Talking Dog Interview with George Clarke

Talking Dog Blog Interview
March 28, 2009

George Clarke is a member of the law firm of Miller & Chevalier in Washington, D.C., specializing in tax law and related matters. For the past four years, he has represented two Chinese (Uighur) and two Yemeni detainees at Guantanamo Bay, two of whom have been determined to be "not enemy combatants" (or whatever nomenclature will replace that term) and one of whom has been "cleared for transfer or release" (two years ago and is still sitting in Guantanamo). On March 26, 2009, I had the privilege of interviewing Mr. Clarke in New York. What follows are my interview notes, corrected as appropriate by Mr. Clarke.

The Talking Dog Where were you on 11 September 2001?

George Clarke I was in my office at my old law firm. After the second tower was hit, I figured something was clearly amiss, and we had a terror attack rather than an accident of some kind. A friend and I quickly decided that we would not take the metro, as terrorists would likely target that, and so we left the building. As we got to the ground, my office then (as now) was very close to the White House. Security was extended; guards told us to get out of the area. We quickly walked to I Street, then to 14th Street, and kept walking toward the Potomac. It was surreal. Just at the time we left the office, the Pentagon had been hit, and you could see smoke from it behind the Washington Monument, and many people were freaking out as it appeared we were in some kind of Armageddon. Also, cell phones weren't working. My friend and I walked to the 14th Street bridge, and hitched a ride; every car passing filled up by taking people walking over the bridge (the woman who picked me up ended up driving me home). I'd like to think this is the "real America" of people looking out for each other in a crisis. As we drove down I-395, we could still see flames coming out of the Pentagon. Needless to say, the situation that day was wild.

The Talking Dog I understand you represent nationals of China (Uighurs) and Yemenis now held prisoner at Guantanamo Bay; can you identify your clients by name and nationality, where they are now (e.g. "Camp Iguana, GTMO" or "home, Yemen", or whatever is applicable), and can you tell us something about each of them (something about their personality, their family, or whatever you feel pertinent)? Can you tell us if the Government has decided they are, or are not,"enemy combatants" (or whatever they will now be called), and how long they have had this status and nonetheless remained at GTMO (if applicable)?

George Clarke I represent two Uighurs (Anwar Hassan and Dawit Abdurchim), both of whom have been detemined to be non-enemy combatants and are being held at Camp Iguana, Guantanamo Bay, and two Yemenis (Toffiq Al-bihani, not "cleared for release," now held at Camp 4, and Alkhadr Al Yafie, cleared for release but still at GTMO, though I don't know where). Al Yafie has refused to meet or speak with me on my last several visits, and indeed, has not since he was declared "cleared for release" in 2007, though he, of course, hasn't been actually released. He is a very stoic man; when he was cleared for release, he told me he didn't need me anymore; I do occasionally hear through GTMO's grapevine such as it is that Al Yafie "says hello". As to Al-bihani, his brother is the now famous "Taliban cook" that Judge Leon saw fit to conclude was an "enemy combatant.

The Talking Dog Can you tell us the current status of your clients' litigations (for example "habeas on appeal to Supreme Court") or whatever description is most accurate?

George Clarke A certiorari petition is being considered, and being prepared, and we hope to be filing that in the next week or two. There is a doctrine known as Munsingwear vacatur, where the Court may, in the course of dismissing an appeal as moot, vacate the underlying Court of Appeals decision; this is what happened in the Al-Marri case, and we hope, occurs with the Uighurs, who, we hope, will be released somewhere, and soon.

The Talking Dog I understand that you brought one of the only "original habeas" cases in the U.S. Supreme Court accepted by that Court since WWII, before the Boumediene case supposedly recognized the generalized constitutional right to habeas corpus case (the only other similar case of which I am aware is Candace Gorman's Al-Ghizzawi case, on which I made some editorial suggestions). Can you tell us the genesis and the outcome of your original habeas case?

George Clarke: The genesis of the case was the belief that the Supreme Court needed to be let in on some of the egregious facts of Anwar's case (Anwar, like Al-Ghizzawi, had a "do-over" CSRT, after he was first declared "not an EC" or whatever the term is now). Although the Supreme Court deals with matters it reviews from what we think is a purely "legal" perspective, we thought it might be helpful for the justices to know exactly what was happening at the Combatant Status Review Tribunal (CSRT) level. The legal arguments were, in part, a product of speaking to Prof. Eric Freedman, reading Bollman, and then morphed into the petition.

My recollection of the sequence is that we filed our petition, then the Boumediene plaintiffs filed for certiorari review, then the Supreme Court denied cert., somewhere the government moved to dismiss our petition, we had a reply due on the motion to dismiss, which we used as a call to grant cert. in Boumediene, and then the Boumediene plaintiffs moved for reargument which was granted. I don't know what effect our filing had on the Court's decision to grant reargument in Boumediene; we'd like to think it had some effect. Certainly, Boumediene's facts also involved egregious conduct at the CSRT level. We cannot, of course, know what effect our petition had.

The Talking Dog How did you come to represent GTMO detainees, and how has the GTMO litigation affected you personally? You can respond in terms of your practice, your life, or in whatever way you'd like to answer.

George Clarke In 2004, while I was still at my former firm, I was pushing along with two other guys for about a year to take Guantanamo representations. The firm agreed eventually, and supported our efforts, and, in conjunction with the Center for Constitutional Rights, or CCR, we've continued the representations. My involvement began in 2005, before passage of the Detainee Treatment Act.

I count myself as an extremely libertarian person. It has not surprised me too much that the government can wreak havoc over our liberties... the sort of gross unfairness that our military has participated in, I must say, has surprised me, particular with the situation of Anwar and the Uighurs... situations where everyone knew they didn't do anything. And unfortunately, we ask "why are you holding people you know you shouldn't be holding?" The war on terror may well be a real war (many may disagree, but I actually accept that it is a real war) but even wars have real rules. Just because it's a real war doesn't mean we can pick up people who didn't do anything, and hold them forever. The entire situation, I found, offended my sensibilities (and still does, of course).

The Talking Dog What do you see as the intermediate term (we'll say... by January 20, 2010, the President's supposed deadline to close GTMO) outlook for Guantanamo, and other aspects of the legacy "war on terror" in terms of (1) the courts, including both the habeas cases and any possible criminal trials of the supposed "high value" detainees, and a potential grant of a certiorari petition regarding the Uighurs' admission... and (2) the politics, including possible legislation ("preventive detention") and executive decisions, such as, for example, admitting some of the men (such as your clients) into provisional asylum in the U.S., admitting others to their home countries and still others to third countries? Forced prediction re your own [Uighur] clients-- given China's extensive efforts to block its nationals from going to any third country (Albania has already paid a heavy diplomatic price for taking 5 detainees), do you believe the United States government will relent and admit some or all of your clients by the end of 2009?

George Clarke With respect to the litigation part of that question, a lot will have to involve "wait and see" with respect to the executive review process now going on. We are hopeful that process will restore some dignity back to the executive, and to the entire process. We will also have to wait and see how the new definition of "enemy combatant" (or whatever it is called or going to be called) results in a fair and reasonable definition applied in a fair and reasonable manner.

As to the political aspect, the phrase "closing Guantanamo" reminds me of a scene from My Cousin Vinnie where the Joe Pesci character asks the Marisa Tomei character what kind of pants he should wear to go hunting, and her response is "Do you think the deer care one bit about the pants the guy who shot them is wearing?" And so we have an executive order that says "close Guantanamo". Then what? More than 240 guys go to multiple facilities elsewhere, still isolated, still under lock and key, just that they are sent to a new facility (at yet more taxpayer cost)... and so, I see a detainee asking... "how will this help me... or really change anything?" The real question is the substance of "closing Guantanamo"... and not nomenclature, or political terminology... the question... will it really matter in substance? I've asked my Yemeni client about this, and he said that he doesn't care where he is being held prisoner-- he just wants to be released! So this "close GTMO" has spun out of control, by focusing on the image and the politics and not the actual substance of it.

I will certainly say that the definition of enemy combatant proposed by the Obama administration is a disappointment. We need something with spine. We need people who aren't afraid to say about holding people for years for no good reason, "THIS IS WRONG". Someone to realize that EC [enemy combatant] means someone who raised arms against us; training in military tactics once a long time ago... just isn't enough to hold someone as an EC. Do we really want to hold such people? Are they, in fact, really so different from many other people in their own countries? The problem thus far has been that this has been played politically, and for what seems to sound good, rather than substantively, and as such, we have not yet seen anything that will "fix" anything. So I am disappointed as to where this is now.

I would like to see a more robust effort to figure out who should still be held, and who should be released, and why. Especially since it seems that we are effectively imposing life imprisonment.... we must ask, who are we doing this to? So... if the conditions these men are held in are the same, just "not in GTMO"... what has been accomplished?

Finally, as to my Uighur clients, there is no chance they will be sent to China; I am optimistic that there is a reasonably good chance that the United States itself will have to take them in.

The Talking Dog At this point (we're roughly 2 months in) into the Obama Administration, what advice would you give (my old college classmate) our new President concerning Guantanamo? Feel free to throw in anything else you'd like to discuss re war on terror, Bagram, state secrets, al-Marri or anything else you feel worth commenting on, including the supposed position [which may be coming down the pike] that even if the Administration concludes someone is not an enemy combatant, that would actually divest a habeas court of jurisdiction (as, goes the logic, that academic question of status is the only thing the courts are empowered to hear, and remedy is entirely a matter of executive whim)?

George Clarke: Well, reverting to the enemy combatant definition (or non-definition), we see that too much of the focus has been about semantics. Semantics matter, of course, in diplomatic and legal contexts, but in this case, a change in language has to mean a change in substance, as opposed to simply nomenclature, semantics and what sounds good politically, and that's why the EC definition by the Administration is problematic.

The other piece is the need for an overall "re-think" of the whole "war on terror," and like enemy combatant, I don't mean just a change in what it is called! The Bush Administration, for example, used an EC definition was the same as the Napoleonic total war definition, and chillingly, its the same justification that Hamas or Hizbollah would use to attack civilians, to wit, you're all our enemies just because you think you are opposed to us. Well, that's not the system, or the law of war... though the Bush Administration evidently didn't understand that.

I can only hope that this does not escape the current Administration... there may well be people out there who plain out hate us... but this is not the definition of a combatant. Maybe our intelligence services got out of control on this, and over-sold the scope of who are enemies are... but we would hope the Justice Dept. or White House will pull back from that (though so far, they have not). A lot, to be sure, will take place with the executive reviews.

With respect to the argument you raise of a possible "jurisdiction stripping" if the Administration's review concludes someone is not an EC, but can hold the man forever at its whim, I wish a lot of people would pay more attention to this. We did a good job of arguing this in Kiyemba... the Government took people from somewhere, and put them in GTMO. The Government cannot compel a foreign nation to take them. They are at GTMO because of foul play on the part of the United States Government. There are serious problems, of course, with releasing some of these men in the United States, but the U.S. Government did this, and we need damned good reasons to make sure it doesn't do anything like this again. One might well ask why we didn't use holding facilities we had in Afghanistan when the conflict was taking place there... the decision was made to remove men to GTMO, to take them beyond law, and that decision has been a disaster... admittedly, in a far-flung war on terror, men might be picked up in many places... but if you're going to move them to a wholly controlled American base on land leased by the United States and hold them for years, you'd best be damned sure the man you're holding really does meet some real definition of an enemy combatant.

The Talking Dog Can you give an overall critique (or praising, if you like) or media coverage of matters GTMO, including as relevant to your representations, both during the Bush Administration, and thus far during the Obama Administration?

George Clarke In general, the media was not focused on abuses and problems associated with those captured in the war on terror in first few years after September 11th. This is probably understandable; there was a great deal of anger out there, and most people expected their government to do the right thing.

Unfortunately by this point a lot of the main stream media is tired of the war on terror, and indeed, of the excesses that have taken place in the war on terror. Currently, of course, the financial crisis is dominating the news cycles for the most part (though some outlets, like the New York Times, Washington Post and others have kept up their coverage of Guantanamo). While those of us involved think this is of critical importance, there are lots of other important things out there.

In this regard, blogs have helped a great deal; I just couldn't see the same kind of backlash against the Global War on terror without blogs. In a great sense, these individual voices have changed journalism, certainly in a way that was harder to see before blogs. My understanding of the Vietnam era is that there was a build up of backlash, which eventually built up and blew up. So, blogs in some sense have kept up focus in the present times that just couldn't have been there before the internet .

The Talking Dog Someone I talked to suggested that not having pictures from GTMO was an issue... can you comment on that?

George Clarke: Of course, the government controls all aspects of GTMO, including images; if you can't put a face to the person, it makes it more difficult to humanize them... which is part of what is going on, of course.

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

George Clarke I think you've covered what's of interest. People will now have to watch what transpires with the executive reviews; what the judges do in the litigations may be less interesting to watch, but ultimately may be more important. In some sense, most of us have failed as lawyers in the GTMO litigation... the Boumediene case is our only saving grace, insofar as it is the only thing that seems to have shown that our efforts have made any difference. That said, if waiting for "the king to change" is the only way to get relief, then we are not living in the country I thought we were living in. We will all have to see if the new President lives up to the promises he has made, and we will have to see ultimately how the role of habeas corpus plays out.

The Talking Dog: I join all of my readers in thanking Mr. Clarke for that informative interview.

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