Falkoff: Talking Dog Interview

Marc D. Falkoff is a Professor of Law at Northern Illinois University in DeKalb Illinois; Professor Falkoff is co-counsel with the national law firm of Covington & Burling in the representation of 17 Yemeni nationals held as detainees at the Guantanamo Bay detention facility. On March 28, 2007, I had the privilege of interviewing Marc Falkoff by telephone; what follows are my interview notes as corrected by Professor Falkoff. [I first interviewed Mr. Falkoff together with his then colleague at Covington & Burling, David Remes, in February 2006; that interview has not been published.]

The Talking Dog: Thank you for speaking with me again. I usually start with this question because a surprising number of people I've interviewed were in downtown Manhattan on that morning and within a hundred yards of the World Trade Center (as were my brother and I). So, where were you on September 11th of 2001?

Marc Falkoff: I was in Denver clerking for a federal judge. When I went to the court house, I had heard that a plane had flown in to the World Trade Center. It occurred to me that at that very moment my wife was on a plane into New York, from London on a business trip. At that moment, we had no idea how many planes were involved, or which planes. I later learned my wife's plane had been diverted to Canada. I was pretty much a wreck from all that.

The Talking Dog: Please tell me the current status of your 17 Yemeni clients? Have any been released? Have any of your clients been designated for trial by military commissions?

Marc Falkoff: All 17 of our Yemeni clients are still at Guantanamo. A total of 107 Yemenis have been held at Guantanamo; prior to 6 weeks ago, when 6 Yemenis were returned, only 2 Yemenis had been repatriated from Guantanamo in 5 years. None of my clients have been designated for the military commissions.

The Talking Dog: Did you– or your clients– know the Yemeni(s) who committed suicide last year?

Marc Falkoff: Certainly, our clients knew about the suicides. We haven’t asked them directly whether knew him (I believe there was only one Yemeni suicide)... they certainly knew of him. I haven’t had any specific conversations on the subject.

Of relevance, three of our clients are on the Defense Department’s “transferrable list”... there are 80 or 90 detainees overall on that list, eligible to be transferred out of Guantanamo as soon as a receiving country agrees to take them. The list is from both earlier Administrative Review Board and other earlier determinations... as you know, the ARB’s began in late 2004. This is somewhat subtle, and no one seems to understand this, but what it means is that some of these men have been eligible for release– determined by our own military to present no threat whatsoever– for a period of several years, but instead, they languish at Guantanamo. Three of my clients are sitting at Guantanamo even though the United States military has determined them to be of no danger whatsoever.

The Talking Dog: Can you tell me what assistance you are rendering to Professor Neal Katyal and (former!) Commander Charlie Swift in their continued appellate work for Mr. Hamdan, and where do you stand with respect to participating in appeals of Boumediene and the recent D.C. Circuit cases upholding the Military Commissions Act?

Marc Falkoff: I do work with Neal and Charlie... but our clients' interests are somewhat distinct. We certainly worked on an amicus brief for them some time ago. Mr. Hamdan was charged by the first round of military commissions; that puts his case on a different track from our clients’ cases. None of our guys have been charged. We are all seeking review in the Supreme Court of the recent D.C. Circuit decision; a number of certiorari petitions are pending... we may be hearing something from the Supreme Court on them as early as this coming Monday (2 April).

The Talking Dog: Does it look like any of your clients will be charged by the “new and improved” military commissions? What, if you can tell me, do the CSRT charge sheets and other available data tell you that your clients are accused of having done?

Marc Falkoff: Again, none of our clients has been deemed “eligible to be charged”... we know of no reason why they would be, though there is one client about whom we know virtually nothing. As you know, our 17 clients are the subject of four separate habeas cases, including different judges, and the government has utterly refused to let us know anything about one of them... Hassan bin Attash... is somewhat of an unknown. Unfortunately, we have not been able to establish enough trust with him to talk about what his background is and what might be the basis of charges... and the government has refused to provide any information about him, and federal judge Royce Lamberth of the D.C. District Court has likewise refused to order them to provide factual justification for his imprisonment.

The Talking Dog: Let’s jump to other current events... can you comment on the David Hicks guilty plea?

Marc Falkoff: This is not unexpected, by any means. The Bush Administration will doubtless try to make hay from this as a success story of its military commissions and detention policy. But there is little there there. Hicks presents a unique situation: the Australian public is up in arms about the treatment of its national. The Australian government has therefore put pressure on the Bush Administration to find a way so that Hicks will go home. From Hicks’ perspective, he just wants to get out. Under the bizarre rules of Guantanamo, even if Hicks were sentenced to a term and served it, or even if he were acquitted, he could still be deemed dangerous and held at Guantanamo indefinitely. So he took the first chance he could [t]o get back to Australia. Indeed, for all we know, he could be released the minute he sets foot in Australia, or at least shortly thereafter.

This is a one-off– in no sense a test of the commissions system. The only thing the commission did– in the 20 minutes it was in session– was to find two of Hicks’ lawyers ineligible and disqualify them from the defense team! This hardly gives confidence that the system works.

The Talking Dog: Let me stay on current events a moment... can you also comment on the recent Khalid Sheikh Mohammed confessions, where KSM confessed to being responsible for orchestrating the 9-11 attacks, the Daniel Pearl murder, and everything else from kidnapping the Lindbergh baby to global warming?

Marc Falkoff: KSM is a remarakable thing. Here we have a major player in al Qaeda who has confessed to a major role in 9-11. And yet, rather than being met with the same fanfare as, say, the capture of OBL, instead you have a shrug of shoulders, or a genuine dismissal simply because you can’t trust anything he said. There is an unknown extent to which he talked just because he was beaten down... we just don’t know whether to believe him re: Daniel Pearl, or whether this is the result of braggad[o]cio, or abusive treatment... We put ourselves in a pickle here. In one sense, we should be saying “Great! We CAUGHT one of the bastards!” and instead, we have doubt...

The Talking Dog: I think it’s worse than that... this has become triviliazed– the stuff of late night show jokes...

Marc Falkoff: I absolutely agree– this has gone down in a horrible way. Of course, the real test is not KSM, or Hicks, but what happens when guys start asserting their innocence? Just remarkable.

The one thing that is clear is that the Administration has insisted that most of the guys at GTMO will never be tried. Of course, even the New York Times misses the point about how things are done... for example, it seems to misconstrue the CSRT (combatatant status review tribunal) process, which is NOT a first step toward the commissions. For most guys, it’s the beginning and the end. The Administration says it will try 80 people– at the absolute most.

In the end, at GTMO you have at most 30-50 guys who MIGHT be involved with al Qaeda... otherwise you have a bunch of innocent guys swept up after the fact, or you have unfortunate Taliban recruits... what will you do with them? This is a problem of the Administration’s own creation.

The Talking Dog: I’ve intimated elsewhere that the Administration’s grand strategy is to make this someone else’s problem in January, 2009...

Marc Falkoff: That certainly seems to be the case. At this point, Yemenis, of all the Yemenis sitting there, they do not appear, as a group, to be more guilty than any other nationality.. They are held in continued detention because of politics. When the Yemeni government makes a deal for their release, their numbers will go down. But you’re certainly right that GTMO will not close while George W. Bush is in office.

The Talking Dog: Please tell me anything of particular note about some of your clients, or of events or observations that you find particularly important.

Marc Falkoff: One of our clients is Adnan Farhan Abdul Latif... he was in Afghanistan literally looking for medical treatement– he had an injury he suffered from an accident in 1994, and was looking around the world for affordable treatment... He was and is in frail shape, physically and psychologically. During my recent visit with him, he was “IRFed”...

The Talking Dog: That’s of course, I R F, for immediate reaction force...

Marc Falkoff: Correct– a group of soldiers, in body armor, run in and essentially beat him up. He presented a woeful sight– of his eyes, one was swollen shut, the other was black and blue, he had contusions all over his body. What he did to get “IRFed” was to step over a line in his cell when he was served lunch (and that means shoved through a slot in his cell door). He had psychological problems before his detention. It is unclear as to whether he is taking his medication... he certainly doesn’t trust the doctors at GTMO, and he has occasionally been a hunger striker. He was talking about suicide, and he had attempted suicide.

We had asked the Department of Justice for permission to have our own doctor examine him, because we are literally trying to prevent someone else from dying at Guantanamo. Adnan could die there. We are contemplating asking for court intervention. Unsurprisingly, the government’s response is “the medical care he receives is adequate”. Further, given recent Congressional action, it is not unlikely a court will just conclude it lacks jurisdiction to decide any of this... superficially, the court doesn’t want to be supervising the military.

The Talking Dog: Can you tell me the status of those detainee/clients who had previously attempted to fire you (and the Covington & Burling firm)?

Marc Falkoff: A number of our clients, over all these years of litigation, have told us that they do not want a lawyer.... they do not want to participate or be complicit in a farcical system. And then, by our next visit, we talk about their case and about such news as we are allowed to convey and then we are unfired. There is a tremendous amount of frustration– both with us, and of course, with the legal system. The slow, if not glacially slow pace of the courts here is causing unbelievable frustration. In the end, we do not believe that any of our clients have “fired us”, and in any event, we will certainly do nothing to compromise their legal rights or position while we represent them.

The Talking Dog: Can you tell me if any of your clients are on hunger strike?

Marc Falkoff: As far as I know, three of our clients are now on hunger strike– Abdul Salaam Al-Hela and Farouk Ali Ahmed, and Uthman Mohammed Uthman. Farouk is just the sweetest young kid... he has had no disciplinary problems. He is someone who would likely be released in the first wave, if the releases start for Yemenis. This kid with such a cheery disposition is hunger striking... it’s like your little kid brother... on hunger strike. It’s heartbreaking....

The Talking Dog: Of course going on hunger strike is pretty much the only power these guys have...

Marc Falkoff: Well, that’s exactly right. And that’s just it.

The Talking Dog: Since last we spoke, have you had any interactions with your clients’ families in Yemen?

Marc Falkoff: I went to Yemen again last summer. I met with a number of families, who were happy to receive updates, but were extremely upset about the continuing detention of their sons, brothers, fathers... it was more frustrating because as of last summer, we had nothing but bad news. We couldn’t buck the legal logjams, and we effectively knew nothing about what was going to happen. You try to be optimistic... but it’s not easy.

The Talking Dog: Can you tell me what Yemeni government reaction (and if applicable, public reaction) seems to be to your clients’ continued detention?

Marc Falkoff: There is not much “public” reaction... if there is any. In Yemen, what the government does is extremely important. I wrote an op-ed in the Yemeni papers– in English, also translated into Arabic– urging the Yemeni population to motivate its government to bring their kids home from GTMO. Yemen may be hesitant to sign the statement required by the United States saying that they won’t torture anyone released to it... the “official” thinking as I can fathom it is that they fear it implies they DO torture their prisoners! But this is silliness... Germany signed the same statement, and Germany does not concede that it tortures prisoners! We are frozen out of any inter-governmental negotiations. The State Department doesn’t let us have knowledge of any of this. We have spoken to members of Yemen’s parliament, but we have no access to the all important President Saleh.

The Talking Dog: While I remember to do so, let me ask you about the poetry project you are putting together.

Marc Falkoff: The poetry project started a couple of years ago. I got poems in the legal mail, from our clients. As I have a doctorate in English literature, I found it extremely interesting. It came about slowly.

I saw a group of poems by Brian Turner, an Iraqi war veteran. These were terrific and moving poems about the experience of being a soldier. I thought that this is something we can do for our prisoner/clients– about their experiences as prisoners. And so I asked our clients to ask around to other clients. One of the detainees from Pakistan was quite an accomplished poet.

This is, of course, a difficult endeavor, because the military presumes that everything the detainees write is classified, and the military refused to declassify a number of poems, claiming they might contain “hidden messages”. But I got a sufficient number of poems, in translation... many were confiscated, and/or the military refused to declassify them... or sometimes, would declassify an English translation but not the original Arabic...

Also, a number of poems were never intended to be kept. In the early days at GTMO, the prisoners were not provided with pen and paper; detainees would carve poems on styrofoam cups provided for meals– often they would write two line poems, and pass the cups on... and others would write more, and then the cups would be collected and thrown into the rubbish at the end of the day.

A number of poems– especially by the Pakistani poet– are remarkable. A poetry magazine has published some, and the University of Iowa Press will be publishing the collection– which I am editing now even today. We have a release date of August 15, 2007– please buy several copies!

The Talking Dog: I certainly plan to; maybe General Geoffrey Miller can autograph a few... I smell an E-Bay coup! Are any available publicly now?

Marc Falkoff: Good luck on that. One or two of the poems are available on the internet, such as at Harpers.Org. And if you look around on the internet, you can find some of them. The book will feature an introduction by myself, and an after-word by Ariel Dorfman.

The Talking Dog: I’m going to combine my penultimate and last (lawyer’s weasel) questions: Do you see an exit strategy for GTMO and the rest of American detention policy, at least while George W. Bush is in office, and what else do my readers and the public need to know on these subjects (or what else should I have asked you but didn’t)?

Marc Falkoff: As to an exit strategy, I certainly don’t consider myself a genius. But that said, Bush has screwed things up royally. He doesn’t know how to extricate the United States from the mess he has made, and I suspect that he isn’t going to. And so we have 390 or so men still being held... almost all of them can go home, no problem, at some point. Maybe 80, 90, perhaps 100, present some arguably threat... so what do you do with them?

Well, GTMO is a public relations disaster. So close it: bring the detainees still held into the United States– lock ‘em up at Fort Leavenworth. And charge the people who violated the laws of war or United States laws– and then put them on trial, using either the federal courts or ordinary courts martial. And that’s it. Period. As to those captured Taliban? Treat them as ordinary prisoners of war. I will concede (my own opinion, I’m not speaking for my clients) that the Afghanistan conflict is still waging, and there is an arguable justification to hold combatants from that while those hostilities are still going on... there is a great presumption to the executive to determine when a particular conflict is ongoing, and as to Afghanistan... it certainly is ongo[i]ng.

But in the end, these are PEOPLE... most of whom did nothing. As to those who committed a crime in our estimation? PUT THEM ON TRIAL.

We have to stop pretending that there is such a thing as a “war against terror”. We do not know what those words mean. They mean nothing, of course. We have simply handed perpetual martial law powers to the President by continuing to believe those words.

What is the worst thing that will happen if we have trials? Evidence obtained by torture will be excluded... so we can’t convict.

The Talking Dog: But isn’t that the bottom line here? Only being a little snarky... isn’t the argument that these are TERRORISTS, more powerful than thousands of nuclear armed Soviet ICBMs, Imperial Japan, the Third Reich and the Confederacy combined?

Marc Falkoff: Exactly. But what this does is aggrandize the members of Al Qaeda. When we went to GTMO for the first time, we expected to be confronted with super-sly terrorists– super calculating, like the best top notch secret agents...

The reality is that this is absurd. If any of these guys are guilty, I submit that the United States has enough credible evidence not obtained by torture to convict some of them... although for most of them, if you remove the evidence tainted by torture and coercion... you have nothing left. Why is the evidence obtained this way untrustworthy? BECAUSE IT IS FALSE.

The British historian Andy Worthington is working on a history– he is piecing together the available CSRT material, and showing what the GTMO detainees are... and it is not much. What appears to have happened, after the Tora Bora bombing, two groups of people took off– one headed north to the White Mountains, the other headed on the road to the border crossing at Khost... The United States military decided that AQ leadership was heading for Khost, and began bombing and attacking that column... It turns out that the United States military picked wrong! They were attacking the wrong people– the Al Qaeda leadership and fighters were in the other column. But when the group attacked reached Khost, it included a large number of Arabic speakers, so the United States decided that THESE were the Al Qaeda fighters! Simple as that! You can explain nearly 1/3 of the Yemeni GTMO detainees just by that one incident! Truly mind-boggling!