Rayner: Talking Dog Blog Interview
The Talking Dog Blog Interview
November 12, 2007
Martha Rayner is Associate Clinical Professor of Law and Director of the International Justice Clinic at Fordham University School of Law in New York, and is counsel to five men who have been held at Guantanamo Bay, Cuba, or "GTMO" (three of whom have been released to their home countries). On November 5, 2007, I had the privilege of interviewing Professor Rayner by telephone. What follows are my interview notes, corrected where appropriate by Professor Rayner.
The Talking Dog: Where were you on September 11th?
Martha Rayner: I was in New York City (I live on the Upper West Side). I just dropped off my kids at school; someone said a plane had hit the World Trade Center. I went home to see what was happening on television. I saw the second tower hit, and the rest, as they say, is history. We put up friends who couldn't get home to Queens that day, as the subways, of course, were closed. I remember the sea of people walking north, away from the Towers, away from the smoke. My partner was in the Bronx far away from danger, but I was greatly relieved when he made his way home by foot.
The Talking Dog: Can you identify your clients, their nationality, and their location (e.g. "released to Yemen", "Camp 6 GTMO", or whatever the applicable answer is), and can you tell me your personal impression of them as individuals? Have you met any of their family members?
Martha Rayner: The clinic has represented five clients over the years. One was released in May, 2006, to Saudi Arabia, Saleh al-Khatemi, who I understand is no longer in Saudi custody. We only met him once before he was released. Another Saudi, Fahd al Fawzan was released in September of this year, and he is in Saudi custody, in their "re-education program." We are optimistic he will be released within six months. We met Mr. Al-Fawzan’s cousin in Bahrain (an island nation just 15 miles off the coast of Saudi Arabia). A third client, Ali Mohammed Nasser Mohammed, was released to Yemen at the end of September. He is currently in Yemen's Political Security prison. We met Ali’s family when we were in the capital of Yemen, Sana’a, this year.
We have two clients still held at Guantanamo, Sanad Al-Kazimi of Yemen, who is held at Camp 6, and Mohammed Al-Shimrani of Saudi Arabia who is imprisoned at Camp 1. Neither has been designated as "approved for release," though that could happen at any point without me or my clients being notified. We’ve met with Mr. Al-Kazimi’s family and other American lawyers met with Mr. Al-Shimrani’s family.
Making and maintaining contact with our clients’ families is very important since they cannot visit their loved one (only the Australian, David Hicks—now repatriated—has been allowed a family visit) and mail is heavily censored and sporadic. Information about the status and future prospects of their loved ones is so limited that we feel an obligation to focus on communicating with family members.
The International Justice Clinic’s clients are all unique individuals—each quite different in their own way, with different personalities and views of their situation. This perspective is often overlooked because the military portrays our clients as a unified group of men with a common ideology. The fact that our clients are all Muslims means they share a religion, but they each have a unique world view.
The Talking Dog: Can you tell me the status of your clients' pending legal proceedings? Have any of your clients been designated for military commissions?
Martha Rayner: None of my clients have been charged with a war crime. Only three prisoners at Gtmo are currently charged, even though GTMO has been operating for close to six years.
Sanad Al-Kazimi has a pending habeas corpus case that is part of a petition that was filed by the Center for Constitutional Rights in late December 2005 just before the Detainee Treatment Act took
effect. Sanad’s petition to the court is simple—he respectfully
requests that the court order our government to come forward in an open
court and establish the factual basis for his imprisonment and the
legal basis—the rule of law that allows indefinite imprisonment under
the circumstances that brought Sanad to Guantanamo.
Sanad’s path to GTMO is terribly troubling. He was grabbed by some
entity of the United Arab Emerates in 2003—far away in time from the
invasion of Afghanistan and very far away from the battlefield of that
war. In secret custody, he was viciously tortured and then turned over
to Americans who transferred him to a CIA “black site” in Afghanistan
that has come to be known as the “prison of darkness.” Here Sanad was
subjected to more torture. A year and a half later, he was transferred
to GTMO, where he languishes.
After many, many years in U.S. custody, our government has never declared the legal and factual basis for imprisoning Sanad. Like all the Guantanamo habeas cases, Sanad’s case is stayed—fully frozen-- until the Supreme Court, yet again, determines whether our courts can rule on the lawfulness of the Guantanamo detention regime.
Mr. Al-Shimrani’s habeas matter is in a peculiar limbo—a situation that seems to arise frequently in the Guantanamo litigation landscape. Suffice it to say that his habeas matter has been the victim of the ping-ponging of higher courts, including the Supreme Court. We hope the courts will restore Mr. Al-Shimrani’s habeas matter, though of course, the hiatus of waiting for the Supreme Court to rule will prevent us from moving forward on the merits.
Mr. Al Shimrani also has a Detainee Treatment Act petition pending, a peculiar animal designed by Congress that is mired in the government’s continuing effort to block having to answer to a court of law. We are hoping Mr. Al-Shimrani will be part of the Saudi repatriation program that is supposed to be completed by January 2008; there are between 30 and 40 Saudis left at GTMO, and we hope that the program includes all remaining Saudis. The Saudi government has done quite a bit of work in pressuring—working with the United States-- to gain the return of its nationals
As I mentioned, our clients were not charged with a crime under the first military commission system, found to be unlawful by the Supreme Court, nor the newly designed military commission system, which remains controversial. As to what they are accused of, the publicly released information is thin and stated as conclusions without support. I have grave doubts as to the reliability of these conclusions. Recent declarations by officers who participated in deciding whether these men are our enemies have revealed deep problems with the evidence and process of decision making. And, since the military for years insisted one of my clients was a Saudi national contrary to readily available knowledge and evidence, I have little faith in the accuracy of military information in the context of Guantanamo.
The Talking Dog: Can you tell me something about your clinical program at Fordham, and how GTMO representations have fit into its mission?
Martha Rayner: The clinic was essentially formed around the representation of these men. I originally undertook the representation in the context of Fordham’s Criminal Defense Clinic-- we answered the call of the Center for Constitutional Rights for voluntary lawyers to represent prisoners at GTMO. I felt that a clinical program such as Fordham's could do this work and do it well and it felt like this work might contribute to curbing rule of law abuses in a post-9/11 world. The work became sufficiently encompassing to justify a clinic dedicated to the work. In the Fall of 2006, I formed the International Justice Clinic. The students engage in broad-based advocacy- not confined simply to legal proceedings, but to policy concerns, and interaction with the media, foreign diplomats, and officials of home countries, and to the extent possible, with our own government.
While a court has yet to hear the actual merits of our clients' cases, the court of public opinion is an area where we educate and air these important issues. It is, of course, difficult to get media interaction in the current climate. One of the barriers I've found particularly for television is the lack of visuals associated with this story and the military’s prohibition on media access to our clients. It is possible to do interviews with families, for example, but the media is unwilling to send people to Yemen or Saudi Arabia to do these interviews. At one time, I naively thought that our news outlets had bureaus in these countries. Part of the problem is that the United States public has so little exposure to this part of the world—due to a lack of US media presence in these countries.
The Talking Dog: My understanding is that you have one client (Mohammed Ali Nasser Mohammed) who, by virtue of his birth in Saudi Arabia (to Yemeni parents, and he has grown up in Yemen, and is for all purposes except GTMO's a Yemeni), classified as "Saudi", and hence, seems to present special problems re: repatriation. Can you tell me about that situation?
Martha Rayner: Ali has finally gone home to Yemen. This is certainly what he wanted. His situation was particularly troubling—he was held almost 6 years and almost half of that time the government had approved him to leave Guantanamo.
It’s unclear whether Ali was ever even considered an enemy of the U.S. The government put together Combatant Status Review Tribunals (CSRTs) after the Supreme Court decided there had to be some semblance of a fair process to justify the deprivation of freedom of hundreds of men. This was the Rasul case. The CSRTs were the government’s stab at legitimizing the imprisonment of hundreds of men, but they were explicitly designed to confirm the military’s determination that each man was a bad guy. Ali may or may not have been deemed a bad guy—I don’t know because the government has never made public Ali’s CSRT, but very soon after all the CSRTs were completed, perhaps within weeks, the government decided that there was no longer any reason to continue keeping Ali locked up. Through a few documents that the government has released to the public, I’ve learned that in January of 2005, two years after he arrived at Gtmo, the government didn’t want him there anymore. But almost two years later, when I first met Ali, he was still there.
I was stunned to learn this history. As best we could piece together—and countless requests to the government to discuss the problem, were turned down—the U.S. misclassified Ali as a Saudi, tried to send him to Saudi Arabia, but the Saudis, understandably, would not accept him since he was not one of theirs. The misclassification appears to be based on pure ignorance mixed with bureaucratic incompetence. Though Ali was born in the Kingdom of Saudi Arabia, citizenship in the Gulf States is not determined by place of birth, but by one’s father’s nationality. Ali’s parents are both Yemeni, thus he is a Yemeni national and in fact did most of his growing up in Yemen. Even after it was clear he was Yemeni and not Saudi, still he languished. It took the U.S. almost a year and a half after learning Ali was not a Saudi national to reclassify his true home country and arrange for his repatriation—he was sent to Yemen at the end of September.
This is what happens when there is no judicial oversight of a prison system. Some say Ali’s situation: locked up for close to six years –almost half of which his jailers admit they didn’t even see any need for—is rough justice. Rough justice--is that really what our country aspires to?
The Talking Dog: To the extent you can talk about it, can
you tell me the circumstances of your clients' apprehensions, and to
what extent, if any, they contend that they have been mistreated in
custody (whether at GTMO, Bagram, or elsewhere)?
Martha Rayner: I’ve described just the bold outlines of Mr. Al-Kazimi’s journey to GTMO. He was subjected to extraordinary rendition—the secret movement of human beings around the world in contravention of U.S. and international standards and principles. Americans would not allow our politicians to debate the lawfulness and utility of torture if they could sit with a human being subjected to such grotesque “techniques,” as I have.
The Talking Dog: You are, of course, in New York, in the same local media market as I am; can you comment on how you believe your representations (and the overall detention policy) in the "war on terror" has been covered by the commercial media here (broadcast, cable, print, etc.), and nationally?
Martha Rayner: I actually give high marks to the New York Times (whatever else one thinks of it) in assigning reporters to a regular GTMO beat. This represents a significant allocation of resources. It has enabled reporters to file detailed stories and educate people about the complexity of the issues involved and put a spotlight on GTMO. The Times deserves a lot of credit for the focus.
Television hasn't done much. A presence on t.v. news is critical, as this is where so many people obtain their news and information-- but for one thing, there is a lack of visual content coming out of Guantanamo—and any visuals are carefully orchestrated by the government.
I will say that radio has covered the issue-- public radio especially-- as perhaps the story is more amenable to radio, where the reading of transcripts, for example, can be very effective.
It’s important for the U.S. media to keep pushing the reporting on this important topic even when faced with the many obstacles involved.
The Talking Dog: Do you see an exit strategy (whether or not distinct from the exit of the Bush Administration itself) for (1) GTMO and (2) overall American detention policy in the war on terror, and if so (a) what do you see as likely to happen, and (b) what would you like to have happen? Do you see an exit strategy for your particular clients, and for Yemenis in general (now, I believe, the largest group left at GTMO)?
Martha Rayner: I don't see an exit strategy separate and distinct from the exit of the Bush Administration. The Administration does want to reduce the number of detainees at GTMO, and is sending men home regularly. This should have been done much earlier, and much faster. The talk now is that there are around "200 men" that are "too dangerous to be released" of whom 80 are to be charged with war crimes.
One solution is to bring the charges, and give those men fair trials (including accepting acquittals with immediate release). But those numbers indicate a class of over 100 men who our government claims can't be charged or released. This is inexplicable, and unacceptable. They presumably cannot be prosecuted because the evidence against them is tainted by torture and coercion. So where does that leave us? The Bush Administration uses torture, and then tries to hide the use of torture by avoiding the scrutiny of a public courtroom... the situation is untenable. I’m particularly troubled by the "lawyering away" of illegal actions—the use of smart and clever government lawyers who parsed the law into oblivion.
In some sense, the simplest solution is the best: if the men committed crimes, charge them; if convicted, punish, if acquitted (or not charged), release. Period.
The Talking Dog: Can you tell me (if you can) what efforts you have made vis a vis the Yemeni government or the American government (in addition to pursuing litigation) with respect to your clients?
Martha Rayner: We as lawyers certainly need to be aware of the political dimension to all this. The Europeans have gone home. The Australians have gone home. The Saudis are finally getting their nationals home. By contrast, countries that seem to lack power or leverage in dealing with the United States have more nationals left. Yemen is a classic example. Yemen could certainly exert more pressure, but it is not clear how much political capital it wants to expend for its men at GTMO.
The ultimate result has been arbitrary and unacceptable. We have to work now with home country human rights agencies, American lawyers, and the pan-Arab press... this will come down to the court of public opinion, both in the United States and the Middle East, and ultimately, will the home countries step up? Would the U.S. tolerate its citizens being imprisoned without charges or trial, indefinitely, in other countries... why should other countries tolerate such treatment of their people?
The Talking Dog: How do you think-- say, projecting forward 2 or 3 decades from now-- our Constitutional structure will emerge from how the Bush Administration has behaved with the "unitary executive" theory and other presidential perogatives taken (which to me, always comes back to the word "Padilla")-- whole, slightly damaged, seriously damaged... something else?
Martha Rayner: We will look back at this chapter of our
history very critically. I am fairly optimistic that ultimately our
Constitutional structure won't be permanently damaged. We will
recalibrate. A new Administration will realize that this was all a
mistake-- that Iraq, Guantanamo, etc. were terrible decisions.
We need to stop the "Global War on Terror". Just stop the concept, period. War must-- must-- be a tool of last resort. The GWOT is NOT rhetorical. The Bush Administration has engaged in a real war, with the tremendous power that can be unleased accordingly, of death, destruction the loss of rights and "collateral damage". To say we are at war... is a disaster. We need to end it. It is one thing to say we are at war in Afghanistan, or in Iraq... but not a GLOBAL war. The blunt force of war needs to be reined in.
The Talking Dog: Is there anything else I should have asked you but didn't, or anything else the public and my readers need to know on these subjects?
Martha Rayner: Like the concept of a global war, the increasing use of the term "Islamo-fascism" needs to stop. This provocative (and offensive) term and the fear it represents has led to the grave mistakes of Guantanamo and Iraq -- we are allowing fear based on gross hyperbole and overstatement of potential danger guide our actions. The use of the term that equates al Qaeda with the threat of fascist Europe or Naziism is absurd. To draw these parallels and exaggerate the situation we are now in has led directly to bad decisions, and to emergency and war powers that were not, and are not, necessary, which has led directly to misguided policies and courses of conduct that do not serve our ultimate interests.
The Talking Dog: On behalf of all of my readers, I thank Professor Rayner for that informative interview.
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