Transcript: Jonathan Hafetz on GITMO lawyers

Discussing the military and civilian lawyers smeared by Liz Cheney and Bill Kristol

Published March 3, 2010 2:04PM (EST)

To listen to this discussion, go here and click PLAY on the recorder at the bottom:

Glenn Greenwald: My guest today on Salon Radio is Jonathan Hafetz of the ACLU, and he has a new book which he has co-edited, along with Mark Denbeaux of Seton Hall Law School, entitled The Guantanamo Lawyers: Inside a Prison Outside the Law, and the book essentially contains numerous personal narratives from attorneys who have represented detainees at Guantanamo as well as places like Bagram and secret CIA prisons known as black sites, and is really intended to convey the experience of lawyers who have been working for basic constitutional liberties during the war on terror. Jonathan, thanks so much for writing the book and for taking the time to talk to me about it.

Jonathan Hafetz: No problem. Glad to be here.

GG: I think one of the things that often gets overlooked in discussions about the war on terror, and I know it's true for the discussion that I have, is the discussions tend to be very negative, understandably so about the civil rights that are being abused and the Western conceptions of justice that are being trampled upon. But there are some positive aspects to things that have happened, some actual heroes, people who have been whistle-blowers, and defiant officials within the government who have stood up when they were opposed to things.

There has been some good reporting, detainees who have fought heroically. But one of the untold stories is the story of lawyers who have oftentimes, usually for free, and at some personal cost, represented essentially the most despised and stigmatized group, which has been war on terror detainees accused of being terrorists. Talk generally about who these lawyers are, what are their backgrounds, where do they come from, what their motives were - just kind of generally describes what the pool of people are who have been waging this battle.

JH: What's remarkable, Glenn, is the breadth of people who have gotten involved. The types of lawyers and the backgrounds that they come from - it's lawyers who come from very disparate backgrounds, there were lawyers which were very involved in, for example, death penalty cases, lawyers from public interest backgrounds, public interest organizations. But also lawyers from the nation's largest and most prominent law firms, from across the country, as well as a great range of lawyers from smaller firms, even solo practitioners, which have sacrificed tremendously in getting involved in this litigation and working pro bono, as well as lawyers from academia and lawyers from federal defenders offices. It really is the gamut of the legal profession that has come together to defend and fight for the rule of law in what I think is the greatest human rights abuse by the United States of this generation.

GG: One of the things you mentioned was that there were a lot of sacrifices made by many of these lawyers - I would assume that's probably true for most - the climate improved a little bit, or even more than a little bit, if you look at the earliest days in the aftermath of September 11th when there was very few people willing to take these cases, and as the years progressed it became a little bit more acceptable to do so, but even still to this day, if you're representing as a lawyer somebody who's accused of being a member of al-Qaeda, or the worst of the worst as Guantanamo detainees are called, or invisible people in Bagram or CIA black sites, there is still a real stigma involved. Talk about some of the sacrifices that have been made, the types of sacrifices that have been made by these lawyers who are representing these individuals.

JH: It's a tremendous sacrifice - it's done pro bono, all of the work, there's no one who is getting paid for the work, and I think that's a sacrifice for any lawyers, particular sacrifice for lawyers who come form smaller firms or solo practice, where if you don't have the same type of resources that large law firms have or who might public interest organizations are not who generally does pro bono all the time anyway. The litigation, in addition to the amount of time and the thousands of hours people put in it, it's just it's an expensive and time-consuming process to go to Guantanamo, and to visit clients the Bush administration located prisoners at Guantanamo for that purpose, to make it harder for detainees to access courts, to make it harder for lawyers to go down and to meet with clients, and even after lawyers we won the right of access to clients in 2004 in the Russo v. Bush decision, the Bush administration continued to throw obstacles in the way of lawyers trying to make their life difficult.

GG: One of the principal arguments made by people who have opposed the executive power abuses of the United States over the past 10 years is that by allowing the government the unchecked power to declare somebody a terrorist and then to treat them accordingly, whether that means rendering them or torturing them, or eavesdropping on them, or putting them in a cage indefinitely, or even assassinating them, that essentially what it does is it risks innocent people being punished and swept up in this because there's no real check on the accusations and that means there's a high probability of error or abuse.

For a lot of people I think that is persuasive, on a theoretical level, but I think there's a sense that, well, it's probably not really the case that there have been any innocent people or many innocent people swept up in this framework, because, where there's smoke there's fire, and why would the government want to accuse people of being terrorists if they weren't really involved in terrorism. Talk about some of the specific cases that this book examines where it really did involve people who were not just treated in a way that was harsh or subjected to torture, but people who quite clearly were guilty of actually nothing, who had their lives ruined by these policies.

JH: There are a number of examples in the book of this and this is really in a sense the predominant reality of Guantanamo where it was sold to the public as the United States is holding the worst of the worst, but it really just a fabrication largely. One examples is the case of the leaders who are from the Muslim group from north-west China who were swept up in the chaos in Afghanistan and surrounding area after 9-11 when the United States simply detained people without providing any kind of process that the military normally provides to separate out who should be held and who should be released.

At the time we were dropping - this is explained in the book - we were dropping in essence dropping leaflets across in Afghanistan basically saying if you turn someone in, you would receive a bounty or reward that would be enough to feed you and your large family for a year and Donald Rumsfeld described it, the blanketing of the countryside with these leaflets like snowflakes falling in December. The leaders were among many who were sold to the United States for bounty, often people would sell them for the money or because they had a vendetta against another family or another tribe or group, and there was no process of error correction put into place. In fact, the civilian officials in Washington overrode the military, the normal military procedures that we've used in past armed conflicts to try to separate out who should be held and who should be released, and then once brought to Guantanamo you have abusive interrogations and the problem festered.

Another good example is an individual I represented named Mohamed Jawad who was discussed in the book. He is an afghan youth, a boy who was about 14 at the time, he was wrongly accused of throwing a grenade at a US military vehicle, was brought to Bagram air base in Afghanistan, tortured, and then sent to Guantanamo for more torture. He was held for about six years until finally a judge looked at his case and lo and behold, once there was going to be a hearing, he was sent home.

GG: That was case that you said you were personally involved in as a lawyer. I know that when I read about these cases and write about them, it's very different I think to avoid being really angry over the fact that we erected this system and purposely dismantled all of the safeguards that typically prevent or at least diminish significantly the likelihood that there will be innocent people put in prison having their liberties severely infringed. We took those away, we stripped them all away, and there were innocent people who ended up being - lots of them - having their lives devastated.

What is your own emotive when you work on these cases, and your emotional reaction to it?  Talk about your personal experiences in being one of these lawyers who's had the opportunity to work directly with some of the victims of these abuses and what it's meant for you to be able to work on them.

JH: It's both, for lawyers it's a very difficult experience emotionally to have to represent individuals who have been wrongly held or held without due process for so many years, who have been abused, who've been separated from their families. The lawyers for so long served as the only real human link with the detainees. At the same time, I think it's a very valuable experience, a rewarding experience for so many of the lawyers to be able to actually know you're fighting that you believe in and fighting for the Constitution and for justice. It's a very long fight, and it's still ongoing and every time we win a momentous victory -and we've won three in the Supreme Court, on the Guantanamo detainee cases - the government has attempted to do everything in its power, by going to Congress, or just simply by obstructionism, to put more obstacles in the way of justice and due process.

GG: There was a speech that you gave that related to this book, which is available online, and I just want to read these couple sentences of what you wrote and ask you about it. You said, "But, caution, lest we focus on Guantanamo as a place, for Guantanamo is and always has been more than just a prison. It's reality lies not in brick and mortar, in steel walls, in concrete and wire, and its cold, forbidding and antiseptic environment. Guantanamo is a system, one of indefinite, open-ended, and boundless detention outside the basics guarantees of our Congress." Now, there's a lot of focus on Guantanamo the place right now as we talk about whether we're going to close it, whether we're going to relocate it. What motivated you to issue this caution; why is it important that we not focus too narrowly on Guantanamo as a place?

JH: A couple of things, primarily. First of all, there's discussion now, obviously since President Obama announced following his inauguration that he was going to close Guantanamo within a year; it's been delayed but the administration is still planning to close Guantanamo, but we're concerned about the idea that Guantanamo might close, but the prisoners might simply be moved to the United States for example, to Thomson, Illinois, which is the place that has been discussed, and how the same situation of legal limbo, being held basically without charge and without trial. The fact that Guantanamo, the system of holding people, detaining them effectively as criminals without giving them the rights that people accused of crimes receive, and just holding them indefinitely without a trial - it really doesn't matter where it happens, it's wrong anywhere, and I think there's a real danger that if Guantanamo is closed and the system is not ended, it will be institutionalized and the problems will be swept under the rug, and we'll have closed Guantanamo, but we won't have ended it.

Secondly, in addition to what's happening at Guantanamo, it's not the only place the United States has detained people indefinitely without charge and without trial. We're continuing to do that today at Bagram Air Base in Afghanistan, where we're seizing people not just from within Afghanistan, but from other parts of the world, places as distant as Thailand, bringing them to Bagram, and holding them not just without charge or trial, but without even any kind of judicial review. Again, this is a way that the Guantanamo system is being perpetuated outside of Guantanamo. So it's very important to view Guantanamo not just as a place, but as a new kind of detention system that's really inconsistent, fundamentally inconsistent, with our constitution and our values.

One of the most remarkable things to me is not just to the detainees, but to the families, to the wives, the children, the uncles, the brothers and sisters, without exception, the view that comes back is, well, if my loved one did something wrong, charge him and try him. Give the person justice, but to hold them indefinitely without charge or trial. And it's a universal response that I've heard, and it's just kind of amazing the United States, which has stood for that value for so long, has really lost its way.

GG: It was in the article that I thought was very interesting, from about two months ago, in The Washington Post, along those lines, that talk about an assassination program that the United States was implementing within Afghanistan, where it had compiled a list of people who we believed to be drug traffickers, who were using the proceeds of the drug trafficking to fund the Taliban, and have authorized the military or directed the military to kill those individuals, and officials of the afghan government objected vociferously on the grounds that it violated the rule of law and their political values to kill afghan citizens without charging them with a crime and providing an opportunity for them to contest the accusations against them. That's how universal and natural it is.

So let me ask you, just along those lines: a lot of the abuses your book talks about and were litigated were associated with the Bush administration, there was an op-ed in The New York Times from two or three days ago by John Bellinger who was the legal advisor to the Bush State Department for the second term. I don't know if you saw it, but the headline was More Continuity than Change, and it talks about how Obama had this flurry of executive orders in the first few days where he banned interrogation practices that had already been discontinued, and ordered CIA black sites close that were already empty, and that gave the impression that he was going to radically change Bush policies, and yet in policy after policy in the terrorism realm he has actually continued and embraced the same positions, which Bellinger says is a vindication of what the Bush administration did in the second term, at least.

How do see that issue in terms of continuity versus change with regard to these issues and whether things have substantially improved at least over the first year?

JH: I think it's been much more a story about continuity that about change. There's certainly been change at the level of rhetoric and of broad statements, the speech that President Bush at the National Archives in May...

GG: President Obama?

JH: That's right, President Obama, excuse me, gave at the National in May, about, the idea about human rights and due process being essential to our national security, and not being at odds with each other, is very different in the message for example that President Bush delivered in his September 2006 when he basically came before the country and defended torture and secret detention in announcing he was bring Khalid Sheikh Mohammed and other from CIA prisons to Guantanamo. So you have it's very different there, but at the level of what's actually happening in the policies, it's really much more a story about continuity, at least from the way things were when in the final years of the Bush administration, after some of the court decisions, and what's happening now.

For example, the Obama administration has perpetuated the idea that individuals can be detained indefinitely outside of the various limits of the law of war, battlefield-type detentions that have been permitted in the past, the idea that the president can seize people potentially anywhere in the world and hold them indefinitely based on allegations of really criminal activity. Also the use of military commissions, the Obama administration, after initially looking like it was going to abandon and bury the commissions, which is what it should have done, then revived military commissions and it looks like it's going to be using them to prosecute detainees from Guantanamo. That's perpetuating the second class justice system.

So I think those are two really key areas where we're seeing this continuity of the cornerstones of the Bush administration policy. Even one of the most important breaks, which was Attorney General Holder's decision to announce that he was going to try Khalid Sheikh Mohammed and the four other individuals who were allegedly responsible for 9-11 in federal court, giving them trials consistent with American justice and due process, it now seemingly back on the negotiating table, and any retreat from trying them in a federal court in the United States - whether it's in New York City or not is not the key issue - but any retreat from that basic proposition would really be a turn in a very remarkable and concerning way to the policies of the Bush administration.

GG: Yeah, I actually think that having announced civilian trials, and then reversing that decision under political pressure would probably be even worse than having just made the wrong decision in the first place, 'cause what it really would signal is that it's a surrender, it's a concession that they've lost that debate, and that the central framework of the Bush administration would then become the unchallenged bipartisan consensus about how these matter ought to be handled.

I just want to emphasize that it really is a great book; I think one of the things that is often missing from our political debates generally and definitely from our war on terror policy specifically is the human impact, both on the people who are victimized by it, but also the people who are, through great sacrifice, including yourself, working really tirelessly and endlessly to protect people's basic right and the Constitution and the book really conveys that in a very dramatic moving way, and I'm glad you edited it and produced, and I hope people read it, and I appreciate your taking the time to talk to me about it.

JH: Thank you, Glenn.


[Transcript courtesy of Thames Valley Transcribe]

By Glenn Greenwald

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