Democracy, Constitutionalism and the War on Terror – Amherst College – Speech Transcript

My name is Tom Dumm. I teach in the Political Science Department at Amherst College. I’m very pleased to introduce Michael Ratner who I m— late this morning, who is the most miserable president of the center of constitutional rights, and who’s going to speak to us momentarily about democracy, constitutionalism, and the war on terror. Dedicated to protecting and advancing the civil rights guaranteed by the U.S. constitution, and universal declaration of human rights, the leaders of the center use litigation pro-actively to further the cause of justice. From S— to Guantanamo Bay, he has been on the frontlines of just about every struggle for civil rights in this country since 1966. Michael has been the Sculley Rights Lecturer at Yale and a lecture of law at Columbia Law School. He’s worked at the Center for Constitutional Rights for most of his 27 years of practice. His other positions have included: special counsel to President Aristeed(?) for the prosecution of human rights crimes, instructor at Yale Law School, the international human rights law clinic, he served as president of the national lawyer’s guild, he’s been an instructor at NYU Law School in federal civil rights litigation, he has clerked U.S. District Court Judge Constance Baker Motley. He graduated from Columbia Law School in 1970 after being beaten at Columbia Law School in 1968.

Among his many honors he has won the Trial Lawyer of the Year Award, from the trail lawyers of public justice in 1995, and he was presented with an award of merit and told by the government of Bolivia in 1992. Among the books he has authored or co-authored are “Guantanamo: What the World Should Know,” “Against the War with Iraq: An Anti-War Primer,” “Che Guevara and the FBI: The U.S. Political Police Dossier on the Latin American Revolutionary,” “The Pinochet Papers: The Case of Augusto Pinochet in Spain and Britain,” “International Rights Litigations in US Courts.”

Among the many actions, Michael has led litigation under the war Powers Act, the Alien T— P— Act. He was the primary counsel in the case which forced the United States Government to close the camp for HIV government patients and refugees in Guantanamo Bay. 3 US Presidents have authorized the detention of foreigners at Guantanamo and Michael has fought them all. It goes back to the 1890s when Haitian immigrants were held there and now during on the War on Terror, when hundreds of Arab Muslims are detained in isolation with no legal rights. Last evening at dinner, a casual aside was mentioned that the center has never received as much hate mail as they have in the pursuit of justice for the detainees at Guatanamo. It occurred to me that now as in the past, an unfortunate measure of American heroism is the amount of hate-mail one receives, the number of threats and insults one absorbs for standing up for what is right.

Let’s be very clear. Michael Ratner is an American hero. And I’m honored to introduce him to you this afternoon. (applause)


I don’t know about the American hero part, but hey, thanks a lot. Now the hate-mail has changed on Guantanamo, it started with, Why do I invite the Taliban to your house and let them meet your children and things like that, to, now that we won the case in Supreme Court and having a dozen of the major law firms in the United States, working with us to represent detainees on the writ of habeas corpus in Washington and going down to Guantanamo, and that’s been a two and a half year change, when we began the case as I said at dinner, there was no one willing to help us, just some death penalty lawyers who were used to defending the most unpopular people in their communities and who understood the importance of some kind of hearing for people in Guantanamo Bay. Like I said, it shifted, it shifted by the time of the Supreme Court, and it is a lesson, I think, just in terms of that political shift, as to people getting very very nervous about fundamental core rights.

When Caroline spoke, she said, she tried to think of, coming up here we were all very depressed about the election and she said, “Well, the only person probably more depressed than I am is Michael. And of course Caroline and I had similar experience in terms of being radicalized to some extent, we were both at Columbia, and 67, 68, and 69, and which was a really transforming experience for me when the cops came on campus and beat the heck out of a lot of us. But, I don’t think Caroline’s right, when I left, the room shattered in a certain way, it doesn’t mean that we didn’t know, but it does mean that we have a long road ahead of us in that struggle to end that war and there’s going to be a lot of deaths between now and whenever that happens.

I used to always be at, certainly before the election, I used to say, well the New York Times calls us the second superpower, the people marching in the streets on February 15th, and that it’s still there, and it’s still right, and that’s still what we’re going to have to do, to organize, demonstrate, get into the streets and do what we can to end the occupation of Iraq. But it’s clearly going to be long and there’s going to be a lot of deaths on the way, and so it doesn’t, it really doesn’t, it just doesn’t, it feels extremely bad, I mean, to put it mildly. On the other hand, my area that I’ve been working on, of course, Iraq was one of my areas, there’s a different sense of struggle there. For one, we’re in the courts, on some level, we’re on the courts of public opinion as well, but we’re in the courts, and therefore, we’re going to have some arbiter out there, who’s going to say, government, you can do this, government, you can’t do that, and that’s essentially what we want in Guantanamo, was the court saying at least to our government, something fundamental, which I’ll talk to you about.

So I do think there’s a different sense of struggle, there’s also, I mean, while we’re sitting here, clients of mine and clients of ours are being tortured probably in secret detention facilities all around the world right now, and that’s awful and that’s terrible and there’s many clients in Guantanamo, but we’re not losing thousands of lives. And there’s a difference in a certain way, although I don’t think it’s right really to compare one or another, but I just think that it’s obviously a very difficult situation, and it obviously is going to take a lot of resistance by a lot of people. I remember just before the election, The Economist wrote an editorial, two pages, endorsing Kerry for president, now, the Economist has, interestingly, 450,000 subscribers in the United States. Only 150,000 in the United Kingdom. And I’m going through reading the reasons why they don’t like President Bush. And it says, “We endorse Kerry with heavy heart.” So let’s be clear. And they like the war in Iraq, I mean, they didn’t like how it came out, and what we’re doing, as Caroline says, the occupation in Iraq, they say would haunt America for generations, was Guantanamo. And the main reason they said they’re not endorsing President Bush was Guantanamo, and it had to do is what we’ll get into, what does the rule of law mean in America. What does it mean in the world? What does the moral authority of the United States mean anymore, after you can indefinitely detain people, disappear people, torture people, and give them summary justice, which are the four key aspects on the road from Afghanistan to Guantanamo to Abu Ghraib.

So it is extremely serious, what’s going on, in terms of, what you want to call it, our justice system, and it’s one that I think we’re in a struggle for, that I feel, optimistic would not be the right word, but we’re actually in some way, winning that struggle, on some level. I want to step for a moment, step back for a second, and I want to give you a history of where I come from which is the Center for Constitutional Rights. The Center for Constitutional Rights came out of the Souther Civil Rights movement, in the 50s and early 60s, where we lawyers who went down and did incredibly innovative litigation, around defending southern civil rights protestors. Famous ones were Bill Kuntzler, Arthur Connoy, Morton Stavas, and what they did was they came up with innovative legal techniques that have never been tried before, which was removing cases of southern protestors, from the state courts into federal courts, and trying to get some kind of justice, and out of that was born the idea that you should have an organization that defends social movements and takes real risks in terms of law, goes out on a limb to a certain extent, doesn’t care too much about making good precedent or bad precedent, the idea was wanting to win for your clients, to defend them, to defend social movements, and secondly to use law and litigation in a public forum as another means of educating people and creating a sense of struggle.

Because of that tradition at the Center, we’ve won a lot of cases that no one ever expected, and this year we have an affirmance of a case called, “Visosa, Alvarez, M—-,” which upheld a statute called an “alien tort statute,” which our office first brought in 1980. People thought we were out of our minds in 1978. And it concerned a torture that took place in Paraguay, the torturer came into the United States. And we sued the guy on behalf of the people who came into Paraguay who were tortured, and the court, under the statute, says that U.S. Courts can enforce customary international law, if the person is present, in the United States. The incredible ruling, it allowed me essentially to sue the head of the military in Guatemala when we were studying at the Kennedy School, the former president of Haiti, and now getting carefully into the discussion a little bit, it now has allowed us to sue three major corporations, oil corporations, one Uni— for using slave labor in Myanmar, Burma, Chevron and Shell for killing and torture in Nigeria. So, it’s the kind of case that I never ever expected an affirmance in the supreme court this year, was a real remarkable victory in that court, that they held, that you could use customary international law, to sue, in that case, for individuals, and in our case, we were now going for corporations. It’s that tradition of high risk cases that really got the center into Guantanamo and got it in both ends, in some sense the last ten or twelve years of my life, had been book-ended by Guantanamo. The first Guantanamo case that we took in, which were the refugee cases coming out of Guantanamo, the refugee caess coming out of Guantanamo, the HIV camps, for people who had good asylum claims to come into the United States, but because of the HIV exclusion within the United States, they were not permitted access to come into the United States and they set up an HIV camp.

I was teaching at Yale at the time with a man named Harold Koh, who is now a dean at Yale, and Harold and I fought this case, which was an impossible case. Just no way in the world, I mean, these were, in part, politically impossible, I mean you had, blacks, Haitians, non-citizens, HIV-positive during the first Bush administration, in a place called Guantanamo that according to the United States, no law applied, or at least if law applied, there’s no jurisdiction in the court to apply there. And we went forward with that case, and won it in the end, and won it by really exploiting the very weaknesses of the case. We exploited it, one, by organizing non-citizen communities, organizing black communities, organizing the HIV communities, and organizing a whole set of students in the country who started a whole set of building cages in their schools, and eventually when we won that case, and we felt we would win it when Clinton took office, I should just say, this is a John Kerry lesson, we knew Clinton went to Yale, we knew Hilary, and they had all promised and they had all said publicly, we’re going to close the HIV camp, we’re going to close the HIV exclusion, and that’s going to be it.

Once they took office, we met with the Clintons, and they said the idea that this administration was going to bring a Haitian, HIV-positive, non-citizen into this country was just ridiculous. Don’t even go there with this. So, we had it litigated into the clinton administration, and we won it in a lower court, and the one thing I’ll say about the Clinton administration is at least they didn’t appeal the case, which was variable because under the Bush One and maybe this administration currently, they would have appealed, but what came out of that Guantanamo case and what was key to the government, what was absolutely key, we had won a certain right for Haitians in Guantanamo to have a due process right. A right to some kind of hearing before they could be sent back to Haiti.

When we won, we had to vacate that opinion, which was in the Second Court of Appeals, and we had to vacate it because the government’s position was that they would do anything at that point, they were willing to actually let our people into the United States, just so there was no opinion on the books that there were no constitutional rights, for anybody detained in Guantanamo. So that’s the one book end. The other book end is obviously Guantanamo today when my first client was sent to Guantanamo. David Hicks, I’ll tell you how I got him as we go on here, I knew it was real trouble because what the United States was doing, was very obvious. They were sending people into a place where they would believe that there were no constitutional rights applied, and where, in their view, a little bit different in the Haitian cases, that there were no rights to open the court house doors, you couldn’t even go into an American court on behalf of someone who is imprisoned in Guantanamo, at all, on a writ of habeas corpus.

Therefore, there was no way to litigate it, there was no way to represent people to let you down there, you got the names, essentially, essentially by chance. So those were the sort of two book ends. I want to discuss a little broader, I want to go back to Guantanamo. I want to discuss a topic broader than Guantanamo and I said the four things I want to talk about are indefinite detentions which are Guantanamo related, disappearances, which we are calling renditions, where we take other renditions of US snatching and kidnapping of other people and taking them to secret detention centers around the world, whether it’s Diego Garcia, or whether it’s putting them into foreign intelligence services like Morrocco or Jordan. Torture, which runs the gamut from inhumane treatment all the way up to torture which goes for what I said from Afghanistan, bound to Guantanamo and over into Ab– G–. And summary justice with what’s going on right now in Guantanamo with military commissions.

Now I talk about those four words and I did a huge amount of work in Guatemala and Central America, and cases around Nigeria, and I keep thinking, indefinite detentions, disappearance, torture, summary justice. Is that Pinochet in Chile in ’73? Is it the dictator in Nigeria? Is it the Guatemalan military with what they did with the Indians in the plateau? And it’s not. It’s unfortunately, it’s our country right now. And those are what we’re becoming known for. It’s about America. And today, when you look at those foreign, the administration is really trying to re-write the laws and come up with a new system of justice that’s outside of what our understanding of justice has been before. And there’s two key elements of it: 1) it’s been going on on and off since 1981, which has been the ignoring of international norms and international law, including international institutions. But certainly, international norms, prohibitions against torture, prohibition against indefinite detention, and the second thing in this administration, and again, going on, you can look at this going on since 1991, huge increase in executive power, and try to push the courts to their sidelines in terms of their ability to carry out what they want, free from the courts.

As we said the case, the case we brought on Guantanamo called “Razul v. Bush” was decided June 28th by the Supreme Court. And I want to give you its essence. The essence of that case is that the courts in that case are open to review the detention of non-citizens, of aliens that are in Guantanamo. Now some people could read the case more broadly, and I would be one, that the essence of the opinion would be to review the detention of any non-citizen held anywhere in the world, by the United States. And let me tell you the difference. Guantanamo is really like an American city. When I went down there you eat at McDonald’s, it has 7000 people, up until recently you didn’t need a passport, they started requiring passports when we got into the question of is Guantanamo part of the sovereign territory of the United States or b—s like that.

And so the narrower part of the ruling is that the right to file a writ of habeas corpus, or the right to test your detention in American court only applies in a place that is akin, where the United States has complete jurisdiction and control where it has with Cuba, the broader ruling is the one we argued for where we argued the case that anytime the United States detains anyone in the world, you have a right to walk into a federal court, and say to the United States, “Why are you holding me?” The United States may say at that point, stamp me, we’re being held as a prisoner of war, I’m not going to look beyond that. But you have the right to at least open a court house door. And what the case really stands for, and I debate this with military people who hate it because they think it’s a total and utter interference against in the military’s ability to fight war. But to me it’s a major affirmation of a core principle, that the executive is under law. And the executive, even if it’s a case of opening the court house door to ask “Why am I being held?” and even it’s a summary hearing in the federal court, it’s still the executives under law and you walk into the court.

And when I used to give this speech before we won the position on June 28th, I used to always cite the Magna Carta, now I went to law school, so I know a little about the Magna Carta, but I really knew more about it from studying it with my son who was 15 or 16 and I had to test him on it, which happened to be last year, and there I’m reading article 39, and there article 39, the right to, no free man shall be detained at the kin essentially without a trial of his peers. And I used to always talk about, for this administration, we’ve gone back to 1214. Not to 1215 which is the year of the Magna Carta, And that’s really, I considered not only pre-Magna Carta, which is really the founding document of Anglo-American law and British law, whether you look at the writ of habeas corpus, or the prohibition against the torture of British law, it comes out of, they don’t have a written constitution in the same way we do, but it comes out of the Magna Carta and particularly, article 39. And in all my talks I used to talk about the deaths that we’ve done in this country, and we’ve gone back to 1214.

Interestingly, when the Supreme Court decided the Razul case, they cited the Magna Carta. And it’s pretty extraordinary, it’s extraordinary that we won it, but it’s also extraordinary that they had to remind the administration that this is not 1214, this is 1215. And they talked about actually the detentions in the case, that since John was forced to sign the Magna Carta, executive detentions have been affluent in this country. And therefore there is a right to file a writ of habeas corpus and test your contention. So when you look at the sweep of what’s happened here in this current administration in terms of fundamental aspects of our law, it’s really, it was an attempt really to re-write, what I consider, 900 years of a fundamental right, I was reading another article in the Magna Carta the other day and it talked about the ABA, the American Bar Association. And they put up a Pl—, a run– me—. And what the ABA has on the plinth(?) is “Freedom under Law.” And my friends who wrote this article says that that’s not really want the Magna Carta stands for.

What “freedom under law,” what it really means, it’s sort of like Law day, it’s sort of a little bit about not having demonstrations in the streets and anarchists, and that kind of stuff. That’s really what I think people read the Magna Carta as, what the Magna Carta really means is “Authority under Law.” And that’s really what we’re talking about in the series of cases that my office has brought since 9-11 is the idea that there should be some whole, some way of looking at what the executive is doing. The, I don’t know if people saw the articles, there were two very good articles by Tim Golden in the New York Times a couple of weeks ago, and they were long pieces on how this came about, how indefinite detentions, conventions, military disorder, and Guantanamo came about. And he said a group of people got together in the administration, early after 9-11, and they were Cheney, Rumsfeld, and then the lawyers, Gonzalez, Hugh, a guy named Flannigan, Addington, the rights of power were actually out of this discussion. And they decided that they were going to create a new system of justice, apparently, and it’s a new system of justice characterized by what I’ve said: indefinite detentions, interrogation methods that they wouldn’t necessarily use the word torture but they were at least inhuman at least according to the Geneva conventions, and the system of military conventions that they were going to use to try hundreds of scores of people.

The article I pointed out is that the goal, that just as I have said, The goals were obviously on one level to stop terrorism, and try and send a message. But another goal was to increase executive power and stop any reliance on international law. And it was said that it was, when the talk yesterday, I’m sorry, when we talked about what was in place since 1981 since Reagan took office, I’ve always looked at the Heritage Foundation report in ’81 where they said here’s what they want to do and here’s our 20 year plan for doing it, and that’s really, to some extent, what’s going on. And it’s the twenty year plan where they want to re-fashion certain parts of the law, not just certain parts of the law, I’m talking about surveillance law, the FBI, CIA, all that kinds of stuff. But these guys got together and they decided to do this, and I said the key aspects are those four, and I said even as I realized it at the time, because I realized it by January of 2002 that this was going on, they were taking us back to another period, and there was another article by Gary Wills the other day that said, it’s taking us back to before the Enlightenment. And that was another figure of speech I frequently used in giving my talks in January of 2002 and 2003. That is this is a pre-Enlightenment administration, it’s not a rational administration, it’s not taking the rule of law, it’s taking us back to the Magna Carta.

The second thing that they did was not only re-create the system of detentions, they did it by ignoring what we call, what I would consider, the traditional systems of law that deal with the world. One system is called human rights law or criminal law, where you arrest a person, and you try them in a regular trial, they get out if they get acquitted. The other system is in humanitarian law, it’s in human conflicts. And that has, it’s a branch of the broader area of human rights law, but it includes things that I don’t necessarily love, but are necessary in a time of war. To detain a prisoner of war until the end of the war so that the prisoner doesn’t go back to the battlefield. It includes a hearing process and some other things. Those were the two systems and people generally would have to fit within one system or another where they’d have one kind of a status. You either have a status as a civilian essentially under human rights law, or you have a status under Geneva, and under humanitarian law, and what the United States did, what the Bush administration did, and they decided early on, to do a selective application of Geneva. And that started with Guantanamo. And they decided, well, we’ll apply Geneva to the Taliban, but the rule is, a matter of course, that none of the hearings will, that they’ll apply, but they’ll take away their very way of applying.

And to Al Qaeda, to the extent that they can make the distinction, or to the extent that they are able to distinguish, we’re not applying any of that, whatever words they used to change unlawful combatants to something else, And so they decided to selectively apply this, the red-cross objected saying we can’t do that, Afghanistan is an armed conflict of an international character, Geneva conventions apply, you have to give people hearings under the third convention, etc. etc., and you hear long stories about that, but that was the beginning of the end and there’s some memos that we’ll get to at the end of my talk, in terms of what that meant for people with inhumane treatment.

The second thing they did was that they arranged to apply, they claimed they were applying humanitarian law to allege terrorists. So I have clients, for example, picked up in the Gambia, or in Pakistan, or in Bosnia, they weren’t carrying a gun on the battlefield in Afghanistan, they were, according to the United States allege terrorists, and the question is what law should apply there. Normally if it was an alleged IRA, so-called terrorist you’d pick up and you’d indict the guy, put him in jail, and if he got convicted, send him back to England for trial, whatever you would do. And what the United States was doing, was they’d say, well, “Alleged terrorists or international terrorists are different, we’re applying humanitarian law to them, but they’re really not applying humanitarian law, they’re applying the parts of humanitarian law that are the most pernicious, the part that allows you to indefinitely detain people, but not giving them any rights of humanitarian law, which would be the right to humane treatment, or other similar treatment you’d get under the law of the third Geneva convention and into the fourth convention.

So they just decided to use that paradigm, and it’s an arguable paradigm, and as a way of really being able to do whatever they want to people, that’s essentially what they’re trying to do. The very controversial, selective applied, the case that raises it just so that you get a sense of it, the case that raises it the most squarely is the Pedea case. Pedea is the so-called Dirty Bomber who gets off a plane in Chicago, civilian clothes, and they decide, oh, enemy combatant, let’s put that guy in Brig, South Carolina and deprive him of any attorney, rights, or the right to go to a court, but he never got to see his attorney. Attorney got to go to court on his behalf, but not give him any rights to see the affadavits or anything. And he’s being held under what we call, the laws of war. If not, on that theory. And that’s obviously the hardest case, because here you have a guy, U.S. citizen, no less, getting off a plane in civilian clothes, why isn’t he indicted like he should be, like a Moussawi, which is a case in which they did indict somebody, why are they picking and choosing, why is Moussawi indicted, and you see that there’s a lot of discretion here going on in the government on how to choose people.

And so those are the two basic things that Golden’s article talks about how there was an attempt to recreate a new system, and a new system, to me, is arbitrary by its very nature because it essentially allows government officials to pick and choose what laws they want to apply, what laws give people status, and allows people like Moussawi to have one system of justice than somebody else. Despite these we have given them a fair number of blows on these kinds of issues, as I’ve said, we’ve won the Guantanamo cases, I’ll mention about how those were turned out.

With regard to the issue of rendition which we’ll talk about how people are sent from one country to another to a place where they can be tortured, we actually represent the first guy who got out of a rendition, a guy named Maher Arar. Arrar was a Canadian citizen, transiting planes between Kennedy Airport, US picks him up, claims he’s Al Qaeda, sends him to Syria, underground prison for 10 months, tortured, eventually the Canadian government got him out. We’re now suing Ashcroft and company for sending Arrar to Guantanamo, and of course, the photos of Ab- Gr–b was another thing that was obviously a major blow to the administration, and the commissions that are going on right now in Guantanamo are just falling apart.

So I think that we’re doing on these kinds of issues we’ll find a certain amount of resilience in our court system, and our ability to litigate some of these issues. I want to mention six features that I see on this war on terror, that are extremely, some of which we have gone over, that are alarming, that I’ll give you sense of order on them. Where I’m beginning, you know, we live in New York, we were actually very near the world trade center. And obviously the first period was shocking, utterly, and completely shocking to us. And we saw at our office that early out, our administration was going to be using fear and the war on terror as a way of lying and pushing through a tremendous amount of what we consider violations of fundamental rights. So we started representing Muslims who were jailed all over the city on immigration violations, and with a broader coalition, we started doing work against the Patriot Act, and then November 13th, 2001, I’ll wake up in the morning and what do I see, military order number one from the President of the United States. And essentially you can look at it as a coup d’etat, almost, but you can certainly look at it as a takeover of an entire system of justice in the world, by military order, and what does it do? The president says, first of all, that it only applies to non-citizens, and then it says he has the authority under this order to pick up any non-citizen anywhere in the world, and that non-citizen can be taken over to the Secretary of Defense, and detained indefinitely, without a trial, without any kind of hearing, just detained indefinitely.

Now it does have categories that you have to fit into, according to the president, but it’s solely up to the president, the s—- the length of his arm, these are people caught on the battlefield, these are people who are non-citizens anywhere in the world, the two categories are 1) The obvious one, any members of Al Qaeda or people involved in 9-11, and the other one is any alleged international terrorist, at that point you can be talking about anyone from the African National Congress to anyone the President chooses, but the point is that you can grab anyone else in the world, not go through expedition, kidnap them, and turn them over to the Secretary of Defense, and they get detained indefinitely. And if they can be tried, they are to be tried my military commissions. They don’t have to be tried, but if they’re tried, they’ll be tried by military commissions. And military commissions are something that hasn’t been used since the second world war. They are essentially ad hoc, and we don’t like ad hoc kinds of tribunals, because they essentially allow you craft the laws to the defendant in front of you. They’re like regular tribunals if you’re a human rights lawyer. And that was really a huge wake-up call that November 13th, and to me are the fundamental underpinnings of the war on terror. And it was not just people in the progressive community who were upset about it, Sapphire was writing about military commissions in particular, people didn’t notice the indefinite detention aspects of the law, but they were all there.

The second thing that happened, that’s the first feature the November 13th action, the second feature is something I spoke about already, is Guantanamo. Guantanamo, as I’ve said, the administration’s position was that it is outside the United States, and they had a Supreme Court case that you could read as dead against us in getting any rights for people. Isaac v. Johnson, it was a second world war case, and it could be read broadly by the United States, and it was read that way by the United States as well as the two lower courts that we brought the case in, saying that aliens, non-citizen aliens, had no right to go into an American court on a writ of habeas corpus, a way of testing their detention. And therefore, under that case, we had to essentially try and prove that Guantanamo was part of the United States, the government said that you have to be a part of the sovereign United States, which is the 50 states plus maybe, P— and Guam, and Puerto Rico, but it’s not Guantanamo. And we of course read I— T— very differently, people in I— T— had a trial, it may not have been a great trial, it was a military commission trial, they had already been convicted as enemy aliens, uh, lots of differences that we’ve pointed out.

We got utterly slammed in the district court, utterly slammed in the court of appeals, they read I— and T—- exactly the way that the government wanted them to read it, which is to say the aliens have no rights outside the United States, the question as I said is whether or not you can walk into an American court, it wasn’t what rights you have once you get in, it wasn’t like constitutional rights in Guantanamo, it wasn’t saying you didn’t have the right to apply the Geneva conventions in Guantanamo, it was just saying we want to put the Government to the test of why we are being detained. As we said, we won the case, and by the time we got to the Supreme Court, we had a very different confluence of forces, we had 50,000 former prisoners of war, sign a brief that says what’s going to happen to American soldiers, if we don’t treat people with hearings and Geneva conventions. We have former state department officials, we have former judges, a wide variety of people asking both to hear the case, as well as on their merits. As I said, we won a br— move (?) on the case, that talked about the Magna Carta, affirmed by the writ of habeas corpus applies to people in Guantanamo and arguably anyone detained in the world. Now when we got into the decision of how we were going to argue the case, it was a very difficult question. Because I remember, m—, a person and Judge Gibbons who got to argue the case for us, a judge, a former third circuit judge, from F—, New Jersey, and we argued about, Should we argue to the court that you can bring a of habeas corpus if you’re a non-citizen detained anywhere else in the world.

And people thought we were crazy, because that meant Saddam Hussein could file under habeas corpus, tomorrow, in a federal court, but now he’s detained by the Iraqis technically, but does that mean he could do that, or when does it apply? Or should we just argue that Guantanamo is like the United States? We decided to go with the broad argument. On the idea that one, that’s what we wanted, because at that point I was looking at bringing torture cases out of Bahrain, and I didn’t want to foreclose that but I would’ve had it been the best argument, but we thought the best argument that the court should not draw lines around jurisdiction. The idea that a court could actually hear a case is crucial. They could draw a line as saying, ok, you’re too close to the battlefield, on the merits that you are a prisoner of war, but on jurisdiction the American courts ought to be open. And so we decided to argue that way. As we said what we want is a right to a hearing in a federal court, and a right essentially, subsidiary to that, of a t— for the people at Guantanamo.

Now the decision left open a billion, first of all, what kind of hearing do you get in a federal court. You get to call witnesses, what happens in federal court? What law applies? Does the constitution apply in Guantanamo? Do you have a due-process right in Guantanamo? Can you ask for prisoner of war status? You apply what the fundamental question is here, do human rights apply? To my people in Gambia? Are they to be treated the same as the guy picked up in Afghanistan who’s holding a gun? Maybe. Huge amounts of questions open. And so those are still open. Those have not been decided. I’ll talk about the US cases because those give us some answers on that, the US citizen cases. But right now if Guantanamo, we’re now in a federal district court, and our position was, we wanted to create as much on the ground in the federal district court in Washington so that we can pull as many of these federal cases in from the federal court. And there were most of these big firms come in.

The government on the other hand said, “Why don’t we look at this differently? Why don’t we look at this as some federal court reviewing some administrative hearing? Or a federal court reviewing some state hearing. And you don’t get a real hearing in federal court, you just get to review the facts on the ground. So the government immediately sets up what you call combatant status, review tribunals. And said we’re running everybody through these tribunals, and said we’re running everybody through these tribunals, these are their hearings, and that’ll determine everyone as a so-called enemy combatant then we’re going to be able to go into federal court and the court will just be able to say, “Was there enough evidence or some evidence to say that this guy was an enemy combatant?” So that’s where we are now. We aren’t litigating that yet, but the government is trying to run all these people through hearings in Guantanamo, we’re sitting trying to bring everyone into federal court. Huge struggles over rights to counsel, security clearance, monitoring conversations, and hearing some informants afterwards, we thought we’d have 30 or 40 attorneys in Guantanamo by this time, we’d had three there so far. And the government has dug in its heels and if our decision was a suggestion by the supreme court and not a decision.

Make at least a little bit of humor out of it, gave me this hat, called the “Guantanamo Bay Bar Association.” It still remains, you know, actually it was Eugene Fiddel, Eugene was the lawyer for Captain Yi. Japanese guy who was accused of espionage and eventually let off completely, but it still remains one of the world’s smallest bar associations. Anyway, that’s where that stands. Some answer to that question was given by the US citizen cases. And particularly by a case called Hamdee(?). Hamdee(?), a US citizen, picked up off the battlefield, according to the United States, in Afghanistan, turns out after he gets to Guantanamo, he’s a US citizen. He was born in the US, lived in Louisiana for two years, and goes back to Saudi Arabia with his family. Found out he was a US citizen, put him in a military brig in South Carolina. His lawyer goes to court, never seeing him, but the family, representing the family, which is n— friend, which is how I represent the families under the habeas statute. Goes into court, loses in district, loses in 4th circuit, goes to the Supreme court, and in the Hamdee(?) case, Justice O’Connor writes, well, he does have a right to, essentially a 6 to 3 decision, although two of the judges, I think it’s Rehnquist and Scalia said the guy needs a regular federal criminal trial. They actually went to the position I would have taken, dissenting.

And four of the judges say you can hold people’s enemy combatants from the war in Afghanistan, it doesn’t say anything on the war on terror, which is what people picked up in Afghanistan, two judges sued her, and Ginsberg said, “Well, you can’t really hold people the way they’re holding them as enemy combatants, you have to hold them as prisoners of war, but to get a decision out of it, at least agree with the other four. So you have six justices saying essentially that you could hold people as enemy combatants, to the extent that they’ve picked up on the war in Afghanistan. And you can only hold them until the end of that war in Afghanistan. And in sort of, a dictum of sorts, Justice O’Connor says, “It may be that a military tribunal akin to the tribunals under the Geneva convention could be had for people like Mr. Hamdee(?) in a sort of military hearing, like three people from the military like the Geneva convention says under article five, to determine whether he’s an enemy combatant or not, that’s a possibility. And that would be reviewed by a federal court, so she suggests a sort of military proceeding. And that really, from that suggestion from Hamdee(?) is what dictated what the government did, what the Bush administration’s now doing in our cases in Guantanamo.

Now interesting thing with Hamdee(?), or what happens to Hamdee, as you all know, Hamdee is now up there with his middle class father living in Saudi Arabia, was sent to Saudi Arabia. As soon as they needed to have the hearing. So you have to say to yourself, “What’s going on here?” I mean, if this guy were really a killer and dangerous, what were they doing here? Were they just trying to say, we can do this to US citizens as well as non-US-citizens? Are we trying to create a precedent? Are we just trying to send a message to the world? So you have the November 13th order, you have Guantanamo, you have the US citizen cases, the Pedea case was also up in the Supreme court also as a Supreme Court citizen case. They chickened out on that. They had to chicken out on it, it’s the hardest case they had. What the hell are they going to do with a guy, they’re going to hold that you can’t treat him as an enemy comabatant. Are they going to hold that you have to treat him under US criminal law? They had to, they did, it was 5 to 4, they just decided that he had filed in the wrong district, and now he was starting with his habeas corpus case again now in the fourth circuit, instead of the second circuit where they had tried it.

So those are the three of the issues because my time (inaudible) fell very quickly. The fourth was military commissions as I said, here they set this up with all this hoopla of November 13th. As I said, they’re ad hoc tribunals they were completely ridiculous when set up. They were judges, basically, the President controlled the whole system. He decided who was going to be tried, appointed the judges, wrote the laws, appointed the prosecutors, and was the only appeal. And you could get the death penalty and the s— and you could get tossed off the aircraft carrier literally. I mean, the whole thing could be secret. Now it’s been modified obviously, modified to the point where it’s almost collapsed, and I’m working closely with the military lawyers in those cases, and they’re extraordinary. I don’t know if you read this, Colonel Michael Maury, others, amazing. They consider this to be the most r—, worst system of justice in the world. They think that if people are going to be tried, they ought to be court martialed, they think this has nothing, nothing to do with justice.

Currently they have seven people on the panel that was going to try my first client. I’m not a criminal defense attorney, so I’m not actually defending anyone on this criminal case. Currently there were seven judges up on the panel, they have disqualified, six or seven, they have disqualified 3 completely recently, even the prosecutor joined in the defense motion that they were too bias to try the cases. He had joined in the prosecutor’s motion, the prosecutor joined in on the motion to disqualify the chief judge Brownback, but he didn’t disqualify himself, so now they have three judges, one of them is is Brownback who both the prosecution and the defense think should be disqualified. We started a collateral action in federal court in Washington to attack the entire system of the tribunal. You know, as the P– Holden article says, They originally thought that they would run hundreds of people through these, it’s been three years, they haven’t run one person through them. And it’s never going to make it. Never, never going to make it. They’re just completely outside anything, anything that this room should understand as law. On a legal point, since they were last used in the second world war, you’ve had a huge body of law saying that they can no longer be used. International Geneva Conventions, the national convenant(?) on civil and political rights, said people have to be tried before regularly constituted tribunals. I don’t care whether you’re a prisoner of war, I don’t care whether you’re a terrorist. You have to be tried by something that essentially gives you the, the regular, it can’t be set up for the purpose.

So the fourth aspect of this is I think, it just crumbling, I don’t think the administration really cares about it, I think it sort of motions about it, and going through. The fourth area here is what I called the Torture memos on torture. You know, I was naive in the beginning of this. When I first debated people around Guantanamo and why they weren’t applying in Geneva. The B– of B– a lot, a professor at the, he was at Yale, and now down at the, Maryland now. I used to think they weren’t applying Geneva because they didn’t want to give people regular trials. Because once you’re under Geneva, you really have to get, it’s a war crime not to give people trials under Geneva. And now the Gonzalez memos, the torture memos start to come out. And the first one is the one from Alberto Gonzalez that I saw January 25th, 2002. And it’s advice to the president as to why we shouldn’t apply Geneva. And it gives some lip service as to why we should, but it basically says why we shouldn’t and it gives all the things you’ve heard, you know, uniforms and all that kind of stuff. And then it gets down to what I really consider the core, January 25th 2002, it says you know, in the United States we have a war crimes statute. And the war crime statute says that any great breach of a Geneva convention by an official of the United States is a war crime breach in humane treatment. Not just torture, but inhumane treatment.

And so what Gonzalez’s memo says, it says some prosecutor in the future may decide that the way we’re treating people, might be inhumane treatment, it might be silly, stupid, but that’s a risk here. And so our best defense against a war crimes prosecution in the future of us, the president, of these guys, of the people who are doing this stuff in Guantanamo, our best defense is to say that the Geneva convention doesn’t apply. Because it doesn’t apply when, oh, the violation of the war crimes statute, we can only violate it if it’s Geneva, and Geneva doesn’t apply. And that’s the Gonzalez memo. So to me, it’s actually the crucial one, because it’s the understanding that by January of 2002, they were going to carry out this war with inhumane interrogation procedures. Whether we can argue that torture inhumane, but certainly inhumane in violation of what we understood to be a l— interrogation under Geneva under what we would even say a certain —- amendment of the constitution, under due process, etc.

Now Powell, to his credit, at that point, wrote a memo utterly contrary, the next day to the president, saying this is ridiculous. We have a 100, we actually found the Geneva conventions under a l— code during the civil war. We’ve had a hundred years of upholding it since the Hague convention. How can we do this? What would happen to our soldiers? What will happen to our soldiers? What will happen to our moral standing? But Powell was not listened to. So then you get the next phase of course is the torture memos. I’ve debated people about the torture memos, and we just thought that, this all goes to the question of are higher-ups responsible for what happened at Abu Grab(?), I think that they are. And I think they are in three points, One is, they wrote the memos. Secondly, you know, I’ll hand it off. There’s interrogation techniques that clearly violate, r— humane if not torture. And thirdly, you have the actual evidence. So you have administration officials doing the memos, then you have techniques authorized, then you have the effects. So my view is that this administration is up to its neck and when I saw the elections I said to myself, “Oh my God, we’ve just elected, we’ve basically just elected a bunch of alleged war criminals.” People who have actually in my view are guilty, and should be arrested if not charged with war crimes under our war crimes statute. In any case, the torture memos. They were written really, from what I understand, to protect the CIA. They were certainly about Guantanamo on some level. But they were, you know, in a certain way I’m looking at Guantanamo as a diversion. I’m looking at Guantanamo and yeah, my clients were chained to the floor for twelve hours at a time, they were stripped, I think dogs were brought in, very bad stuff. But it is in detention facilities where they are using water boarding, and stuff that were classically, water boarding is where you sink someone under the water until they’re almost suffocating, and you bring up and down, up and down, and the techniques that really S— Hirsch talks about in his book.

And apparently what happened was the CIA was supposed to do this to people, and the CIA came to the government and said, we’re not going to do this unless you give us cover. And then they wrote these memos, and of course the most famous one was written by a wonderful nine-circuit, federal circuit judge named Bybee or Bybee, who was actually before these memos. Before it was known that he was the author of these memos, he was appointed to the ninth circuit. Our most liberal circuit. And he said three things in those. One of them he gave what I call the Pinochet defense. He said that in the interest of national security, you can torture people, because the president is exempt in stopping terrorism, the president is exempt from the prohibition of torture, and he can authorize people to torture and can authorize it to the people in the chain of command. And therefore he’s exempt. It’s the same argument that Pinochet made that to save the country from communists, to save it from revolution, to save it from Marxism, I can torture and kill, you know, thousands of people. The second thing he said, that Bybee said, he redefined torture. So it no longer includes, you know if I take a dog, unmuzzled against the naked Iraqi, and it’s about to bite the heck out of the guy and threaten his life, that’s not torture anymore, it has to be essentially organ failure. The person has to be close to death. And the third he uses, which is the necessity defense, which is that, it’s necessary to stop terrorist operations, it’s a necessity defense.

So these memos are actually quite extraordinary because they themselves, at the highest level, say, does really authorize what’s going on. The second step, and I want to give this out to people, is what I call the Rumsfeld technique. This is just Guantanamo so it’s not just the worst of the worst. And if you look at these… (walks away from the podium for a few seconds):

Evolution of Interrogation Techniques from Gatmo or Guantanamo. Now these are what Rumsfeld actually approved. And this is not a secret document, this is an exhibit E in the Schlesinger report. The Schlesinger report was written as one of the examinations of Abu Gr–. And the most interesting column is the second column, it’s approved here since, it was, according to this, only approved for one month. You look down to the second column there. This is Rumsfeld our secretary of defense approving them. It has stress positions like standing. Rumsfeld writes a little note when they say well, have people stand from 45 minutes to 4 hours. Look, I stand 10 hours a day as Secretary of Defense. What’s the story here? So my client said that they’re actually changing it to four hours at a time. The next says that it’s isolation for up to 30 days. My clients have been isolated for three months, it’s considered certainly cruel inhuman and degrading treatment if not in some cases n— to torture. Then it says “hooding” of course for removal of all comfort items including religious items. So they’re going after Muslims with Korans. In many cases, my clients have said their Korans were thrown into toilets were stepped on, all kinds of stuff like that. Removal of clothing, so that’s stripping. Forced grooming, which would be taking a muslim man and shaving his beard or his hair, and then this is the one that I think by, a lot of these you could say, alone or certainly taking together, amount an inhumane and degrading treatment under the convention against the torture and inhumane treatment under Geneva.

The next one, exploiting individual phobias, e.g. dogs. So here’s one where Rumsfeld is actually authorizing the use of dogs in interrogations. Now many people would argue that that alone, an unmuzzled dog, would constitute torture. Certainly constitutes cruel, inhuman, and degrading treatment. And so he’s done in this context of the Muslim population when Muslim people consider dogs to be unclean and don’t have dogs in their homes. It’s both the terror that someone like myself would feel plus the extra religious issue of dogs to muslims. And of course it has p— and stuff like that, sleep adjustment, well that’s already still unauthorized, so when you see those, this is essentially our highest levels of government authorizing inhuman treatment of people. And what has it resulted, you know, I represent the P–n three, the three people I interviewed in England after they were released. They confessed, they were shown a picture, they were picked up in Pakistan and Afghanistan. One of them was there for an arranged marriage, one of them did charitable work. You get picked up there, twenty years old, and they were taken to Guantanamo. I won’t go through the trip there, but they get shown a picture of them, of people sitting in a field with Osama bin Laden. And everyone’s assumed to be guilty in Guantanamo. And the US interrogator says to him, “Isn’t that you with Osama?” And they said, “No, that’s not us, we were working in curries(?), whatever curries is, in United Kingdom at the time. And we can prove it.”

And the interrogator says, “No, no, you have confederates all over you, you can’t prove it.” So after three months of isolation, dogs, stripping, there’s actually a 115 page report they wrote on the center’s website, they confessed. And they confessed, yes, that was them in the picture with Osama bin laden. And then of course the interrogations became very heavy. And because of this thing made in Britain, British intelligence proves, as they said, in 5 minutes, that they were in the United Kingdom at the time they said they were, working at curries, or whatever this place was. And they were completely not guilty of any kind of meeting with Osama bin Laden. So they went back to England. When I met these kids, they reminded me of my son, they were 22 now, I guess they might be. I mean these guys were not terrorists. I mean, were they completely clean in the world? I have no idea. But they certainly had no relationship with Osama bin Laden. No relationship to picking up a gun against anybody. Anyway, they have these torture memos, you have the authorizations, and as then I said, both what’s happening in Guantanamo and what’s happening on the ground, and obviously the facts on the ground of Abu Gr—b. And I’m not saying here that Rumsfeld authorized sexual pyramids, and rape and masturbation in the rooms in Iraq. But they made up a system that was open to softening people up to inhumane treatment that essentially allowed that to happen.

And had techniques that were certainly unauthorized by law. As I said, I think Guantanamo is a diversion of a diversion in a sense that the really bad stuff. Bad, obviously, in Guantanamo, bad in Abu Gr—, but underground facilities in, that’s where two people, we knew about this in December of 2002. There were D– Pr–t articles about people being hung from the ceiling and being beaten to death, and there was no investigation until the photographs came out.

The last area is this, what I call, rendition, rendition and disappearances, disappearances in this case where they pick off anyone in the world, and take them to these detention facilities. Rendition is when you take one person from the United States or from another country, outside of expedition, send them to a place that can be tortured. As I said my client, M— A— was sent to Syria where he was tortured, I had another client who was sent to Guantanamo then Egypt. As this little flyer says, “January 4, 2004. We don’t kick the s— out of them, we send them to other countries so they can kick the s— out of them.” – US Intelligence Official. And we give them the questions, we participate in it. So, so that’s detentions. The, as I said, I think, there’s incredibly outrageous series of events that have been going on in this area. I think we’re not losing the battle in a certain way, not necessarily in this area. We are getting some fundamental rights protected by the courts. And the fight is still going on. And the fight is still going on in a really deep way. By not just the center anymore, but by a variety of places, not just lawyers, but everyone from Human Rights Watch, The Lawyers Committee. One of the things we did with the Guantanamo case, to give you a sense of the struggle, we gave a case in front of the OAS and Human Rights Commission, which is in this hemisphere that we brought a few months after Guantanamo and we won the case, very quickly. That everyone deserves a status under law, whether it’s human rights law or humanitarian law, and of course the United States ignored it.

The one from the United Kingdom, got amazing rulings from the United Kingdom, saying Guantanamo is a legal black hole. And you have to do something about it. So we created a fairly broad sector of ways of dealing with the case. And when I end with what happened really before we won the case. But when the Pedea case was argued, it was argued on April 28th, Guantanamo was argued April 20th. Pedea, the so-called dirty bomber, was argued April 28th. And there’s amazing dialogue that happens between Justice Ginsberg and Paul Clemente. Paul Clemente is acting solicitor general right now. It goes as follows:

Justice Ginsberg: “So what is it that would be a check against torture?” Because they’re talking about whether American courts have any authority to look at these situations. Justice Ginsberg continues: “Suppose,” this is before Abu Gr– has come out, in my understanding, “Suppose the executive says mild torture. We think mild torture will help get this information.” It’s not a soldier that does this against the code of military justice, but it’s an executive command. Some systems do that to get information. And I can say, our system does that. Justice Ginsberg continues: “What’s constraining?” “That’s the point. Is it just up to the good will of the executive or is there any judicial check?”

Paul Clemente answers, and remember this is April 28th. “Well, our executive doesn’t. And I think that the fact that our executive discretion in a war time situation can be used, in effect, you can do these kinds of things is not a sufficient and good reason for judicial micromanagement and overseeing the authority of the military. You have to recognize, in situations, where there is a war, the governor that is on war footing, you have to trust the executive. And basically, you can end this on saying, is what you have in this country, is a place where you can no longer trust the executive. And to its great credit, a very moderate supreme court, came down and said, you can’t trust the executive. And they did, like I said, Paul Clemente made this argument and this statement, 8 hours before the Abu Gr– photos came out. They came out April 28th, that evening on CBS news. And that was whether we’re going to win these series of cases without those or not, I don’t know. But that was the end. Thank you. (applause)

And I guess I’ll take questions.


This whole justice system… if you throw in the civilian problems that we’ve had, it seems to me, not only an outrage, but a disaster. That is, except for the head of the authority in the mean time, the government is really losing almost everything they could … What do you think the government got, what kind of evidence did they get out of the suspects they found? I suspect something, they must’ve gotten something out of some prisoners.


Yeah, there’s two parts to your question. One is the civilian trial are, David Cole(?) wrote a very good article called “Zero for Five Thousand” in the Nation. And its’ about the civilian trials, you know, when you look at, I talked about Captain Yi. And I know Captain Yi. His case was just incredible. They charged the guy with espionage. This is of course, General Miller who set up the Guantanamo Bay facilities, was sent out there to relieve Colonel B—s… Abu Gr— and of course, that’s where you get the photos. So you have Captain Yi, you have Brandon Mayfield, the guy sitting out there, the guy they claim is the Madrid bomber, where they misread a fingerprint after the Spanish government says this isn’t Brandon Mayfield’s fingerprint. Both of those guys interestingly enough converted Muslims, OK, so they have the detroit cases. So it’s been a disaster, so the question you have to ask yourself, I’m not an expert in those cases, but to what extent and if you read the various affadavits in the Mayfield case, to what extent is the fact that the person is a Muslim, converting Muslim, to what extent does the Government, because of that fact, raising the level of suspicion, it doesn’t get left behind, and other pieces of information. It’s just, it’s been a mess. There’s no question about it, and if you look at Massouwi, Massouwi is still going on three years later, and there’s no other, and I agree with you there is no real success. The question is what have they gotten. You know, in Guantanamo, I, obviously I don’t know, I don’t think very much in Guantanamo because those guys, they’re not what you’d call high-value detainees, as far as I know.

Some people would say the first section of the 9-11 report written by their interrogation torture of E– Z—, I’m not sure, so it’s conceivable that they’ve got some information. They’ve probably got a tremendous amount of false information. Huge amounts of fall information, And you know, I had this, we had this debate about this, I was up at MIT, they have some sort of security w— school. I didn’t know what I was getting into, there was all these CIA guys and military guys a few weeks ago. And the first question is, the guy, first of all they really hate the courts, they just can’t stand it. They think it’s not p—tarian, non-democratic, and things like Guantanamo should be voted on by the population. And the second thing, they use, sort of a misuse of Bentham, but they use a utilitarian approach. If you approve the use of inhumane torture on 1000 people, how many lives are you going to save? And they don’t look at the human costs both those who are tortured and the torturer, and they don’t look to, I remember, I spend a lot of time in England with a fair number of Muslim psychologists, lawyers, and others who talk to me about the effects of Abu Gr- and others on the Muslim world.

And I look at that picture, right. The one that’s advertised for my book. but this is a US, this is a prisoner being taken to Guantanamo on an airplane. And under him there’s like a blue pad of I— dogs, that’s what you’ve got in your house if you’ve got dogs, and he’s chained to the floor there, or the picture of the US and its pride of crew-cut Marines standing over guys in orange jumpsuits, hooded. And they said, these photos are a c— in the Muslim world for everything that we’re doing wrong here in the world on terror. And the question you have to ask yourself is that maybe there’s some information, I mean, the question first is, is it civilized? Isn’t it beneath us to ever do this? And I know you’re not raising that. Secondly, are you getting anything? And third here, you’re making…


Michael, I wanted you speculate beyond photographs about why the supreme court did what it did? And I actually want to connect something you said about what E– said, over (inaudible) yesterday, one possible explanation for the court’s position, is that the court is engaged in an imagined struggle with the branches of the government, including the Congress of the United States. To assert its supremacy. So the court against the congress is, you know, perfectly, you’ve got it all wrong, and you know, we tell you these things. And from the perspective of the executive, what would you say these terrorists? What was at stake in these instances as you said was as you say in large part, until you get access to the court itself, not substance, and how are these things goign to come out. So I’m wondering in your view, I’m going to use a language that I know you’re going to reject, but there’s a kind of mixed blessing here. The mixed blessing is that you have a court that’s speaking in one voice, and doing two different things. Things that we admire, prepare to stand up to the executive in Guantanamo, and one, at least from my point of view, that I regret a lot, they’re asserting, what I think, the judicial supremacist voice, uh, roll back the New Deal, who cares Congress b—, I wonder whether you think that’s the correct explanation or that’s just a crazy carrying of two things that have nothing to do with each other?


You know, Linda Greenhouse when she wrote her piece in the Times about this, looked at it to some extent as an institutional decision, is what you’re saying. It was a way of protecting that branch’s power in the jurisdiction of the courts. You know, one way I look at it more substantively is partly, partly because they’ve sided the Magna Carta, to be honest, I mean seriously, I just think that’s remarkable. Partly because if you look at these cases from the beginning, we’re in a war. We’re certainly in a war in Iraq and we’re in a war in Afghanistan at the time these cases are before in the court. And we’re in at least according to the administration, according to a lot of opinions from a number of people who were not part of the m—, in the world against terror. Terrorists. And in that situation, when we lost in the district court, and we’ve lost in the circuit court. It’s from a political question sort of point of view, why is the court going to come in at that point? Why are they going to slap down the administration on it on a big argument like this, uh, when it may really affect and send a message to terrorists or something that you can litigate these cases and so I come out of saying it, it’s probably, the question is whether it’s only reflecting my own opinion, or my own concerns which is, my substantive concerns, over the way things are happening in Guantanamo. But you look at it another way, in my extraordinary opinion, the question I asked myself before the Guantanamo decision, you know during the second world war we had 600,000, 450,000, prisoners of war in the United States. And could those prisoners of war gone into an American court, and filed a writ of habeas corpus.

Let’s say you sweep up a Jewish shopkeeper in Berlin, bring him here, and the guy says, “I’m a Jewish shopkeeper from Berlin.” And he’s sitting here as a prisoner of war. The idea that those guys could go into a federal court, and file a writ of habeas corpus, it seems like a non-starter to me. And so in that sense, I thought this was a very hard case for the court. Because where does it end, and so I say, and so I tend to go more with the substantive, well, with both, I think, but what they, the Magna Carta, with the difficulty of the case in war time, that they were really saying to the administration, they were nervous over the broad assertions of authority the administration was taking in the war on terror. And if you look at the Hamdee case, that’s the most telling. Hamdee, like I said, is supposedly the guy who got picked up in Afghanistan, and the question is, how can he be held as a U.S. Citizen, and O’Connor goes out of her way to say, “Yes, he can be held as an enemy comabatant. But we define an enemy combatant as not only someone who was against the United States and essentially with Al Qaeda and the Taliban. But who also essentially picked up a gun against the United States. Not just one, but both. And how long could he be held? He could only be held until the end of the war with Afghanistan, which arguably is still continuing. Um, so she was very careful to say we’re not moving outside into the realm where the administration wants to go, alleged international terrorists, indefinite detentions until the end of the war. Indefinite detentions til the end of the war, the end of the war on terror. Detentions of enemy combatants that go beyond traditional people brought up. I think they were very concerned by that issue.

That debate is ongoing.


There has been talk that John Ashcroft is going to leave the administration before the inauguration. And if in fact that it does happen, what is it going to mean for the administration?


Well, interestingly, Ashcroft, in the Tim Golden article, Ashcroft was quoted as saying he opposed military commissions. And trying people before military commissions. And he sort of made it sound like it was on a principle basis, but if you look at what happened on the Moussawi case, it’s a really a turf fight between him and the department of defense. He wants to try people in federal courts, because that’s what the Defense department does. Rumsfeld wants to try looking at it more politically, and every decision, let me just say that every decision, when I met with the military lawyers, they said, normally military justice goes up a chain of command to military officers, JAGs, all the way up. We go this way, we go all the way up to the military commission lawyers, and they go over to Wolfowitz(?), there’s no up here. So every decision is political. So part of what happened with Ashcroft was that jurisdictional fight. What does it mean? What does it mean for Guantanamo? Not very much. He is not really involved in the Guantanamo. Those are department of Defense issues, primarily. Will it be, will I be glad to see Ashcroft go? Obviously. Ashcroft’s the guy, when I debate him, says words like “terrorist don’t deserve constitutional rights.” And I go, “how do you know they’re terrorists until you try them?” That kind of stuff. Ashcroft was also the architect, and I debated someone in justice. They do want to treat international terrorists on some level.

Anybody as enemy combatants. So I think we’re making, at least, some difference in the public rhetoric. At least, I hope it does. Where he says, anybody who supports violations in the constitution is help, support, or aiding the terrorists, those are his early statements. More sophisticated than I said, but, approximately there. His issues are the Patriot Act issues. And a number of executive orders, I thought Kerry was going to win, which I did. Partly out of, is it facts or religious belief, because I just couldn’t believe the other guy could win. So, one thing I was going to drop a list of about 100 executive orders that carried and signed the day he took office and every area, environment, FOIA, in the justice department. There’s a lot that Ashcroft did that he did through executive order and (inaudible). Ashcroft’s a real lightning rod, so I’m glad to see him go. But the question is, what are we going to do? so…


You mentioned almost as a side during your talk, but the Supreme Court decision is increasingly being treated as a suggestion, by the Bush administration. Can you talk about that a little bit, in terms of foot dragging and…


Yeah. It’s been four months. We have the biggest law firms in the country now with us. Will McCutler, it’s everyone out there. And the first the government would assert is that you had no right to go at a, even though the court opinion says you have a right to bring your case in to federal district court in Washington, the government asserted that the right to have an attorney is discretionary with the government and the Supreme Court said you never had a right to an attorney. So, we just submitted a case, and they moved to dismiss all the cases two weeks ago on this basis. But they’ve been arguing for four months.

Now of course, we said back, “How do you file a writ of habeas corpus without talking to your client? How does he file it alone, you know, he doesn’t speak arabic. Or various languages. How do they do it? And of course, we’re going to win that if Judge P—- is one of the judges in the district. Uh, recently affirmed the right to an attorney. They also said they have a right to monitor your conversations. And we also have to get security clearance before we go there. And under our security clearances, we can’t talk to anyone else but anyone who has a security clearance, and he’s actually working on the case with us. So it’s not like I can go to my office and actually talk to anybody about it, about what my client says to me. I can just, and so, the government says in certain cases we want to monitor your conversation, and as soon as they monitor conversations I have with my client, they’re essentially doing is interrogating my client in a softer method. In fact, if you even look at these little tribunals they’ve set up, these combatant status review tribunals, determine whether people are going to be enemy combatants. Each person before that little military thing it’s not these commissions that’s something else, combatant status review tribunals gets a personal representative. It’s a military person. And the personal representative has a rule that that personal representative has to tell the little tribunal of three military people anything his client tells him.

So here you have people who have been in for two and a half years, they get there first opportunity, yeah I’m going to get a hearing, I go to you and I say, “Well, here’s what happened.” I don’t know if you tell me, but I may not know, the first thing you’re going to tell the tribunal, so it’s really another means of interrogation. So they’ve been dragging on security clearnces took months, monitoring conversations, right to counsel, the protective orders which are very complex as to how we get classification reviews, and very tough stuff.

And you know, we filed writs of habeas corpus for people, and they took our writs, and we wanted to go down and show our clients, and the writs say, well, whatever the name of our clients is, and it says, … is being subject to cruel and inhumane treatment. And they take thing before they take it to our client, and they strikeout anything that has to do with torture, or out of the writ. It’s a writ that’s filed in court, and we can’t even show the writ to our client. I mean it’s, it’s extraordinary stuff that’s going on, foot dragging wouldn’t even be the right word. It’s just an attempt to, what was the term we used in the civil rights movement? Interposition? When you talked about states’ rights. And that’s what it is, so…


Presumably, the US is going to continue operations in Iraq for some time, including detention facilities, and obviously with what the victor (inaudible) would apply to military personnel and (inaudible) who are more similar to the Taliban, and the Al Qaeda detainees in Afghanistan. With the work that you’ve done that would be applicable to detention centers in Iraq, or are they going to work contain the work you’ve done.


Like I said, when we bring the book on Guantanamo cases, we want to bring companion cases for the people who were hung and killed in B—. We (inaudible) we also thought it was a risky, we didn’t, the court knows that that’s what it could lead to in the case, we didn’t want to just throw it in the court’s face that we could litigate cases in B—-d. The quick answer is the answer I gave first which is depends on how you read, the Razul decision, which in the Guantanamo case, which applies to people detained in Guantanamo, because the United States has complete jurisdiction and control under the lease, and Cubans have nothing to say about it. Then you have a harder argument when you get to a place like B—-, because you have to assert that B—-, is a place in which the U.S. has complete jurisdiction and control and is analogous to our control and indeterminate lease of Guantanamo, which never ends unless both parties agree to it. If you read the Guantanamo decision as saying, the habeas statute is clear on its face. It doesn’t have any geographical implications, then you can apply for people…