In November, 2004, shortly after the reelection of the American
government which was in power at the time of the largest foreign attack against
the United States on North American soil since the War of 1812, attorney Joshua
Dratel was arguing on behalf of his client, Australian national David Hicks,
at a military commission in a courthouse converted to accommodate classified information and proceedings on an American military base at Guanatamo Bay, Cuba, set up as one of the many ad hoc responses to that attack by that government. A short time later, U.S. District Judge James Robertson would stay the military commissions as unfair and unlawful, for a variety of reasons, and the commission proceedings have been stayed accordingly, pending the outcome of an appeal.
In the course of this representation, Mr. Dratel, who was assembling his own set of documents associated with American conduct of “the war on terror”, joined forces with Karen Greenberg, a historian at New York University, who was assembling her own set of documents, and the two collaborated on editing a lengthy tome called “The Torture Papers: the Road to Abu Ghraib.”
On April 28, 2005, Mr. Dratel spoke to me by telephone. Below are
my interview notes (which, in some cases, reflect corrections provided by Mr.
Talking Dog: Where were you on September 11th?
Joshua Dratel: I was at home in my apartment in Battery Park City,
just to the West of the World Trade Center. At that time, my apartment did not
face the towers directly, but I could see both clearly from my window. I heard the first plane quite distinctly. I first thought it was a plane crash to the west, the way the noise reverberated, but then I looked outside, and saw people running, and knew it involved the World Trade Center. The sound reverberated. After the second plane hit, I went down to the courtyard of the apartment building, where we saw the collapse of the South Tower. When that blew out, it unleashed a cloud of dust and soot, and you couldn’t see in any direction, but you just kept moving. A lot of people bumped into things on the promenade along the river, including trees. I wound south around the bottom of Manhattan and then uptown.
Talking Dog: Do you know where [co-author of “The Torture
Papers”] Karen Greenberg was?
Joshua Dratel: I’m not sure where she lived at that time.
Talking Dog: Did you know where [co-counsel for David Hicks,
Marine Corps Major] Dan Mori was?
Joshua Dratel: I believe he was either stationed in Hawaii at that time… or possibly Thailand.
Talking Dog: Do you know where Mr. Hicks himself was [and if it would violate a confidence, just let me know that]?
Joshua Dratel: That’s not something I can tell you.
Talking Dog: How did you come to represent Mr. Hicks?
Joshua Dratel: That was a confluence of circumstances. I had
been involved in the embassy bombing cases in early 2001. As a result, I marshalled expertise on the subject of terrorism cases. I had some relevant foreign travel experience. And it was felt that my experience could be a resource. I had been appointed a co-chair of a committee on military tribunals of the National Association of Criminal Defense Lawyers. In October, 2003, at an NACDL meeting in New Orleans, I met Dan [Major Mori]. We hit it off, and thought I would be helpful to the defense of David Hicks. At the same time, Joe Margulies [of the Center for Constitutional Rights]– who represented Hicks, as well as the rest of the Guantanamo detainees, managed to get the Supreme Court to accept certiorari (review) of the Rasul case. Joe felt he might be conflicted out of individual representations of the detainees once the tribunals began, because the detainees would likely be aligned as witnesses against each other, and so it was thought that a “conflict” counsel might be needed. So Joe was looking for such a conflict counsel. By coincidence, I also knew Joe’s wife, Sandra Babcock, a lawyer who successfully brought a case involving Mexican death row inmates to the Supreme Court (for failure to allow the inmates prior consular meetings and other procedures mandated by treaty and international law). Sandra knew me because she represented another embassy bombing defendant. I was probably the only lawyer that Dan and Joe both knew! The task for me seemed simple, and confined: just serve as
conflict counsel, if necessary. Dan [Mori] and [Australian lawyer] Steve Kenny were representing Hicks as of December, 2003, but at that time, it was apparent that Joe Margulies’ conflict situation was intractable, and that David needed representation in the commission process. Dan and Steve and asked me to step in, and I did. I became lead counsel to David in the commissions, and am also part of the team handling David’s civil habeas corpus petition in the federal court.
Talking Dog: Mr. Hicks has received far less interest here
than the case of John Walker Lindh. Besides the Australian vs. American
nationality, any reason why? Has this been a cause celebre in Australia? Do you think Mr. Hicks’ prior lawyer Steven Kenny did any harm to Mr. Hicks’ plight? Do you believe that Mr. Kenny’s criticism of the Australian government
presented any problems for Mr. Hicks? Can you comment on any of this?
Joshua Dratel: Certainly, Mr. Hicks is virtually unknown here,
unknown to the American consciousness. He gets some press coverage in the
Adelaide (South Australia) area he’s from. There’s a web-site devoted to his
plight. Unless an American citizen is involved, there is, of course, much less
interest here. And Lindh was the subject of saturation coverage here, so much,
and for so long… I certainly don’t think that Steve Kenny did any damage to
David’s case… I think there was some misinterpretation of something I said
in the Australian press; there was nothing wrong with Steve being critical of the Australian government; I had also said enough things critical of the Australian government. We were discussing bringing in a foreign attorney consultant from Australia as we got closer to trial, because we wanted someone with more criminal courtroom and preparation experience. Independent of that decision, which was in the works for quite some time, I felt we had exhausted the productivity of constant criticism of the Australian government. Naturally, the Australian press interpreted this as “we were sacking Steve.” But that was a misinterpretation.
Talking Dog: Any reason why Mr. Lindh was charged with a crime, whereas, for example, Yasir Hamdi, also a citizen, or Hicks, were denoted “enemy combatants” and not charged, while Zaccarias Moussaoui WAS charged? Has any of this ever been explained?
Joshua Dratel: It seems that the only “overt distinction” is that
by original design, citizens are not eligible for the military commissions.
Of course, they never made a distinction there in the case of Moussaoui– his
case seemed to be the product of a debate betweeh the Departments of Justice
and Defense as to which should prosecute him, and at that time, the criminal
justice people prevailed. They have not, apparently, prevailed since.
In addition to Jose Padilla, as citizen unlawful combatants, a man named Al-Mari is still being detained in a brig in South Carolina; he’s represented by Larry Lusberg of the Gibbons firm in New Jersey. That case is completely off the radar.
Talking Dog: I understand that every government whose citizens were detained at Guantanamo Bay– except Australia– lodged a demand that their citizens be returned to them. Do you know why Australia has not asked for Mr. Hicks’ return?
Joshua Dratel: Actually, Australia is the only Western country
in that category; some Middle Eastern countries have not been pressing for
their nationals. Citizens of other Commonwealth countries have been returned to those countries, and in every case, released without charge. For whatever
reason, Australia has not demanded the same status that Britain and other
Commonwealth countries obtained for their ciitizens (which got them released
ultimately, insisting that the military commission process was entirely unfair). For whatever reason, Australia has not done that for Mr. Hicks, and he remains
Talking Dog: At the moment, am I correct that the unlawful
combatant military commission trials have been stayed by Judge James Robertson in Washington? That decision is being appealed by the government to the DC Circuit? Any idea of when it will be argued?
Joshua Dratel: Well, it has already been argued before the D..C.
Circuit on April 7th; we obviously don’t know when a decision will come down.
A stay in the case of detainee Hamdan was issued by Judge Robertson, and that
resulted in all the military commission proceedings being stayed until the
appeal is resolved. Judge [Joyce Hens] Green [of the U.S. District Court for the
District of Columbia] also agreed that the detentions and enemy combatant determinations were invalid because they violated the Geneva Convention and did not afford due process. Since then, the federal court proceedings have also been held in abeyance pending the appeals. Judge Green’s decision conflicts with a decision from Judge [Richard J.] Leon of the same court that there were no rights the detainees could invoke via habeas. Judge Green went to the other way. This all went up to the D.C. Circuit, separate from the Hamdan
appeal, it involves Geneva Convention issues. The commissions have stopped
for the moment. We all will have to wait and see what the D.C. Circuit does
with all of this.
Talking Dog: Can you briefly summarize what you in particular
find unfair about the military commission process at Guantanimo?
Joshua Dratel: Basically, there are no rules. The Uniform Code
of Military Justice, which governs court-martials — that’s been thrown out. No standards at all. Total arbitrariness. No efforts at anything resembling fairness. Let’s start with evidence and proof. People don’t know this, of course. The government’s “proof” consists entirely of interrogators reading from reports of their interrogations– without any basis to challenge the underlying accounts of witnesses, such as the witnesses themselves (who have frequently been shipped out of Guantanamo) or their interpreters, or the conditions under which the statements were taken, which were frequently, to put it politely, “coercive.” Just statements from the detainees themselves– regardless of whether obtained from abuse, or coercion, even rising to torture. In the commissions, you simply can’t challenge them– you don’t have access to the witnesses.
Talking Dog: I understand you spent a fair amount of time
challenging the panels and their members themselves.
Joshua Dratel: I’m glad you brought that up. That’s another area of
unfairness. In a military felony case– that’s any case where the penalty
might be more than one year in prison– and remember that these detainees might get life in prison or even death sentences– you need at least 5 panel members under the UCMJ. Under the commissions arbitrary set-ups, they envisioned between 3 and 7 panel members. In David’s case, they planned 5 panelists and one alternate. But we challenged the panelists, for a variety of reasons, and 3 challenges were granted. We thought they would appoint 2 more officers to bring the panel back to 5, but they didn’t. Now this makes a huge difference. And that’s because under military rules, you need a 2/3 vote for conviction. On a 5 member panel, that means you need only coNvince 2 out of 5 for an acquittal; on a 3 member panel, of course, its 2 out of 3… a much higher burden, and not one required by the UCMJ. Conversely, the government’s burden is halved: while it needs four of five votes to convict in a five-member commission, it needs only two in a three-member commission. And then we get into the issue of the fact that in a court-martial,
there is one judge, and the panel acts as kind of a jury. Under this set-up,
the whole commission was supposed to make rulings. Of course, they had no
legal training (except for one officer, Colonel Brownback). But the panelists
couldn’t absorb certain basic legal concepts– such as ‘ex post facto” and
“jurisdiction”. For example, if a citizien of Country A (we’ll call it “Australia”)
is fighting in Company B (we’ll call it Taliban Afghanistan) against Country
C (we’ll call it the Northern Alliance of Afghanistan), in Hicks’ case,
supposedly he was in a fox-hole guarding a Taliban tank position or something,
before he was picked up by the Northern Alliance, then how does Country D, the United States, get jurisdiction over him? I mean, the United States has no
jurisdiction over Hicks and his alleged actions– completely lost on this panel.
Of course, the panelists’ response was “you mean he just gets away
with it?” But the crimes he is accused of were not war crimes– he was not even accused of shooting at soldiers– as if that were a war crime, which it is
not. At worst, it was either a domestic offense (like treason) in Afghanistan,
or acting as a soldier of a military, in which case, he wouldn’t be guilty of
a crime at all, but a combatant subject to the Geneva Conventions.
Also, of course, the evidence also is illegitimate because of the manner in which it was obtained– all consisting of statements of detainees made under coercive interrogation or even torture. At the motions argiment, we wanted to call witnesses who were experts on international and military law. But the panel didn’t want to hear any of them.
Finally, of course, Rumsfeld has controlled the appeals process by stacking
it with his own hand-picked cronies.
The objections to the process are not just procedural. The government’s
entire case against everyone is based on interrogations of other detainees.
Talking Dog: Did you consider it some kind of irony that you were representing an Australian in a kangaroo court?
Joshua Dratel: I always want to say that, but am afraid to because it’s too corny.
Talking Dog: That’s quite alright. I can say it, because I’m shameless. Have you been permitted to meet with Mr. Hicks? Can you tell me what kind of restrictions the government has placed on you with respect to
communicating with him?
Joshua Dratel: I’ve been down to meet with David seven times now.
The entire procedures of the Commission had long been objected to.
Procedures such as inability to ask for an adjournment, once the case starts, you can’t leave the base (so the rest of your practice can go to hell!), restrictions on speaking to the client… other things that caused the National Association of Criminal Defense Attorneys to argue that participating in the commission process might be unethical for all involved… have been modified or eased up. I can communicate with David without being recorded or monitored. Origianally, they let me do this because I have a security clearance after the embassy bombing cases, and it was thought that David would quickly plead guilty and make their lives easier… it hasn’t worked out that way…
Talking Dog: How has the Lynne Stewart prosecution affected your practice– in general, and/or with respect to your representation of Mr.
Hicks, or as an association president [the New York Associatoin of Criminal
Defense Attorneys] do you know how it has effected other criminal defense
Joshua Dratel: It hasn’t affected me at all (other than making me
read an 11,000 page record!) I’ve been in this kind of case, so I’m familiar
with the drill. However, other lawyers have certainly told me that they just
wouldn’t take a sensitive case like that. They don’t want to operate under
that much scrutiny– they feel vulnerable in their own careers. It’s a
problem– they feel they would be intimidated into being less than fully zealous
advocates. Was this the intended result? I leave that question to others.
Talking Dog: Turning back to Mr. Hicks– my understanding is
that he was a cowboy in Australia, and later converted to Islam, and found
himself in Afghanistan, supposedly at Al Qaeda training camps, and ultimately, was picked up by Northern Alliance forces while he was fighting on the side
Taliban forces, correct? Since the Taliban were recognized as the government of Afghanistan by at least Pakistan and Saudi Arabia, though not by the U.S. of
course, why isn’t Mr. Hicks technically a prisoner of war, subject to being
released to Afghanistan, seeing as the war there is over? Has that been your argument to any forum that
would hear it?
Joshua Dratel: Yes– that’s exactly right. That’s exactly the
argument that Judge Green accepted as the basis for her ruling. The United
States is holding the detainees in a manner inconsistent with the Geneva
Conventions. These detainees were entitled to Article 5 hearings, by a competent, neutral arbiter, of their status. as to whether they were prisoners of war rather than ‘enemy combatants”. Instead, Bush determined ahead of time that all combatants in Afghanistan were not entitled to protections of the Geneva Convention. Well, the President just can’t make that determination, under our treaty obligations. There is no legal reason why capturedTaliban soldiers were anything but prisoners of war. That was the State Department’s position– that as a threshold matter, this can’t be determined in all cases for the conflict in advance, but had to be an individualized determination.
This leads to the interesting question, are the courts viable
instruments in the war on terror. The response is most ironic– the courts and the criminal justice system were the only things actually working to apprehend
terrorists before 9-11– the military and diplomatic efforts were clearly not
And yet, what happens after 9-11? The first thing we abandon is the
courts and the criminal justice process in favor of the military angle– even
though it was the criminal justice process and courts that were actually
working and military and diplomatic means that were not..
Talking Dog: Were any actual witnesses called before Judge
Robertson halted the military commissions?
Joshua Dratel: No, just a lot of procedural arguments, mostly
about the fairness and composition of the commissions themselves, and the
Talking Dog: Mr. Hicks has alleged in an affidavit that he was
subject to various forms of abuse (some of us used to call that sort of thing
“torture” before 9-11 changed everything), such as having his hands bound for
hours behind him until he was numb, having his face smashed into concrete, being provided a prostitute if he would inform against other prisoners, which he politely declined to do… what other allegations has he made? Can you tell me what other allegations of “abuse” that you are aware of– either from Mr. Hicks or other prisoners– without disclosing confidences of course?
Joshua Dratel: There was more than the abuse alleged in that
affidavit. The mechanics of the process are that we wanted a comprehensive
outline… I drafted it based on what David told me… along the lines of a law
enforcement agent swearing out an application for a warrant… you want the affidavit to be an outline, to say that there were other things, that were not in the affidavit, that would be detailed later when David would testify. The fact is, a full discussion would have been quite voluminous, and took hours and hours for David to relay it to me. But we wanted to get it out to the public– too much specific detail, and we weren’t sure if the court would ever allow the affidavit, which was filed under seal originally, to be unsealed. So we kept it limited as we did.
David’s affidavit covers periods he was detained in Afghanistan, and
transported to Cuba, as well as in Cuba. Others have been detained in different
places. I would say that his allegations are typlical of the time of what
other detainees received. In some sense, Davied’s treatment was better than what other detainees received. David speaks English, is from a Western country, and had his own lawyer early on. Indeed, David made cooperative statements– so he got better treatment.
Talking Dog: Besides Guanatamo Bay, are you aware of other
locations where the American government is holding so-called enemy combatants who purportedly do not have either domestic criminal status or prisoner of war status?
Joshua Dratel: Only what I have read in public accounts in newspapers and the like.
Talking Dog: Any further comment with respect to your
representation of Mr. Hicks you think our readers should be aware of?
Joshua Dratel: Of the people released from Guantanamo so far,
there seems to be something in common: they are let at out at a critical moment when due process from the American government would have to be provided otherwise. This is quite galling, actually. Because as a result of this, we are sending people to their home countries who, if the accusations against them are to be believed, are remarkably “dangerous”. We know this because “factual records” for each detainee released have been made public. David, who is not alleged to have shot anyone or committed any kind of a terrorist act, is still detained.
By contrast, consider another Australian national, Mahmoud Habib, who was
released. Why? He had previously been rendered to Egypt after transport
from Pakistan, and he alleged that he was abused (tortured perhaps) in Egypt.
Rather than grant discovery on this rendition issue, in a lawsuit brought by
Habib, the government abruptly decided to release him. Based on the government’s allegations in the “factual record” it filed in the district court, Habib was alleged to have trained Al Qaeda terrorists in martial arts and hand to hand combat…
Talking Dog: Including the 9-11 hijackers themselves?
Joshua Dratel: Correct. Habib is alleged to have taught Al Qaeda
hijacking teams hand to hand combat– and he goes home, whereas David sits in detention. David is not merely a seconde class citizen detainee, he is a second class Australian citizen detainee. There is no rhyme or reason to any of this.
Talking Dog: Let’s turn to your book, The Torture Papers,
co-authored with Karen Greenberg, of NYU . How did you come to write that book?
Joshua Dratel: Karen Greenberg contacted me. She was preparing
a program on torture for her institute at NYU. I was assembling the documents
as part of my defenses of the embassy bombing case, and a terrorism case I was defending in Idaho, as well as for IN the Hicks case. She was collecting the
same documents. We put our collective files together, and then made an effort
to obtain every single publicly released document. In September 2004,
Cambridge University Press offered to publish the book, and we completed it.
Talking Dog: I bought a copy (and I’ll bring it round for you to
autograph, if you don’t mind!)…
Joshua Dratel: I tell people to buy it from Amazon— its really
big, and they deliver it to your house…
Talking Dog: I know. It’s longer than War and Peace. I bought it from my local bookstore… I can tell you that the two memos that put the biggest chill into me were the recitations by the President himself that he had the power to abrogate treaty obligations and other provisions of law for certain
people. Were there any memos in the book that you found peculiarly compelling for any reason?
Joshua Dratel: The two that had the most effect on me are the second one in the book, from December 2001. Its so stark in its purpose– discussing habeas corpus jurisdiction at Guantanamo Bay and that it was beyond the rule of law! There can only be one reason for that, and it’s not a good one. The other memo is from Gonzales to the President calling the Geneva Conventions “quaint and obsolte”– that the Office of Legal Counsel at the Justice Department marshalled these laws for the President to make a decision designed for a result in mind… one must give credit to the State Department for insisting on trying to create a policy that was even handed– though this did not prevail…
Talking Dog: Do you think that by and large the American people
really care about this issue at all, and why do you think that is?
Joshua Dratel: They care about some of these issues in the
abstract, but they have no idea how things are being done at Guanatanamo. These are not proven terrorists. there has been no determination of any value at all. You would hope that Americans would care about torturing the innocent. Certainly, there would be concern for OUR personnel in the hands of another nation. I’ll tell you that the military people are very concerned. They are concerned about the reciprocal effects of our runnning a process that isn’t fair, or capable of making objective determinations, even if no Americans are subject to them. But think about when it’s our personnel– such as when Private Lynch was captured– how we demanded that she and others be treated per the Geneva Conventions. In the future, how can we make demands like that with a straight face– or will others pay any heed when we ignore the conventions and flout the rules ourselves?
Talking Dog: What do you think will be the ultimate ramifications
of our nation’s foray into extra-judicial detentions, and
extra-legal interrogation methods?
Joshua Dratel: I’m hoping we will have a revitalization of our
national priorities. The government has already retreated on its
original positions on torture. Whether it was merely for the benefit of the
Senate just before the Gonzales confirmaiton or for another reason, the
government has officially repudiated its earlier position on torture, or at least
retrenched from it. No one, of course, admits that we’ve tortured people, but we
can redefine it anyway…
In the interim, there is a danger of incursions into the ordinary
criminal justice process of these standards… exceptions tend to leach into the
We hope, that with the habeas corpus cases and the Supreme Court cases
last year, these will put a brake on this sort of thing, but the overall
potential ramifications are quite serious…
If history is a guide, countries like Argentina and Chile that resorted
to torture ended up with seriously fractured socities, on a fundamental moral
level… these issues have been lasting sores in those countries. Wounds
that don’t heal. We will have to deal with this for a long time to come.
Talking Dog: You’ve been ridiculously generous with your time, and this has been extremely interesting and enlightening,and I thank you, and wish you the best of luck in your representations. I’m sure I join all my readers
in offering you our thanks.
In November, 2004, shortly after the reelection of the American