Continuing (or perhaps resuming) my series of interviews with relevant players in what was formerly known as “the war on terror” and the plight of “enemy combatants” (both of which terms await their new nomenclature in the Obama Administration), as issues from resumption of the military commissions to release of detainee abuse photos make the headlines, habeas counsel, such as my present subject, Ramzi Kassem, continue to plug away trying to get their clients their day in court. The interview follows in full after the jump, and is cross-posted at the talking dog blog.
Ramzi Kassem is a Lecturer in Law at Yale Law School. Mr. Kassem previously served as an Adjunct Professor of Law at Fordham University School of Law, where he co-taught the International Justice Clinic that represents Guantánamo Bay detainees. As a Civil Rights Fellow at Cochran Neufeld & Scheck, Mr. Kassem litigated high-impact cases stemming from wrongful convictions and police misconduct. He has also worked as a legal consultant for the International Center for Transitional Justice in New York City. He is a graduate of Columbia Law School, the Sorbonne and Columbia College. Mr. Kassem represents many current or former prisoners of American detention facilities at Guantanamo Bay, Cuba or Bagram Air Base, Afghanistan. This coming Fall, Mr. Kassem will join the law faculty at the City University of New York. On May 5, 2009, I had the privilege of interviewing Mr. Kassem by telephone; what follows are my interview notes, corrected as appropriate by Mr. Kassem.
The Talking Dog: Where were you on September 11, 2001?
Ramzi Kassem: I was in New York City. It was the beginning of my second year of law school. I was on my way to do some journal work, when I passed the fire station on my block; the firefighters were suiting up to go down to the World Trade Center. One of them said that a small plane had crashed into one of the towers. The singer Aaliyah had been in a Cessna crash just before, and that was still on people’s minds. I later heard that a few guys from that firehouse never made it back.
I continued on to the law school, where I heard and saw what was really happening. I tried to track down friends I knew who worked at the World Trade Center. Later that day, I gave blood and volunteered at the Red Cross taking calls from non-English speaking people with relatives working at the World Trade Center.
The Talking Dog: Please identify your clients, by name, nationality, and current location (“re-patriated to Yemen,” “Camp 6, Guantanamo,” “Bagram AFB”, or whatever is appropriate) and tell us something of note about your clients’ personality or anything else you believe appropriate. Can you tell us any specific allegations of abuse your clients assert they have suffered?
Ramzi Kassem: Over time, with my students and colleagues at Fordham and Yale, I have represented a number of men. They are: Saleh Al Khathami, Saudi, repatriated to Saudi Arabia from GTMO; Fahd Al Fawzan, Saudi, repatriated to Saudi Arabia from GTMO; Ali Muhammad Nasser Muhammad, Yemeni, repatriated to Yemen from GTMO; Sanad Yislam Al Kazimi, Yemeni, imprisoned at GTMO; Mohammed Al Shimrani, Saudi, imprisoned at GTMO; Mammar Ameur, Algerian, repatriated to Algeria from GTMO; Ahmed Zaid Salem Zuhair, Saudi, imprisoned at GTMO; Ahmed Mohammed Ahmed Al Darbi, Saudi, imprisoned at GTMO; Amin Al Bakri, Yemeni, imprisoned at Bagram, Afghanistan.
All of my clients have interesting stories; it’s somewhat hard to pick any one in particular. They were captured in a variety of places– the United Arab Emirates, Pakistan, and Thailand, among others, and in a variety of circumstances– some were U.N. registered refugees in Pakistan, others were traveling on business to Pakistan or Thailand. The stories of these men are emblematic of the flawed and expansive American detention policies implemented since September 11th.
The Talking Dog: Can you tell us the status of your clients’ litigations?
Ramzi Kassem: In Mr. Zuhair’s case, we are headed towards a merits determination, which is now set for June 30th. Mr. Zuhair will have his day in court after 7 1/2 years of detention, and on the 4th anniversary of his hunger strike (which he began in June 2005). That tells the story of the entire mess in one sentence. The Bush Administration, and now the Obama Administration, have, despite numerous major losses in the Supreme Court, continued to have their way with the men they are holding.
With respect to Mr. Al-Darbi’s case, we are waiting to see what the Obama Administration will do with respect to the military commissions. Will the Obama Administration abandon Mr. Al-Darbi’s case, in favor of release? Will it choose to re-vamp the Commissions? Or will it bring back the Commissions in the way they were before, quite intentionally set up to use evidence extracted through torture? Indeed, the only evidence against Mr. Al-Darbi were his own statements, obtained through cruel and degrading treatment and torture, and there are multiple witnesses to that horrible abuse. We are now at the point of finding out if the Obama Administration will adopt some of the less savory features of the Bush war on terror doctrine—including the use of statements obtained through torture, normally inadmissible hearsay, and secret proceedings that exclude the defendant and his attorneys. The military commission judge ordered a pre-trial hearing on May 27th after the government had requested a delay until May 20th—four months from inauguration. The stay ends on May 20th. On May 27th, we’re back before the military judge to argue pre-trial matters. If it goes forward, it would be the first military commission hearing under the Obama Administration. Our last oral argument occurred on December 15th, under President Bush.
The Talking Dog: My understanding is that you are a Lebanese-American, with a significant part of your family in Lebanon. As such, can you tell us your “gestalt” feeling about American detention policy, as practiced at Guantanamo, Bagram, Black prisons, Iraq, everywhere else (including our suddenly burgeoning immigration detention operations), and in particular, how you would address perceptions (do you accept them, for example) that “the war on terror” is widely perceived as some kind of broader war against Islam or at least against Muslims? Can you tell me your view of the perspectives of Muslim Americans, and Muslims abroad, as to how they view these policies and “the war on terror” (and how, if in anyway, President Obama’s election has changed this)? Any thing you’d like to see from the Obama Administration with respect to this?
Ramzi Kassem: I would self-identify as an Arab-American and a Muslim-American. My sense of the perception abroad is that the war on terror has certainly been accepted by some as an ideological war against Islam. The more prevalent view, however, from what I’ve read and seen, is that the war on terror was a blunderbuss reaction to September 11th, an indiscriminate overreaction. Most people abroad that I know do not seem to view it as an ideological war on Islam, but rather as a knee jerk and heavy handed response against a region and a group mistakenly held responsible as a whole for 9-11.
People abroad—and I’m talking not just about the Muslim community—have come to the realization that many of the detainees—whether held in immigration raids, at black sites, Guantanamo, Bagram or wherever—were swept up in a dragnet deployed by the United States after 9/11 and targeting Muslims deemed out of place in one way or another.
With respect to President Obama, people overseas seem still hopeful that there will be a departure from President Bush’s policies. But they are paying close attention to what he does, and with every choice not to depart from President Bush’s policies—secret evidence, detention policy—the international community grows increasingly skeptical.
For now, at home at least, President Obama is still in his honeymoon phase with most people, but those, like me, who represent men imprisoned for years without charge or trial, tend to be more critical of President Obama. We’ve seen far more continuity with President Bush’s policies with respect to our clients than most people are aware. To give but one additional example, detention conditions have not improved either, and hence, it is hard to wax eloquent about the progress President Obama has brought to the scene when you then sit down with your client for hours at Guantanamo and he describes all the ways in which hope and change have been absent from that prison camp.
The Talking Dog: Tell me about Ahmed Zuhair… specifically, what you can tell me re his current condition as you know it, whether he is being force-fed, and notwithstanding that he has been “cleared for release” whether his jailers apparently intend to relent in their treatment of him? How have the courts responded to his situation?
Ramzi Kassem: Yes, there have certainly been developments in his case in the conditions of confinement area. Of course, these developments are not by the grace of the Obama Administration, but have been the direct result of court rulings and advocacy pressing the government to desist. Last week, a court ordered the government to inform us and the court if it intends to revert to force-feeding Mr. Zuhair in the restraint chair. They’ve been using a bed of late. Mr. Zuhair is the longest-running hunger striker at Guantanamo and, over time, we have managed to document the deleterious effects on Mr. Zuhair’s health from use of the chair rather than the bed. We also got a report by a court-appointed independent medical expert who traveled to the base and examined Mr. Zuhair for a week. The report showed that, indeed, his health was suffering from the chair—which Mr. Zuhair refers to as the “torture chair.” Frankly, there never was a real need for the chair to be used on Mr. Zuhair. The Bureau of Prisons’ regulations provide that such restraing chairs are only for mentally incompetent or physically resistant prisoners, and the government has long conceded that Mr. Zuhair was never recalicitrant or combative, but staging a passive protest in response to his indefinite imprisonment without trial. While we’re somewhat pleased that he will be force-fed a little less cruelly than the government might otherwise go about it, what limited progress achieved in this regard comes after long years of brutal treatment endured by Mr. Zuhair and it comes via court action, not by benevolent executive fiat.
The Talking Dog: You recently were quoted in a Politico piece suggesting “six reasons why GTMO policies won’t be changed so soon”… let me follow up on what I see as a troubling trend, that toward emphasis on things that politically sound good such as nomenclature (EC’s won’t be called EC’s anymore; “close GTMO within 1 year,” GTMO is now fully Geneva compliant because the United States doesn’t torture, etc.) while actually maintaining and continuing Bush Administration policies… what’s your view of the likelihood of actual substantive change of the United States government’s detention policies, say, on admitting “cleared” detainees to the U.S. who can’t be sent home (e.g. the Kiyamba case), state secrets, or investigating (let alone prosecuting) miscreants in the former Administration? Since you are a member of a law school faculty, can you give a letter grade (or perhaps “incomplete”) for the Obama Administration thus far on these issues?
Ramzi Kassem: So far, the Obama Administration has taken some interesting steps. On the one hand, it has pledged to close GTMO, and undertaken an executive review of detentions. But it has taken no real, concrete steps to improve matters. Indeed, in what concrete steps it has taken—continuing the assertion of state secrets, denying that Bagram detainees such as my client Amin Al-Bakri are entitled to habeas review—the Obama Administration has resembled the Bush Administration. The reason this is most disappointing resides not only in the contrast it reflects between candidate Obama and President Obama but because of what it might mean going forward.
What the Obama Administration does now to advance or roll back Bush-era policies will likely shape the world for decades ahead. The Bush Administration was widely regarded, even by Republicans, as an outlier. The Obama Administration had a golden opportunity to disavow the extremism of the Bush Administration. By adopting Bush-Cheney policies, even in a limited fashion, President Obama would be reaffirming that these extreme policies will remain a long-term or perhaps even permanent feature of our country’s participation in the world. And so the most disappointing part of recent weeks’ events is the seeming adoption of many Bush-Cheney policies.
From a grading perspective, I’ll use the Yale Law School’s system. We have 4 grades here—Honors, Pass, Low Pass and Fail. An open secret is that one must really go out of one’s way to perform so poorly as to get a Low Pass or a Fail. In my view, the Obama Administration has gone out of its way, so I give it a “Low Pass.”
The Talking Dog: Please tell me your impressions of GTMO “the place,” the physical space, the aura, the people you encountered, anthing else that comes to mind, and if you could, differentiate it from the typical experience of visiting Congress members or journalists?
Ramzi Kassem: Members of Congress and journalists are typically taken on a Potemkin Village tour; they are certainly not permitted to have any direct interaction with prisoners. Of course, they will see some facilities, which appear clean and orderly. The problem with GTMO is, of course, not the “hardware”, but the “software”: what is being done to the people in this place, not the structures themselves and their apparent amenities. Congress members and visiting dignitaries only get the captors’ perspective.
This of course was exactly the problem with President Obama’s order directing a review of whether GTMO was “Geneva compliant.” We can even leave aside the obvious conflict of interests created when President Obama asked Secretary of Defense Robert Gates—the man responsible for operating GTMO for years under President Bush—whether his own operation complies with law and treaty. It should come as no surprise to anyone that Secretary Gates found his operation to be in full compliance. What is needed for any such report to be credible would be systematic interviews with the prisoners about their treatment—indeed, prisoner interviews would form the principal part of any such process undertaken in any other country. Not only should the President have ordered an independent inquiry, the inquiry should have included systematic interviews of the prison population about conditions. That didn’t happen.
We lawyers have a different perspective. Unlike the dignitaries and journalists, we talk to the prisoners who have been there since 2002 and who can actually tell us what has happened to them. From my own perspective, GTMO is jarring. I must say I am seldom happier than the moment the plane takes off and I am on it. On the one hand, the place is in a nice, pristine corner of the Caribbean, unsullied by tourism or pollution. But its physical beauty is in stark contrast with its symbolic weight and the experience of the horrors that went on there as articulated by my clients. This juxtaposition makes the place especially unnerving. On that level, it embodies the Bush Administration’s favorite ploy of holding out one thing to the world while really meaning something altogether different. GTMO’s physical beauty and its apparent orderliness are given the lie by a reality that is atrociously different.
Needless to say, I love sitting down and talking to my clients. But it has been horrifying to visit and work in a place that encapsulates post 9/11 policies. The Orwellian phrases we have all come to know—”enhanced interrogation,” “extraordinary rendition”—come to life at Guantanamo. That contrast between the place’s beauty and barbarism is what makes so deeply unsettles me about the prison camp.
The Talking Dog: Since, like me, and your former colleague Martha Rayner (whom I interviewed last year), you are part of the media market here in greater New York; as such, can you comment on your view of how the local, national, and international media have performed with respect to these issues? How do you think this has effected public perceptions, if it has?
Ramzi Kassem: All media—broadcast, print, internet—have played an important role in explaining what has been going on. I will say that where I fault the media is in pressing for facts. The media has been too uncrticial, for example, of accepting repeated government assertions that the men at Guantanamo are “the worst of the worst”. The media should never have accepted language like that without demanding facts and concrete proof that such characterizations are justified. How do we know that these assertions are true? Unless questions are systematically asked, and answers demanded, the press risks becoming a willing vehicle for the advancement of political agendas and the dissemination of politically charged messages, and it loses its ability to function as a pillar of our democracy, as a fourth branch of government.
That is the single area where the media has been disappointing. While it has done a great deal of good in disclosing many aspects of this story, far too often, it has not pressed for details and facts; far too often, it has contented itself with unsubstantiated generalities, without engaging in the kind of probing one would have hoped to see.
The Talking Dog: Given that it has a sui generis nature (or does it?), can you describe how the Guantanamo litigation has functioned as a pedagogical exercise with respect to your current students at Yale and your former students at Fordham? And how has the Guantanamo litigation experience effected you–personally, career-wise, or any way you’d like to answer?
Ramzi Kassem: It has been challenging for a number of reasons, to be sure, both from the substantive standpoint—the doctrinal complexities raised by these cases—and as a teaching exercise. I would hope that it has been a worthwhile and edifying experience for the students involved, and that it will shape their world view and, ultimately, their law practice and their careers. I certainly hope for our society and our world that the GTMO-specific skills of representing individuals held in legal black holes and of total fluency in the nuances of torture are “sui generis” and that they will not be exportable in any direct way. At the very least, I hope that my students, enriched by their work on these cases at the very beginning of their legal lives, will be the ones to prevent a repetition of this tragic episode in our nation’s history and in world affairs, should it come to pass again.
As for myself, when I was in law school, I wanted to go abroad to focus on international humanitarian law work or rule-of-law related issues. The irony is that in the aftermath of 9-11 and Guantanamo, I ended up working on precisely those issues… only not abroad, but in the United States!
The Talking Dog: I join all my readers in thanking Mr. Kassem for that interesting and enlightening interview.
Readers interested in legal issues and related matters associated with the “war on terror” may also find talking dog blog interviews with former Guantanamo military commissions prosecutor Darrel Vandeveld, with attorneys George Clarke, Buz Eisenberg, Steven Wax, Wells Dixon, Rebecca Dick, Wesley Powell, Martha Rayner, Angela Campbell, Stephen Truitt and Charles Carpenter, Gaillard Hunt, Robert Rachlin, Tina Foster, Brent Mickum, Marc Falkoff H. Candace Gorman, Eric Freedman, Michael Ratner, Thomas Wilner, Jonathan Hafetz, Joshua Denbeaux, Rick Wilson,
Neal Katyal, Joshua Colangelo Bryan, Baher Azmy, and Joshua Dratel (representing Guantanamo detainees and others held in “the war on terror”), with attorneys Donna Newman and Andrew Patel (representing “unlawful combatant” Jose Padilila), with Dr. David Nicholl, who spearheaded an effort among international physicians protesting force-feeding of detainees at Guantanamo Bay, with physician and bioethicist Dr. Steven Miles on medical complicity in torture, with law professor and former Clinton Administration Ambassador-at-large for war crimes matters David Scheffer, with former Guantanamo detainees Moazzam Begg and Shafiq Rasul , with former Guantanamo Bay Chaplain James Yee, with former Guantanamo Army Arabic linguist Erik Saar, with former Guantanamo military guard Terry Holdbrooks, Jr., with law professor and former Army J.A.G. officer Jeffrey Addicott, with law professor and Coast Guard officer Glenn Sulmasy, with author and geographer Trevor Paglen and with author and journalist Stephen Grey on the subject of the CIA’s extraordinary rendition program, with journalist and author David Rose on Guantanamo, with journalist Michael Otterman on the subject of American torture and related issues, with author and historian Andy Worthington detailing the capture and provenance of all of the Guantanamo detainees, with Joanne Mariner of Human Rights Watch, and with Almerindo Ojeda of the Guantanamo Testimonials Project, to be of interest.