Talking Dog Interview, November 20, 2008

Buz Eisenberg is an attorney "of counsel" to the firm of Weinberg & Garber, P.C., in Northampton, Mass. and is a professor of constitutional law and criminal justice at Greenfield Community College in Greenfield, Mass. Mr. Eisenberg represents four current or former detainess at Guantanamo Bay, Cuba. On November 3, 2008, I had the privilege of interviewing Mr. Eisenberg by telephone. What follows are my interview notes, corrected as appropriate by Mr. Eisenberg.

The Talking Dog: My customary first question is, where were you on 11 Sept. 2001?

Buz Eisenberg: On September 11th I was teaching a constitutional law course. As I left the classroom, a colleague, David, saw me and stopped. David is a pilot with his own small aircraft with whom I had flown on occasion, so we have discussed the safety and the dangers inherent in flying. He asked “did you hear, apparently a small aircraft crashed into one of the world trade towers in Manhattan?” He obviously had very little information at that point (it was maybe 9:30am.) I then went to the Behavioral Sciences office to get my mail, where the Dean, Kate, was, frantically yet fruitlessly, trying to get her sister on her cell-phone. Her sister worked in that tower. It turned out that morning was the rare occasion in which she was late for work, having stopped for coffee and a pastry and encountered a long line, which Kate didn’t learn until much later in the morning. I learned in the ensuing days that one of my clients perished on American Airlines Flight #11, and I had two other acquaintances who died in New York City that morning.

The Talking Dog: Please identify your Guantanamo Bay based clients, by name, nationality, current location (such as "Camp 6, GTMO", "repatriated to Algeria" or whatever applies), and any personal details about them that my readers should know, whether of family, personality or anything else (including whether your clients claim to have suffered abuse at GTMO, Bagram or elsewhere while in American custody). Also, have any of your clients remaining at GTMO been "cleared for release" or "designated for commissions"?

Buz Eisenberg: My four clients are:

(1) Abdul-Salam Gaithan Mureef Al-Shihry; Saudi Arabian; repatriated to the Kingdom of Saudi Arabia in June of 2006. He was one of the younger detainees (17 at time he was taken into custody.) His litigation remains active in order to erase the “enemy combatant” stain. The Government contends that it is mooted by transfer, and that the court now lacks jurisdiction.

(2) Farhi Saeed bin Mohammed; Algerian; Camp 6, GTMO. He has been cleared for release or transfer on 2007 as a result of a February Adminstrative Review Board (ARB).

(3) Mohammed Abdal Al Qadir; Algerian; transferred to the control of Algeria on 8-26-08. His litigation also remains active in order to erase the “enemy combatant" stain. The Government also contends that his habeas claim was mooted by transfer, and that the court now lacks jurisdiction.

(4) Mohammed Abdullah Taha Mattan; Palestinian; Camp 6, GTMO; not cleared for release or transfer.

All of these men are the victims of abuse while at Guantanamo. Without violating the Protective Order, I can say that the holding of someone in virtual isolation indefinitely, without charges or reason for hope, by definition amounts to “abuse.” Physicians for Human Rights published a study that concluded that it meets every medical definition of “torture” per se.

The Talking Dog: As best you can from publicly available data including CSRT reports, what is it the United States government contends your clients did to warrant their continued detention?

Buz Eisenberg: The answer to that question is "nothing". All four were alleged to have been in places where they could have been sold for a bounty, and evidently were. We have not yet seen classified habeas returns (though they are technically not yet due under Judge Hogan's rolling order requiring the government to prepare 50 habeas returns per month.)

The Talking Dog: Can you tell me the current status of your clients' litigations (habeas proceedings, DTA petitions, appeals, etc.), and how has this status changed since the Supreme Court's Boumediene decision, and do you anticipate any resolution of this from the courts, either (1) ever, or (2) during the remainder of the Bush Administration?

Buz Eisenberg: All four men have habeas petitions pending. All four have had one or more Orders appealed by the government. Because many of these matters are under seal I cannot describe them in any more detail. Two of my four clients, al-Qadir and Al-Shahiri, as noted above, have been transferred. We have argued that their cases are not mooted by the transfers, because of the collateral consequences doctrine, and clearly, their designation as "enemy combatants" triggers liberty interests and the law is clear on this. We only filed one DTA petition, with Al-Qadir, who is now in Algeria; nothing has been done with his DTA petition, which has been held in abeyance at the moment as he has been transferred, but the intent is to remove the enemy combatant stain through the DTA petition if possible, although as you know, the DTA has been held not to be an adequate habeas substitute in the Boumediene case.

Judge Hogan's order placed everyone transferred or "cleared for release" at the back of the line for release of classified habeas returns. We are still arguing about that, but the arguments are under seal; we have not conceded that point. Our arguments are especially compelling when the detainee was transferred to a hostile country. It is horrific to have to play the interests of our clients against each other with respect to arguing for the court's attention, but that's the position we are in. Of my own clients, as noted, two have been released, and a third, bin Mohammed, has been cleared for release.

I am ever the Pollyanna, and notwithstanding this being my fourth year of this litigation, I am still hopeful that we will have habeas review for these men. I am not hopeful that it will occur during the remainder of this Administration, though I am hopeful that Boumediene will apply, notwithstanding that its tenets that the delay has already gone on too long will be honored by the lower courts (the only exception being Judge Urbina's decision in the Uighurs' case, which ordered an immediate release only to be stayed by the Circuit Court). I believe that the law and facts will ultimately work in favor of most of the detainees; there are only 250 left or so, and though their day in court will come far too late, it will come.

The Talking Dog: Anything more you can tell us about your clients' specific situations?

Buz Eisenberg: One of my clients suffers from a horrible disease that has only manifested itself at Guantanamo. It is pilagra, a Medieval malabsorption disorder, whereby the body can't absorb niacin. It manifests itself in a skin condition with skin flaking off and pustules and terrible itching. It's quite painful even to look at. We have tried to evaluate it with Physicians for Human Rights to get him some treatment, only three weeks ago I last saw him, and it has manifested again; we remain concerned with this and are trying to get him adequate medical care.

Another of my clients has serious psychological issues deteriorating by his confinement.

As to my 2 transferred clients, I haven't seen them since their transfer. I haven't seen al-Qadir since July. I haven't seen Al-Shahiri since his transfer to Saudi Arabia in 2006; none of the 116 Saudi released detainees are allowed to speak to their habeas counsel so we have to rely on anecdotal evidence from a closed kingdom.

As noted, all of my clients have had to deal with unthinkable abuse.

The Talking Dog: How has work on Guantanamo litigation affected you professionally, including how it has affected the rest of your law practice (and did the Cully Stimson led attack on habeas lawyers have any specific effect), and how has it affected you personally?

Buz Eisenberg: I am a teacher, who supplements my income with a law practice. Since I've been doing this, my teaching load has been reduced to 3/4, and my law practice has dried up to nothing. I do not regret this for one second. This is what the oath requires, and I am grateful for the opportunity to do it. At some points, it has caused heartbreak and disappointment to have been in the throes of our post-Constitutional era, under which the judicial branch has been all too compliant in helping to dismember the fundamental underpinnings of our democratic republic.

As we talk on the eve of the election [Barack Obama has been elected in the interim], I remain ever the Pollyanna, hopeful that the rule of law, both domestic and international law, are about to become resurgent. If our system can weather this storm at this time, maybe the events of the last few years will strengthen it and some good will have come out of all this.

The Talking Dog: As of now, it looks like (my college classmate) Barack Obama is going to be the next President. What do you anticipate (if anything!) in an Obama Administration with respect to GTMO issues (e.g. close GTMO, move a few detainees here for trial, release the rest? Something else?) In the seemingly unlikely event of a President McCain, where do you anticipate these issues going?

Buz Eisenberg: As to the simple question of "closing Guantanamo", that's just geography... yes, it's more convenient to fly to Leavenworth than to Cuba, but so what?

The Talking Dog: Though of course, as the case of the Uighurs shows, there might be some significant difference if the detainees are "admitted to the United States".... if they actually are, is there not?

Buz Eisenberg: To be sure, the judicial branch is grappling with that very question in the Qiemba (Uighurs) appeal; the government must show cause as to why the detainees were not released inside the United States, and the government moved to stay it, and doubtless there will be en banc review of that stay.

The reality remains that all we want-- all we have ever asked-- is that the detainees get a hearing. If they get a fair trial with due process, they will have had their day in court, come what may.

I'm sure that Obama's attorney general would say "we can't completely discount the CIA and military's conclusions that we are holding some bad guys", but I hope, certainly, that an Obama Justice Department stops the endless delay, and then we will see a difference in that area. Right now, 61 men have been cleared for release (59 actually as 2 have recently been transferred.) I don't see those numbers going up. I anticipate an Obama DOJ saying "let's try these cases, come what may."

As to McCain [who has been defeated since the telephone interview], he called Boumediene the worst case in the history of Supreme Court jurisprudence, and I'm sure that his Justice Department would have responded accordingly, and although I'm sure he wouldn't tolerate torture (other than the endless delay and uncertainty itself, which is itself a form of torture), he would not do much differently from the Bush Administration.

The Talking Dog: From the context of a criminal justice professor, or a legal practitioner, or any other way you'd like to talk about it, how similar, or different, is the Guantanamo litigation with respect to the rest of your experience, and why? Did you have an expectation of this when you got into it, and how did you get into  it?

Buz Eisenberg: I live in rural Western Massachusetts. In my 29 years of litigation practice, I have been before judges who see the world differently from I do, or encountered probation or police officers offering less leniency than I think they should be at times. But everybody respects the law (with few exceptions). I could be a little naive, everyone tries to do the right things under a Constitutional framework. Indeed, the job descriptions require following a civilized society's protocols.

To see the Department of Justice being so callous to principles that they took an oath to protect and defend, led by the attorney general himself in this regard, is just disheartening. We knew this was the case when we got involved in the GTMO litigation of course. I fancied myself as bringing the Constitution to Guantanamo, when I called the Center for Constitutional Rights and asked to be assigned a client. Some of our basic assumptions don't seem to be relevant in these people's radar screens, and this is extremely chilling.

We have had what amounts to a legal coup d'etat-- we had always thought that the people would never allow anything like this, but the guys with the guns are operating off of different principles.

I have been an ACLU cooperating attorney for 26 years. Relatively small complaints get funneled to me in my county. I had a naivete about a police state and whether it could be imposed here, in our representative democracy. My eyes have been opened, as we have slid into it.

I am so proud of my colleagues in this, and in human rights movements here and abroad, who have taken on this work. As someone who teaches constitutional law, it has been a privilege to have a chance to fight and work for something meaningful, though on the whole, it has been chilling.

The Talking Dog: Can you comment on media coverage-- local,  national, international-- on these issues?

Buz Eisenberg: Before I was involved in the Guantanamo litigation myself, I was far more likely to condemn the media for their lack of interest, (and I still do to some extent.) The media always seems more focused on celebrity or sensationalist angles, be it Lacey Peterson or Anna Nicole's baby or O.J.... those are always likely to garner more media interest.

Some journalists, notably Carol Rosenberg of the Miami Herald, have been remarkably strong in their coverage of Guantanamo. The New York Times, for example, in a recent article by William Glaberson and Margot Williams, discussed Guantanamo and the challenge faced by the next President, and its coverage has also been strong. But these are exceptions.

We have to acknowledge that the media makes coverage decisions based on what it thinks people want to read; even quite progressive people have a limited tolerance for reading the gory details about Guantanamo. And given all the other news crying out for attention, one sees the limits of coverage of these issues.

Still and all, since I began working on the Guantanamo litigation, I have paid more attention. Eric Freedman and Candace Gorman and Sabin Willet often float news stories to each other, sometimes on a daily basis, for the last several years, and the Arab news and European media outlets have certainly covered this; there is a ton of publicity about this out there in the world media, even if not regularly found in the Boston Globe or my Sunday New York Times. I'm not talking about the MSNBCs, but certainly, the puff commercial media has not focused on this, though it creates a vicious cycle of creating interest in the celebrity and sensationalist matter and then feeding that interest.

The Talking Dog: Can you comment on the Al-Bahlul show trial and do you have a comment on the recent Al-Bahlul show trial and show conviction and life sentence? Do you have any broader comment on whether you ever thought that you would see the U.S. government stage anything quite like this?

Buz Eisenberg: Well, no. Certainly none of us ever expected to see the American government engage in anything like this. It leaves you feeling deceived, that your system, that was always rule-based, could devolve to this. I consider myself a highly spiritual person (if not a religious one). When your system of justice is subverted and fails, it us hurtful. My adult life has been devoted to this system, but it has already failed us all.

The Talking Dog: Is there anything else I should have asked  you but didn't, or anything else that my readers need to know about  this subject?

Buz Eisenberg: I have been saying, since I heard my colleague John Holland of Denver refer to our time as "the post-Constitutional era", that I realized he is exactly right: we are in a post-Constitutional era. If this period only lasts the seven years it has so far, I'll be quite relieved.

But that is where we now reside. Yes, Boumediene put a chink in that, but it has not yet, at least, been implemented by the lower courts. My hope is that we can restore our nation to a Constitutional status that had been self-defining since the founding of the Republic, but which has gone off track. I believe Sabin Willet has said it as succinctly as can be said in his letter, below [see here].

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