other reason than its legacy is too appalling for many countries to agree to accepting prisoners, regardless of their innocence. For Kirsch, that’s the cruelty of Guantanamo: The reputation of the prison ensures that some, even the innocent, will never leave.