Carpenter and Truitt: Talking Dog Blog Interview, October 14, 2007

October 14, 2007

Stephen Truitt and Charles Carpenter are attorneys at the Washington, DC office of the firm of Pepper Hamilton (Mr. Truitt is now retired), and are counsel to three detainees at Guantanamo Bay, Cuba (one of whom was recently released). On October 9, 2007, I had the privilege of interviewing Mr. Truitt and Mr. Carpenter by telephone. What follows are my interview notes, corrected as appropriate by Messrs. Truitt and Carpenter.

The Talking Dog: Where were you on 11 September 2001?

Stephen Truitt: I was in or near our law firm's office, which is near the Treasury Building, around 200 yards from the White House, which was believed to have been a target. From the top floor of our office building, you have a good view of the Pentagon. There was also a view of the beginnings of a major traffic jam. I got to the roof to see things burning at the Pentagon. The skies were eerily empty, and were that way for weeks (rather than the usual plane landing at Reagan National every 30 seconds or so). And then the traffic jam ensued that reminded me only of the day Martin Luther King was assassinated, by comparison. I came to work on a motorcycle, and could get back to where I was going the same way-- often by going on sidewalks. The government simultaneously announced that bridges would be closed, but then told everyone to leave work, a particular problem for people who needed to cross into Virginia, not a small number in Washington.

Charles Carpenter: I was also in the office, and at one point in the morning, when the fourth plane was still believed at large (though it had by then crashed), a public address announcement told us to go to a shelter in the 4th level subbasement. We didn't think this was a good idea, and a small group of us went on foot. While we considered rumors of the metro closed, a colleague who had lived in Tokyo during the sarin attacks by the Aum Shinrikyo cult there suggested we not take the subway under these circumstances. We walked several miles to a colleague's house, and eventually, drove home from there.

The Talking Dog: Please identify your clients by name, nationality, and their current location (e.g., "Guantanamo Bay, Camp 6", "released to Saudi Arabia", etc.)

Stephen Truitt: We had one client who discharged us, Al Oteibi from the Kingdom of Saudi Arabia, who was released about a month ago. Next is Abdullah from Yemen, who is in Camp 6, GTMO. The third is Maher el Falesteny, which means "from Palestine", who has lived in Jordan and elsewhere, though he has no nationality or papers (and hence no country to say it will take him right now); he has been "cleared for release" since February as representing "no threat" to the United States or its allies. We are still wondering where he will go, given that he has never had nationality papers in his life. He presents a challenge to find a place for him, as he'd likely be at risk if he went to some of the likeliest places he might be sent. We have hoped to find a place for him in Serbia, perhaps, which has a Muslim population, and where we have connections with a local lawyer versed in Serbian asylum law and the United Nations High Commission on Refugees practices.

A little something about Abdullah--he is a small man, he listens well, like most of the prisoners he is quite religious, and surprisingly, laughs a fair amount despite the grave cruelties of his detention. While he believes lawyers are good to meet (perhaps to break up the monotony of his detention) he believes that his ultimate release will come not through us, but from Allah.

Charles Carpenter: He allows us to entertain our delusions that we can help him. He respectfully listens to our discussion of the evolution of the law, and he asks intelligent questions. He smiles, and allows us to play out what he believes is a game. The proof of the efficacy of our legal strategy is in the pudding -- he is still imprisoned, as are other prisoners who have "won" cases in the US legal system.

Stephen Truitt: And Al Falesteny in his mid-40's; he has a full beard, and is very intense. He is extremely bright... I remember one incident he relayed where he had been asked to take a lie detector test, but after suggesting he'd only agree if he was asked ten questions to which only he knew the truth or falsity of so he could test the reliability of the lie detector, the interrogators backed down.

Charles Carpenter: As to the Saudi client who discharged us, he made it clear that it was "nothing personal"-- I spoke to him recently, and he reiterated what he had said a year before, that he wanted no affirmative involvement in his captivity whatsoever, even participating in the American legal system which he believed acted to legitimate his illegitimate detention; I suppose you could say this is the equivalent of going limp or standing mute. He simply did not want to participate affirmatively in his own captivity. Perhaps one cannot argue with his approach, as he has been sent home before our other clients. As far as we know he is still in captivity in Saudi Arabia, but part of the rehabilitation program they have there, which includes, I understand, visits with family members.

The Talking Dog: Please tell me the current status of your client(s's) legal proceedings, i.e., district court habeas, circuit court DTA, Supreme Court review, etc. as appropriate.

Stephen Truitt: There are a lot of legal proceedings... it seems that like a hydra, when one head is cut off, three more appear!

As to Al Oteibi, he has a habeas case pending in district court before Judge Roberts (in which he technically represents himself), and no DTA petition. The government appealed from a 30-day order (that is, an order requiring 30 days notice before the prisoner is rendered, or transferred out of Guantanamo -- a number of prisoners have these orders, depending on which judge they have, and the government has appealed from all of them). Al Otaibi and Abdullah are on the same petition. El Falesteny has a habeas corpus case in district court before Judge Walton, and took an appeal of the denial of a request that we be notified before transfer. The appeal has not been acted on. We also filed a DTA petition in the circuit court for him; we have a scheduling order, and a motion for summary disposition/reversal was denied without prejudice, but remaining issues are presented for briefing.

As to Abdullah, we have a habeas petition pending in district court, and a DTA petition pending in the Circuit. As I mentioned, we have Judge Roberts for Abdullah and Judge Walton for Al Falesteny.

We have an order from Roberts barring destruction of any evidence to do with the prisoners (Abdullah and El Falesteny) and we served it on the directors of the FBI, CIA and others. Our position is that they could be in contempt, if they don't preserve evidence.

We also have a pending motion for summary reversal in Abdullah's Circuit Court DTA proceeding, not yet acted upon. That is interesting, as it relates to the Yemen-United States treaty whereby Yemeni citizens are to be treated in accordance with international law (as under Asakura v. Seattle, such promises are enforceable). The CSRT process, of course, is grossly and grotesquely out of compliance with international law. Our position is that the CSRT process is, thereby void as violative of the Treaty, and hence, Abdullah must be let go. This is a related idea (there the treaty used was the Geneva Conventions) that was used in the dismissal of the cases against Khadr and Hamdan by the military commissions-- they were not designated "illegal combatants"- the term in the Military Commissions Act-- only "enemy combatants"... and hence, the commissions can't try them! The government's hastily assembled military commission appeals panel decided that this was true, the CSRTs are indeed inadequate and indeed labeled only "enemy combatants", but, the commissions themselves have jurisdiction to determine whether or not the defendants are illegal combatants itself!

This is not so bad, for it provides the defendants with far more rights than under the CSRTs than they have now... but the court said that illegal combatants were not yet determined by any CSRTs, because the CSRTs have never been asked to determine that status! Hence, EVERYONE at GTMO is held illegally. They can only be prisoners of war, or civilians, but NOT illegal combatants! Accordingly, anyone so held there who is Yemeni, such as Abdullah, is entitled to the full panoply of rights under the treaty (i.e. the Geneva Conventions) and hence, reversal is required in Abdullah's case! Even under U.S. law, he can only be a P.O.W., or a civilian-- there is nothing else under the scheme set forth by the Geneva Conventions.

Charles Carpenter: By the way: Abdullah was not captured on a battlefield-- he was arrested in Pakistan, in a city, by Pakistani police, and handed over to the CIA for "enhanced interrogation". We have raised these points in the litigation.

The Talking Dog: Have any of your clients ever been identified as subject to the military commissions? Have you observed any rhyme or reason vis a vis who gets released (besides what I have seen described as "the lucky passport", and who remains incarcerated?

Stephen Truitt: None of our clients have been designated for the military commissions. The rhyme or reason for why some are released and not others is entirely political. The first released were nationals of our allies, the Brits. Then the Afghans. For El Falestini, no one is pounding on the door saying "return him to us", and hence, he languishes.

Charles Carpenter: There have been only two roads out of Guantanamo-- one as you noted is the "lucky passport" of being from the right country, and the other is having a "lucky procedure", or being released on the eve of embarrassing court proceedings, such as Mamdouh Habib or the Uighurs. There may be more out there, and as court proceedings press on, there may end up being yet more "lucky procedure" releases.

Stephen Truitt: As to the big picture, in terms of reconvening the CSRT's, that may be in the cards after the Bismullah case. The gloss on Bismullah by the D.C. Circuit is that if the military can't reconstruct the CSRT record, we'll just have to say "you lose, start over". This is not so good for the Detainee Treatment Act cases, but the DTA cases may be the future... The Supreme Court is looking closely at Bismullah and the likely massive remands for new CSRTs-- which help establish that these DTA review cases are certainly not the equivalent of habeas corpus as advertised by the Government-- they are just an utter mess.

Charles Carpenter: The Founders intended the core legal action of habeas corpus was not suspendible, and the Supreme Court will likely tell us just that.

Stephen Truitt: Given the Congressional attempts to modify the commissions that just amounted to codifying and rubber stamping what the Administration had done, clearly our best hope is the Supreme Court, and not Congress. Congress has stalled in efforts to repeal the Military Commissions Act's purported suspension of habeas corpus because everyone is waiting for Al-Odah and Boumediene, where for the first time since 1947, the Supreme Court granted certiorari on a petition for rehearing. The Supreme Court may force "on the merits" decisions on the habeas cases, and determine once and for all that under the CSRT proceedings and their bobtail Circuit Court review, is not an equivalent proceeding to habeas, and ergo, there is a suspension, which is improper. Will they go so far as to overrule Eisentrager? This is unknown, though it is likely the Court will go as far as it did in Rasul, finding that at Guantanamo the habeas corpus statute and the Constitution still apply. I'm betting on a clear victory out of these cases. There are a couple of original habeas actions at the Supreme Court, which will likely be held together with the outcomes in Boumediene and Al-Odah.

The Talking Dog: While much of the American media pretends that GTMO doesn't exist, a number of amazing developments are going forward on the legal and political fronts, and I'm wondering if you can talk about them, or others you believe relevant, specifically (1) Congressional efforts to modify the Military Commissions Act by expressly restoring the right of habeas corpus, (2) the Supreme Court's acceptance of Al-Odah and Boumediene, (3) the Supreme Court "original" habeas petitions brought by George Clark of Baker and McKenzie and, near and dear to my heart, by Candace Gorman, (4) the recent D.C. Circuit decision in Bismullah all but telling the government to reconvene a bunch of do-over CSRTs, and (5) the stunning reversal by the made-up "military commissions appeal" panel that reversed the dismissal of the Khadr and Hamdan cases (and of course the Supreme Court's declining to hear Mr. Hamdan's new petition for review to block those new and improved comisions)...? ... ready, set... Go!

Charles Carpenter: I think the courts in general, except for the D.C. Circuit, have looked at these issues and realized that the government is way, way out in front of where it should be on the law. This is why we are seeing some stunning reversals, reminiscent, for example, of the stunning reversal of large numbers of the public on their feelings toward the Iraq war.

Stephen Truitt: Thematic of the abuse of executive power, seems to be that the attacks on the World Trade Center Tower brought out a recessive gene in our system, that being that the executive can do what it wants, unfettered, based on its "inherent" or "implied" authority We last saw this with Nixon, who believed that if he wanted to, he could break into Daniel Elsburg's psychiatrist's office without a warrant, because the 4th Amendment doesn't apply if the President says its about national security. This was the same view the Bush Administration took with respect to the fake courts it created b y executive fiat, a view that was struck down by Hamdan. It failed the Youngstown test... the Constitution or Congress's statutes cannot be bypassed by the President simply by calling it national security, and this also applies to wiretapping, or torture... torture is particularly obnoxious because, of course, the government keeps altering its definitions to muddy the waters of existing defintions. The UN Commission on Human Rights finds these definition games particularly alarming, as it makes prosecuting people involved in torture much harder. The case of United States vs. United States District Court involved a domestic rebellion in Michigan, where the Supreme Court held 8-0 that warrantless survellance was invalid.. the statute permitted wiretaps, but not without warrants... The David Addingtons of the world will push anything right now, until they are slapped down. And the Supreme Court has slapped them down before, and will likely do so again.

As to your specific queries, on attempts to reverse the habeas provision of the MCA, while we expect little from Congress, it is really stalled pending the Supreme Court's Al-Odah and Boumediene review (which will likely find that prisoners have habeas rights, CSRT process as augmented by DTA/MCA is not an adequate substitute, and thus the MCA is a proscribed suspension). I believe the original habeas proceedings will also be held in abeyance pending the outcome of the Al-Odah and Boumediene decisions-- the last time an original writ was allowed was in 1920 or so. As to the D.C. Circuit in Bismullah last week, the panel's decision will make it more likely that all the CSRTs will need to be redone, if the CSRT regime survives the Supreme court's decision in Al-Odah and Boumediene, which I doubt it will; indeed, the Supreme Court will no doubt be horrified at this outcome further miring the proceedings, so that it helps Al Odah and Boumediene at the Supreme Court, but makes a lot of trouble below. As to the military commissions appeal panel, their decisions both affirmed and reversed the dismissal by the commission below. The important part affirmed was that an Enemy Combatant (EC) determination is not an equivalent to an Illegal Combatant (IC) finding. The part reversed requires that the Military Commission undertake to make the predicate IC finding before proceeding to a criminal trial. This puts that question before a forum with much more procedural rights that the CSRT which is a bad joke-- which is probably good for the accused. The significance is that not one CSRT found IC status, and ergo, under the Geneva Conventions this means the prisoners are either POWs or civilians with still greater rights, until otherwise determined by a proper tribunal, which has not yet happened. Equally important in the Appellate decision is the application of Common Article 3 of the Geneva Conventions (of 1949) to determine that the CSRT procedure was flawed. The appellate court did not mention the provisions of the MCA which made resort to the Geneva Convention verboten in deciding the matter! Another important point of the Khadr appellate decision is that it leaves open the argument that the CSRT which "punished" but was not a proper tribunal under Common Article 3, is hence outright void, a point which we have argued in El Falesteny and Abdullah. Likewise important was its reasoning that it is not enough to be associated with Al Qaeda or whatever, material support or action is required. This echoes the 4th Circuit's holding in Al-Marri and the Supreme Court's in Hamdi. Finally, as to Hamdan's current Supreme Court appeal and denial, this is irrelevant and was a stretch by Hamdan, as only rarely are petitions before judgment allowed. The last time I recall was Dames & Moore v. Regan, so his case will slog through the circuit (like everyone else's).

The Talking Dog: While I'm kind of on that hobby horse, can you comment on the media coverage (both American and international) of American detention matters, and anything else you believe relevant to these matters? Can you include blog coverage†in your†discussion, if you wish, and how significant do you believe blogs are to the overall coverage of these issues?

Charles Carpenter: The prisoners are certainly interested in media coverage, such as "are their hunger strikes getting covered?" Certainly, Anna Nicole Smith and O.J. Simpson are more important to our media. The media likes soap operas more than Guantanamo. On the other hand, at this point, everyone seems to have a general understanding about Guantanamo and the issues; I don't find ignorance on this, wherever I go , I find people generally well informed and generally appalled. The media coverage may not be as broad as we would like, but it is there. (I was recently at the Montana Bar annual meeting, and spoke briefly in favor of the bar resolution condemning the Administration's departures from the rule of law, and calling for the closure of the prison. The resolution passed, but more to your point, the resolution was reported in local news media and everyone I talked to before and after the vote was fairly well engaged. These were lawyers, judges, state legislators, to be sure, but even the young woman working at the ice cream stand, on overhearing us discuss it, had an opinion.)

Stephen Truitt: There is also a pernicious journalistic engine at work; after we explained that Anna Nicole's baby got more coverage than hunger strikes, on our next visit, one of the detainees wanted to know what happened with Anna Nicole's baby! On the torture question and to the extent that the media overplays the "ticking time bomb" torture scenario, the House of Lords recently held that evidence obtained by torture is always inadmissible in the UK, even when obtained without the connivance or knowledge of the government, and has been illegal to 1628; the Law Lords noted that references to the ticking time bomb torture scenario in the real world principally occur at seminars in moral philosophy!

Charles Carpenter: People seem to get, in my experience, just how unimportant most of the prisoners are. Just look at the Commissions: At Nuremberg I, we tried Bormann, Goering and Donitz-- the real leaders. At Nuremberg II, we try Hamdan and Khadr-- a motor pool driver and a teenager who threw a grenade!

As to blogs, there is certainly an effect. Josh Marshall has been driving a great deal of the conversation of late, so certainly, there is an effect. Andrew Sullivan has followed detainee issues, and I think he is fairly widely read. They don't have an effect on George W. Bush, but then, nothing has an effect on him.

Stephen Truitt: Also, the media follows a lot of things driven by blogs-- there are reporters reading this! As to the overall picture, there are a number of programs out there that we still know nothing about... indeed, this may be why Alberto Gonzales testified that he wasn't sure which intelligence gathering program he was being asked about! Of course, people forced to testify may have to disclose deep secrets... then the question is whether they lie under oath, which, like John Ehrlichman, would land them in jail. Some feel duty bound to perjure themselves.

The Talking Dog: Can you comment on the various recent apparent assaults on attorneys who have been representing GTMO detainees, starting with Cully Stimson's well-calculated railings and continuing with efforts to limit attorney visits to the latest "underwear" accusations leveled at Clive Stafford Smith? Do you believe that any of this is intended to intimidate you (leading question!), and do you believe it has intimidated any of the lawyers working in this area, and has it effected your own practice?

Stephen Truitt: I don't think that its had much effect on my practice. Our clients care about their own business, and that's about it. One of the lawyers involved in this was asked to go to Texas to meet with a prospective client who was doubtless supportive of the Administration-- he was in the Marine Corps, and a former helicopter pilot in Viet Nam. The lawyer's colleagues thought that representing GTMO defendants might queer the deal. Well, when the pilot met the lawyer, he slapped the lawyer on the back, and said "someone has to represent these guys." In short, I don't regard this sort of thing as a serious threat.

There is a continuing feeling by the government that the lawyers are "interfering" in interrogations. But as Ted Olsen told the Supreme Court in the Rasul case, what it amounts to is that the government can't torture if lawyers keep going down, and hence, the prisoners should be denied habeas corpus!

Charles Carpenter: We see the guys there every few months. We would soon find out if they were being tortured.

Stephen Truitt: The government's latest thrust is that the lawyers are unreliable, sneaky, and violate their protective orders. Certainly, the government distrusts the lawyers and does everything it can to interfere with our doing our jobs. If there is any doubt as to a lawyer's status, for example, it can take 6 months to clear it up.

Charles Carpenter: We haven't had any particular trouble in this area. Steve and I personally don't try to take a lot of things in, such as large piles of paper. This is easier for us than some of our colleagues, because we only have the two clients. Both of whom seem to like and trust us -- this makes our jobs easier, and limits the opportunities for the government to interfere.

Stephen Truitt: One recent example of troubling interference is what happened after Judge Urbina dismissed a group of cases after the Circuit's decision in Boumediene. The government took the position that the underlying protective order-- allowing attorney visits-- disappeared, and a more draconian order from the Court of Appeals had to be signed. The provisions went backwards and amounted to the government interfering in the lawyer client relationship... so Judge Urbina voided his dismissal order, and said that he found it small-minded on the part of the government to interfere with access to counsel.

The Talking Dog: Can you comment on the recent and perhaps stunning revelations in the New York Times regarding new and improved torture memos from (my former employer) the United States Dept. of Justice regarding new and improved torture memos from (my former employer) the United States Dept. of Justice? To the extent you can discuss this (and let me know if you cannot), can you tell me whether and to what extent your clients contend that they have been abused, mistreated or tortured in American custody, including with respect to receiving inadequate medical care?

Stephen Truitt: The new disclosures of torture memos demonstrate the same motives the Administration has always had: to muddy the water in this area to make it harder to prosecute for torture by blurring the very definitions of torture. Alberto Gonzales wrote memos deliberately taking into account that a future prosecutor (not him!) may take our torture statutes seriously... so the Administration cynically concluded that it could best avoid this by saying the Geneva Conventions don't apply! Other legal parsings amounting to how many angels dancing on the head of a pin such as torture that causes pain but not a fear of death are intended to exploit the “specific intent” requirement imposed by Screws v. U.S. on prosecutions under somewhat vague criminal laws. There the court added to a civil rights statute in a criminal context a requirement that a sheriff beating up a prisoner could only violate the plaintiff's civil rights if he specifically intended to deprive him of civil rights, and not just maim him! All this seeks to get around the total ban on torture, expressly outlawed under English (and hence, American) law since 1628.

In some sense, the idea is to put a gloss on arguably vague statutes that aren't so vague, but bar cruel, inhuman and depraved conduct. That has been most of the game-- to keep stripping down the ability to prosecute torture by moving the definitions around.

Charles Carpenter: And there is a significant faction in our government who simply believes torture works, and some way must be found to allow it. Their game is to find means to legally immunize it.

The Talking Dog: We are now six years and change past 9-11, and some or most of the men at Guantanamo will soon†have been there for six years, and certainly, in American custody in some for another for that time. Do you see any exit strategy, either in a macro for the whole of American detention policy, just for Guantanamo, or perhaps, with respect to your individual clients, and what do you see it as (whether legal, political, or something else)?

Stephen Truitt: Kind of like General Petraeus's narrow strategy for winning against the insurgents in Iraq, our narrow strategy is to cause as much trouble as possible to cause the liberty of our clients, though we don't know if the United States is any safer! We are moving towards open hearing. As Joe Margulies has said, the government will simply not back down until the moment we can hear the words "call your first witness."

Charles Carpenter: The government, when it is ultimately forced to, may have 40, 50 or 60 proceedings, but not over 300. At some point, it will be heading for the exits. The Saudis are going back in batches. The Yemenis could be taking more, and the pressure on them to do so will increase.

Our government should want to have the GTMO population down to around half its current level by the time it loses Boumediene in the Supreme Court, and then half again, by the time it has to implement the remedy. The government does NOT want 100 pending lawsuits with full blown discovery and everything else that will entail.

Stephen Truitt: An interesting development is the possibility that all prisoners would be freed; this is what the government has done in comparable cases (albeit small scale, such as Hamdi, or Habib)... but the government seemed surprised by the result in Hamdan... as General Washington said to General Braddock... "Beware of surprise!"

The Talking Dog: Is there anything else on these subjects that I should have asked you but didn't, or anything else my readers and the public need to know about these subjects?

Stephen Truitt: This is a very old story. Torture, abuse of habeas corpus, suspension of statutes (like Bush's signing statements)... goes back to the English revolution in the 1600's, and led directly to the habeas corpus acts of 1640 and 1679, the latter of which was entitled in part "An Act to Prevent Detention Across the Seas". Then, the Earl of Clarendon had private jails on Jersey and Guernsey, and at the request of the king, and would imprison people there supposedly beyond law... the whole thing was an attempt to outrun the habeas writ, and then, as now, the attempt will ultimately FAIL, as will unlawful wiretaps, official kidnappings, and torture, just as the President's fake courts were struck down in Hamdan.

Charles Carpenter: This has been an interesting and rewarding engagement, and I wouldn't miss it for anything, and look forward to what we hope will be its favorable outcome, and the restoration of the rule of law.

The Talking Dog: I join all my readers in thanking Mr. Truitt and Mr. Carpenter for that thorough and fascinating interview.

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