Rachlin: Talking Dog Blog Interview, May 24, 2007

Talking Dog Blog Interview
May 24, 2007

Robert D. Rachlin is a senior partner at Downs, Rachlin, Martin PLLC in Burlington, Vermont, and is on the faculty of Vermont Law School. Mr. Rachlin is counsel to two Guantánamo detainees, Saudi national Ghassan Abdullah Al-Sharbi, who was one of only ten detainees charged by the military commissions until that commission process was found unlawful by the Supreme Court's Hamdan decision, and Algerian national Djamel Amezine, who has not been charged. On May 22, 2007, I had the privilege of interviewing Mr. Rachlin by telephone. What follows are my interview notes, as corrected where appropriate by Mr. Rachlin.

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

Robert Rachlin: Then, as now, I was sitting right here in my office, in Burlington. The news of the first attack came quickly, and we went into a conference room to watch television, and actually watched the second plane strike the tower. After the first plane hit, there was some thought that it might be an accident. However, having myself been a pilot for many years and a flight instructor, and looking at the weather, as today, a beaut[i]ful and clear Tuesday morning, I thought otherwise. Perhaps had it been instrument weather, coupled with bad radar or something like that, a poor pilot might have hit a building... but on a clear day, there was no way an airliner would have crashed into the World Trade Center unless it was intentional.

The Talking Dog: Please identify your clients' names and nationalities, and what it is they are accused of, and where their current legal cases stand, given the recent court developments. I understand that Ghassan Abdullah Al-Sharbi had previously been charged with conspiracy to violate the laws of war (only one of ten so charged), but has not been re-charged thus far; is that correct? Please tell me how you came to be involved in representing them.

Robert Rachlin: Al-Sharbi was charged before a military commission with conspiracy to engage in hostile acts against the United States and its allies. After the first military commissions were invalidated by the Hamdan case, the Military Commissisons Act of 2006 ("MCA") was passed by Congress. But, Al-Sharbi, a Saudi national, has not been charged under the MCA. The Algerian, Djamel Amezine, has been accused of (in the Combatant Status Review Tribunals, or "CSRTs", rather than the commissions) with having been "associated with a terrorist group, i.e., he was found in a place where Al Qaeda people were. He declined to appear before the CSRT, and was thus unsurprisingly considered an enemy combatant. He was in a house with an Al Qaeda individual, during a period when he and others were trying to escape from Afghanistan through the Tora Bora Mountains. After September 11th, our attacks on the Taliban government made Arabs in Afghanistan very unpopular, and many tried to get out, and the Tora Bora mountains were one of the escape routes. Djamel was picked up with the collaboration of Afghan guides, and then turned over to Pakistani bounty hunters who turned him over to the Americans; we understand the going rate was $5,000 per head.

The Talking Dog: Can you tell me your personal impressions of your clients, and your personal impressions of Guantanamo Bay (including of soldiers and other people you've encountered there as well as the place itself)?

Robert Rachlin: The Center for Constitutional Rights (CCR) in New York was spearheading the effort to obtain private counsel for the detainees. They solicited the American College of Trial Lawyers, and the head of the Vermont chapter sent around an e-mail to the fellows of the ACTL, of which I am one-- and I said "well, someone's got to do it." That was how I came to represent Amezine.

As to Al-Sharbi, his military appointed counsel, Lt. Cmdr. William Kuebler, was looking for assistance, and so advised CCR. Well, fools rush in where angels fear to tread... so I accepted that representation as well. I then became involved and got to know Bill and developed a working relationship with the Office of Chief Defense Counsel and traveled to GTMO with them-- on the military rotator-- rather than with regular habeas counsel on the quasi-charter flights out of Ft. Lauderdale.

Al-Sharbi and I have actually never met. I was formally engaged by his father as "next friend." Al Sharbi has refused all counsel, including his detailed military counsel. Of course, the attorney client relationship is consensual. I was on a panel recently, and will be on one again, where this issue has come up-- the issue of someone who doesn't want counsel.

Well, there is a question of whether there is an issue of consent and a consensual relationship where a client is under a disability-- such as being under-age, or having a mental illness, or, perhaps, being confined incommunicado from the rest of the world under as in the case of GTMO detainees... my argument is that such people are rebuttably presumed to be acting under some kind of a disability. I'm still exploring this-- there is no final answer. While I haven't met Al-Sharbi, I have seen him at a commission proceeding; he has met Lt. Cmdr. Kuebler- and even that took some doing. Al-Sharbi has rejected counsel in "open" court (to the extent the commissions are open).

As to my other client, Djamel Amezine, he is clean cut, amiable, and courteous. He has a sense of humor. I’m not allowed to tell you what's in the classified government dossier, but I can tell you what is not there: there is nothing to suggest that he raised a finger against anyone. He happened to be in a place where there were bad people-- indeed, he was trying to escape Afghanistan at a time and place when bad people were escaping, and ergo, he is bad! He had gotten out of Algeria during a previous round of that country's troubles. I understanding he might have been traveling with a false passport.

The Talking Dog: Were you involved in the recent lobbying effort that Guantanamo habeas corpus attorneys took to members of Congress? Whether you were or not, can you comment on it? Do you see any possibility that Congress will take action with respect to Guantanamo?

Robert Rachlin: I was not involved specifically in that action. However, I have done my own "version". I know our senator, Pat Leahy, now Chairman of the Judiciary Committee, very well. I visited him in his office, with military defense counsel Major Tom Fleener and Lt. Cmdr. Kuebler, and we talked about the circumstances of Guantánamo. Regardless of the rest of the country, our Vermont Congressional delegation is firmly on the side of the angels on this issue.

Pat Leahy is co-sponsoring a bill to amend the Military Commissions Act to restore habeas corpus with Sen. Arlen Specter. I don't know where that stands, but certainly, as Leahy and Spector are respectively the chairman and ranking minority member of the Judiciary Committee, it will surely get a committee hearing.

And so while I was not involved with that particular round of Congressional outreach, I have done my own "brainstorming" with lawyers, officials and legislators on these issues.

The Talking Dog: Can you comment, in general, and what appears to be the Bush Administration's campaign this year to attack habeas lawyers, from Cully Stimson's remarks to the latest court motion to limit (or end) attorney visits to Guantanamo?

Robert Rachlin: Looking at it objectively, the law serves as a constraint on government, and specifically, as a constraint on the executive and executive power. Any executive tries to expand his powers-- it's almost a law of nature. And lawyers often stand in the way of that expansion, so the executive tends to attack lawyers.

Stimson's comments were deplorable in their own right from the standpoint of our traditions and values. But what has emerged, and is amazing, is that he got so little support. Indeed, the media and the press took him to task to the point were he resigned-- and this is a good sign. He's "the gift that keeps on giving""-- he promoted the rule of law by making naive and indefensible attacks on it.

The recent attempt to limit visits also smacks of a petulant effort to strike out at those trying to put brakes on executive power. Now, if the habeas cases are dismissed per the recent Al Odah and Boumedienne cases, and the government argues that, as a result, the protective orders applying to lawyers in those cases no longer apply until the lawyers file new Detainee Treatment Act (DTA) petitions (granting a very limited review to the D.C. Circuit from the CSRTs-- literally review only of whether CSRT procedures themselves were properly followed) and obtain new protective orders-- that would certainly be a far sounder tactic legally than simply the blanket ban being sought for "security" reasons as now.

But again. as lawyers are trying to constrain executive power... the attacks come, no matter how ridiculous some of the attacks may be.

The Talking Dog: Can you comment over all on your view of how the media has handled the recent assaults on attorneys, and can you comment on how the media has handled American detention policy overall?

Robert Rachlin: My impression is that the media have been overwhelmingly against the detention policy. Certainly, most editorials in the "responsible" news media seem to be uniformly against it, joining, by the way, most other countries in the world.

The Talking Dog: What has been your personal experience with the military commissions (to the extent any proceedings took place before the Hamdan decision found the first version unlawful), the combatant status review tribunals, and habeas corpus proceedings, on behalf of your clients? Have you taken any action in light of the recent Boumediene decision by the D.C. Circuit Court and the denial of certiorari by the U.S. Supreme Court?

Robert Rachlin: The military commissions have two extremely serious flaws (not military commissions in general, but I'm talking about the particular commissions associated with Guantánamo). These flaws can be classified as systemic and procedural.

First the systemic flaws. The Secretary of Defense appoints the convening authority or appointing authority (different terms for the same thing),and the chief defense counsel and the prosecutors. The convening authority appoints the judges. This is a serious flaw. In regular courts martial, the convening authority does not appoint judges. But in this case, the highest prosecuting authority, the Secretary of Defense is appointing the judges via his appointed convening authority. So... the convening authority, answerable to the SecDef, is also appointing the judges who will judge the cases they choose to prosecute.

It is generally believed by people involved in defense that the judges have been selected on the basis of their proneness and propensity to convict. The judges are all military judges, selected from the court-martial system.

Another problem is that the convening authority acts effectively as a court of appeal from the commissions. One actual example was the question of whether detainees would be allowed to defend themselves. The presiding officer referred the question to the convening authority, who said “no.” This is a serious departure from Anglo-American notions and traditions of separation of prosecutors from judges and how past military commissions and courts martial have been conducted.

This systemic flaw is not merely theoretical. A couple of years ago, Brigadier General Hemingway-- assisting the convening authority -- announced that everyone at GTMO was guilty. In lectures, I give the analogy of an individual charged here in Vermont in one of our district courts. The Chief Justice of our Supreme Court, which might review that individual's case, announces before trial "that guy is guilty"... well, this just cannot be in a system that respects the rule of law.

Besides the structural flaws, there are serious procedural flaws. For example, a detainee can be convicted purely on hearsay evidence. If the government contends that evidence is "sensitive", it can be kept from the hearing of the detainee - in other words, a detainee can be convicted on evidence about which he knows nothing. There is, of course, no application of the Federal Rules of Evidence. The chief rule of evidence is that anything the presiding officer considers “reasonably probative” may be admitted.

And there is a Catch-22 on torture. Evidence obtained by torture cannot, under current rules, be admitted. But ... no evidence is permitted as to the manner of interrogations-- so you cannot prove that evidence was obtained by torture! This is right out of Kafka-- a truly abominable system. The individuals involved in this and appointed as prosecutors and judges are nice, courteous people as individuals, but they are operating in a framework that is a reproach to everything we stand for.

The Talking Dog: Do you have any knowledge of whether the military intends to re-charge Mr. al-Sharbi under its "new and improved" military commissions apparatus?

Robert Rachlin: Again, I don't know; he has not been re-charged thus far.

The Talking Dog: Can you describe what abuses your clients have suffered, and to what extent (if any) you have observed abuse or abusive conditions?

Robert Rachlin: I cannot speak about my own clients. However, FBI reports of abuse that FBI agents actually observed have been released and de-classified. So.. abuse has been documented by the FBI-- which will be rather difficult to dismiss as a "tool of the left-wing"; the specifics are reported in declassified documents, which I possess.

The Talking Dog: Do you see any kind of "exit strategy", for your own clients or for Guantanamo or American detention policy in general (for example, has your client ever been offered anything like the guilty plea that Hicks was offered), or do you concur with my view that Guantanamo and most of its current residents will remain in place as long as George W. Bush is the President?

Robert Rachlin: Overall, the only exit strategy will be political. I'm afraid that the operation of law will not spring anybody-- not in the nexxt year or two, anyway. The political pressure, however, is growing.

One possible exit strategy is to close GTMO-- decide who are the really bad guys-- after all, not everyone we are holding there are boy scouts-- and, if we have the evidence, charge them, transfer them to a secure facility within the United States, and then try them, giving them the normal procedural protections that we give others we try.

The concern about the security associated with "bringing terrorists to the United States" is silly. We tried Moussaoui in Virginia. He was convicted in a proceeding that no one criticized as unfair. Needless to say, no jihadists were running rampant in the streets as a result of that. Again, the exit strategy is to decide "who are the bad guys?"-- who committed cognizable offenses under American or international law, and then charge them and try them. If they are acquitted, send them on their way.

Of course, a lot of this will depend on public opinion, and the public is just not educated about these issues. Further, most Americans take the unfortunate attitude (as is often the case with Iraq) of, "well, it doesn't affect me personally, so I don't care that much").

We need to elect people to Congress who aren't wimps-- people who are less afraid of having the support of a half-educated electorate. And we need a much more responsible media, a media that gives actual information (such as what we're doing right now with this interview) rather than just sound-bites. And we ultimately need people to get more balanced information than is available on their 6:30 newscasts.

The Talking Dog: I join all of my readers in thanking Mr. Rachlin for being so generous with his time and for that informative interview.

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