January 9, 2006, TD Blog Interview with Baher Azmy
TD Blog Interview with Baher Azmy
On January 4, 2006, I had the privilege of speaking, by telephone, with Baher Azmy, Professor of Law at Seton Hall University Law School in Newark, New Jersey. Professor Azmy is the principal American attorney for Murat Kurnaz, one of approximately 500 detainees still held by the United States government at Camp Delta, Guanatamo Bay, Cuba. Kurnaz is a Turkish national (by virtue of his parents' nationality) and was born, raised and living in Germany at the time of his apprehension in late 2001 by Pakistani officials, and his subsequent transfer to American custody at Kandahar, Afghanistan, and then to Guantanamo Bay.
Later this week, German Chancellor Angela Merkel will be meeting with the President in Washington. Mr. Kurnaz’s case may be on her agenda; she has already called for the closure of the Guantanamo Bay detention facility.
What follows are my interview notes, as corrected where appropriate by Professor Azmy.
The Talking Dog: I always ask this question first (largely because in my own case, the answer was "in my 16th floor windowed office across the street from the World Trade Center"): where were you on September 11th?
Baher Azmy: I was in Brooklyn helping a friend of mine run for City Council out of the Park Slope area; there was a primary election that day. I was handing out leaflets near a polling place, when someone said "I have to get to the World Trade Center- my Dad works there." Since I didn't know what was going on, I didn't know why she said that. She said "Didn't you hear? A plane hit the World Trade Center. Another woman passing by just called out "a second plane just hit the World Trade Center". We walked about a block away to get an unobstructed view of downtown Manhattan, and we saw the smoldering towers... At that time we went to the home of a mutual friend of the candidate's, and watched on her television- as she didn't have cable, we watched Channel 2 (WCBS-TV the local CBS affiliate) as it was the only station with reception [all other New York Stations broadcast from the World Trade Center tower at the time, while WCBS used the Empire State Building] . We learned of other missing planes, and felt totally besieged and under attack. I stayed until around 5:00. My sister worked downtown. We were waiting phone calls from various people to make sure they were alright. When the subways started running again, I remember taking the Q train over the Manhattan Bridge, past a view of the smoldering rubble. I was deeply affected by the events of that day.
The Talking Dog: I understand that you were the first detainee's attorney to be permitted to visit a client at Guantanamo Bay. If I may ask, how did you come to represent Mr. Kurnaz?
Baher Azmy: I was actually the third attorney to visit Guantanamo Bay. I visited from October 9th through 13th in 2004. As to how I came to represent Murat... in 2004, after the Rasul case, which involved a group of Kuwaitis represented by a firm in D.C. and a public interest group in New York, and in which the Supreme Court found that federal courts had the power to review the legality of the detentions, a number of other people were activated, and authorized to represent detainees. Europeans with contacts in the human rights community were very active, and many of the families of European detainees asked the lawyers handling the Rasul case to refer them to counsel. Rabiyah Kornoz-- Murat Kurnaz's mother-- got a German lawyer (Bernhard Docke), who in turn, approached the Gibbons, Del Deo firm in Newark, New Jersey, who in turn, approached me, which is how I got involved. We filed a habeas corpus petition on behalf of Murat as "next friend" in the name of his mother, as of course, we were not permitted at that time to meet Murat to obtain his signature on the petition. I obtained a security clearance, which we were told would be an expedited process. I feared there might be a delay as I am a dual citizenship with the United States and Egypt, but fortunately, it did not take that long to obtain my clearance.
The Talking Dog: And-- to the extent not classified-- can you tell us what you physically observed at Guantanamo Bay, Camp X-Ray, Camp Delta, Camp Echo and anything else you've observed; my only knowledge of the physical layout of the place was from the movie "A Few Good Men"....
Baher Azmy: I have been to Guantanamo Bay three times, and am supposed to go again shortly. The topography in general is not what I'd expect in the Caribbean: it is hilly, and craggy, and dry. It is the strangest place on Earth, as far as I'm concerned. It was stranger still because of the intensive anxiety I felt when I first visited. I had a Marine escort and a DOD civilian escort (they have since discontinued the non-military escort). A bay separates the leeward part of the base-- where we stay, along with journalists and other lawyers and foreign guest workers-- from the windward side, where the military personnel reside, and the detention camps are located. One takes a ferry to the windward side, and is then taken to the camps. For me it was an anxious moment when I first met my client. At that time, I was escorted by a Marine Gunnery Sergeant Santana, who was a chatty, affable fellow, who wouldn't stop talking, actually.
Lawyers were permitted to meet with clients in Camp Echo-- which has cottages that resemble summer camp bungalows on the outside, inside are cells, and tables and chairs for meeting; prisoners were shackled to the floor. The rooms are private, though there is a video monitor. We were told that no sound recording or monitoring was undertaken, but I have no way of knowing whether there was or not, one way or another. I have seen some better prison meeting areas for lawyers and client-prisoners, some worse.
The prisoners are housed at Camp Delta-- which I have not been permitted to observe. My understanding from Murat is that Camp X-Ray-- where prisoners were first detained, has the outdoor "pens", Camp Delta is more or less indoors, the "cages" inside are small mesh cage areas, with a prison toilet and built in beds-- people are constantly moved to avoid building up attachments or relationships among prisoners.
The Talking Dog: Is Mr. Kurnaz participating in the hunger strike that is currently going on among detainees at Guantanamo Bay?
Baher Azmy: My understanding is that he is not participating in the current hunger strike. The problem is that there is no real way to know this, absent literally going down there and talking to him myself.
The Talking Dog: Have you requested Mr. Kurnaz’s medical report, and if so, have you been provided with it?
Baher Azmy: I have indeed made direct requests for it, which have not been granted. I have subsequently made a Freedom of Information Law request for it, which is still pending.
The Talking Dog: I understand that some aspects of Mr. Kurnaz’s classified file were declassified...
Baher Azmy: Yes, a good deal of this was discussed in the Washington Post article on his case. The Washington Post had made its own requests, but ultimately, I got his files declassified. Learning this was a key development. In the classified files was the only evidence linking Murat to terrorism– supposedly, his friend was suspected as a suicide bomber in an Istanbul bombing. Of course, that friend is still alive. And the bombing took place well after Murat was in custody. Judge Green discussed this in her decision (the unclassified part) as a violation of basic due process, to find Murat responsible for the crimes of others, indeed, crimes that hadn’t even been committed at the time of his apprehension!
The other supposed link to terrorism was that Kurnaz was traveling with a group called Jamiyat al Tablighi, a Moslem missionary group. I have researched this group– it is a peaceful missionary group– attractive to many young Moslems– that teaches the fundamentals of the Koran and how to pray...
The Talking Dog: I understand that he was traveling from madrassah to madrassah...
Baher Azmy: Madrassah is, of course, a loaded term these days. He was with a missionary group, and there is no evidence– never has been– that it has any involvement with terrorism– that it was anything other than a group of religious missionaries.
Murat traveled with this group in Pakistan. He was picked up at a bus stop, in a bus full of Pakistani men, a Western looking person sitting in the bus shortly after 9-11 was singled out. He was questioned by Pakistani local police, when they established he was not a journalist, they turned him over the federal police, who turned him over to the Americans. Our supposition is that the Pakistani government was then under great pressure from the United States to produce “results”, which in this case, meant arresting people.
The Talking Dog: What you can tell me about the conditions of Mr. Kurnaz's confinement, as you were permitted to observe them, or as he described them? We understand that her he contends he has been mistreated-- can you elaborate on what he experienced? You've described Guantanamo Bay, at least as you are quoted in a New Yorker article, as "a great big experiment". Can you elaborate on that? Have there been conditions of confinement directed by the federal judiciary, and has the government complied with those conditions (if you can tell me)?
Baher Azmy: The conditions of Murat's detention are as he described them to me, as I have not been permitted to observe anything beyond the bungalow in Camp Echo. The description of conditions is twofold, between the Afghan (Kandahar) piece, where his treatment was brutal and episodic and chaotic by angry MPs shortly after 9-11, and his later Guantanamo piece, where the treatment has been systematic and organized. At Kandahar, Murat (and others) were left outside in shorts, and just a blanket-- despite December in Afghanistan being brutally cold. While in American custody in Afghanistan, Murat was waterboarded-- his head dumped in a large ovular tub of water t simulate drowning. Murat is funny-- still has his sense of humor despite being deeply depressed about his situation overall. When I suggested a few seconds as the length of his submersion, he said "no, that's what I'd do with my brothers when I played with them... this was longer!" Also at Kandahar, electrodes were attached to his feet, he was told by a soldier "this should warm you up" as they ran electricity through it. At one point, a soldier loaded a magazine into a rifle, and put the rifle into his mouth, screaming at him "I'll kill you ". He was hung by his hands over his head, and placed in a shipping container at one point for a few days without food. In Afghanistan, Murat was suspected of an association of Mohammed Atta, who was from Hamburg, Germany, while Murat is from Bremen, Germany. That justification for holding Murat is now gone, of course. Also at Afghanistan, Murat believes he witnessed a detainee being beaten to death.
In Guantanamo, the conditions of detention have been more systematic and planned. There has been constant sleep deprivation, noise generated such as loud music and other noise, constant interrogations; he has been short shackled for hours and forced to go to the bathroom on himself... he has been taunted sexually by female interrogators. One woman put her hand in his shirt; Murat headbutted her, at which point, other interrogators rushed in the cell and beat him, and shackled his hands behind his back for 20 hours. He was deprived of food, at one point, for 11 days. At one point, he was on a hunger strike, and he and others were force fed through feeding tubes.
I have said I viewed Guantanamo Bay as a great big experiment in interrogation methods. For one thing, as to the sexual humiliation, I was very skeptical, until the afternoon after I first heard it, the stories of the use of the menstrual blood on detainees came out in the press. My understanding is that these events occurred before the Abu Ghraib abuses became public.
My understanding of the interrogations is that they were being directed from very high. Very high officials were concerned with the lack of effectiveness of the Guantanamo Bay interrogations, and various methods were tested to determine if they would yield information. Every detail of food and bathroom activity is meticulously recorded and charted, and then cross-checked and compared for success rates. This explains some of the weird aspects of the interrogations-- outright experimenting with methods intended to break down the prisoners in various ways-- and then reporting the effects and if the interrogation methods are effective.
The Talking Dog: Are you aware of whether conditions of confinement have been the subject of any judicial orders?
Baher Azmy: I am not aware of specific instructions as to conditions of confinement from the federal judiciary. There have been motions for better conditions in various courts, but these have not been ruled upon. There was a successful set of motions on behalf of Saudi detainees by a law firm in Washington, DC, that demanded that their lawyers get weekly medical records-- they could document the ineffectiveness of the medical treatment their clients were receiving. In one case, a prisoner named Al-Dosari tried to kill himself while his lawyer was present.
Interestingly, in at least one case, in responding to a motion for better conditions for a prisoner who had no human contact, the Government insisted that he does gets contact– regular contact– and can even play checkers--
The Talking Dog: And he gets served lemon chicken--
Baher Azmy: Right. Lemon chicken and rice pilaf. And he can play checkers and have regular contact... with his interrogators!
The Talking Dog: In the United States, other than acknowledging the existence of the Guantanamo Bay facility and a general notion that it holds dangerous men, the plight of the detainees barely gets public notice. Is Mr. Kurnaz a significant cause celebre in either Germany, Turkey or anywhere else, as far as you know?
Baher Azmy: This is a very significant case in Germany, particularly after the allegations surfaced concerning the extraordinary rendition of Khaled Al-Masri. It was all over the German press at that point, as it was when it was learned that German officials had visited Murat at Guantanamo Bay in early 2003 and mid-2004, not to help him, but to interrogate him. They came down with a laptop and pictures to show him people they suspected, such as an Imam who he knows, and other “suspicious” people. This was a key event in Germany– Germany had refused to help him diplomatically because he is not a German citizen under German law– he is a Turkish citizen. There was overt outrage when it was learned that Germany refused to lift a finger to help him, and of course, decried Guantanamo Bay and American detention policy in general, and yet used the occasion for its own intelligence.
As to Turkey, we have had indirect contacts with Turkey- at one point, it was rumored that Murat was going to be released to Turkey, but those rumors proved false. The Turkish people are not interested in Murat; they have taken at best a pro forma interest, effectively, no interest. So Murat is in a diplomatic Bermuda triangle, as neither Germany nor Turkey have done much of anything on his behalf,
At this point, the question for Germany becomes whether this is worth having a major foreign policy fight over– if this is one of the top ten issues on the German-American agenda.
The Talking Dog: The Supreme Court recently accepted review in the Hamdan case. Am I correct that its decision in that case is essentially the ballgame, as far as the ultimate vindication of Mr. Kurnaz's legal rights? Are you participating in that case, or seeking consolidation with Mr. Kurnaz's case? What is the status of appeals in Mr. Kurnaz's own case (i.e. was it subsumed as part of the D.C. Circuit's ruling in Hamdan?)
Behar Azmy: The Hamdan case only effects this case insofar as the issue of whether the Geneva Conventions apply. But is the subject of a separate appeal... an appeal in which we appeared to be prevailing on the basis of the Habeas Corpus Act. Everything else on this case has been held up by the Graham-Levin Amendment...
The Talking Dog: What do you think the effect of the recent Graham-Levin-Kyl Amendment essentially stripping federal courts of habeas corpus jurisdiction over detainees going to be on either the situation of Mr. Kurnaz, or the other Guantanamo Bay detainees? Do you have any further comment on that? Am I correct that even if Congress deems it appropriate to deprive a party of jurisdiction to bring an action under the Constitution in a federal court, such an action might well lie in a state court (or the District of Columbia Superior Court), especially given Article I, Section 9 of the Constitution' (The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it)? What would be the effect on pending cases, such as Mr. Kurnaz's? Surely, the war on terror cannot be construed as 'rebellion or invasion" when not even the Civil War did... could it?
Behar Azmy: That’s an interesting theory... Obviously, our first line of defense will be that the Graham-Levin Amendments were not intended to– and cannot constitutionally– apply to already filed and active cases, such as Mr. Kurnaz’s. We will also argue other constitutional problems with the statute...
The Talking Dog: On the subject of the current nominee for associate justice, Judge Samuel Alito, who I understand is your colleague on the Seton Hall Law School faculty, do you believe that selecting a justice likely to support the President's policies in his handling of the war on terror, to wit, cases such as Mr. Kurnaz's and the other Guantanamo Bay detainees, or stateside detainees such as Padilla or al-Mari, is one of the criteria the President is using or has used in making his nomination choices? Without disclosing confidences of any kind, do you have any insight on how a Justice Alito would view such cases?
Behar Azmy: I have no particular “intimate read”, and have certainly never discussed any of this with him. In my view– based on my reading of his writings and other things that are in the public domain– that he would likely be very solicitous of the Administration, particularly in its conduct of the War on Terror. Recently, I learned that he signed a statement to the effect that the executive should have every right and ability to chart the course of legislation (and interpret it) as the legislative branch itself...
In my view, the Administration is concerned with issues like abortion on the margins, especially compared to the advancement of its executive power. My reading of the record is that that is the kind of justice the Administration wants and that is why they named him.
On a personal level, I understand he is very popular among the students, and is regarded as very amiable personally.
The Talking Dog: My understanding is that after the Hamdi case last year, Mr. Kurnaz was hailed before a military tribunal that called itself a Combatant Status Review Tribunal. Am I correct that you contend that this did not comply with Geneva Convention requirements, and if I am correct on that, could you explain why it does not so comply (and am I right that this concerns the matter of "impartial arbiter")? Also– we touched on this above– but I understand that significant portions of Mr. Kurnaz's files have become declassified, and this was referred to in the lower court opinion by Judge Joyce Hens Green. Can you elaborate on this-- including if you would, Judge Green's assessment of the evidence both against and in favor of the continued detention of Mr. Kurnaz? Are you now aware of the full basis for Kurnaz’s detention as asserted by the Government, classified or not?
Behar Azmy: Yes, the Combatant Status Review Tribunal was not an impartial arbiter. Three military personnel who in effect have already made their determination that Murat was guilty decided that he was an “unlawful combatant” and would continue to be held. I understand that in some cases– particularly the Uygurs [from Western China] and one Russian have been found to be “no longer enemy combatants” (implying that they once were), though they are still being held. Everyone else has been found to be an enemy combatant.
As to the other part of your question, yes, I now know the whole basis for Murat’s detention.
There was a classified file– and Judge Green referred to it– noting that only one piece of paper in it alleged that Murat was “clearly a member of Al Qaeda”. She found that the document had no detail, a nd was totally conclusory, and conflicted with the assessments of military intelligence personnel that there was no basis to conclude that Murat had any connection to Al Qaeda. Parts of the file have now since been reclassified, though to the extent that the Washington Post has published details, those exist, are public, and I can talk about those details.
The Talking Dog: I've asked this question before of others-- and I'd like your reaction. I have been taken aback a few times by the proposition-- found by the 4th Circuit in Jose Padilla's case and by the D.C. Circuit in the Hamdan case-- that the Authorization for Use of Military Force Resolution passed by Congress in 2001 authorizing the President to use force necessary to thwart and/or capture those responsible for the September 11th attacks has now been likened to a declaration of war for purposes of establishing military jurisdiction to detain and try prisoners, for purposes of relying on the precedent of Quirin, but then is simultaneously not a declaration of war for the purpose of anyone captured (including citizens) relying on the third 1949 Geneva Convention signed by both the U.S.A. and Afghanistan (because our war against Al Qaeda was somehow distinct from our war against the Afghan Taliban), which would require such prisoners to have impartial status hearings, and pending which, to be prisoners of war and subject to treaty protections as such... is my assessment of a sort of Alice in Wonderland quality to these rulings accurate?
Behar Azmy: Yes, there’s most definitely an Alice in Wonderland quality to it. One can also explain things in terms of cynical opportunism and motives... one side simply picks and choses what works for it at a given moment in a given situation, and asserts that... Such as assertions of “we keep the Geneva Conventions in mind”, though we won’t actually apply them or enforce them against ourselves when we don’t want to.
The Talking Dog: What are you as an attorney–besides filing and pursuing the appropriate action ain any forum that will hear it, I suppose– and what are we as citizens-- supposed to do– knowing that the United States government has been holding, interrogating, and (by his account) torturing, Murat Kurnaz, an almost certainly innocent man that the military's own files demonstrate poses no threat and has no connection to Al Qaeda, terrorism or any action against the United States?
Baher Azmy: Again, one asks cynically how it is possible that we can hold someone under these circumstances... is our government that venal an institution? Of course, once you avoid the rule of law, there is no confidence that the people kept should be, or that the people released should be, and hence, the results become totally arbitrary... there are no thresholds. Detainees alleged to have done far worse things than Murat have been released, while other detainees comparably innocent to Murat continue to be held, indefinitely... One has a sense of historical inevitability... we will look back on this whole thing with shame and disappointment and mendacity... Yes, certainly, from my perspective, you fight in every forum you can, pursue every legal remedy seeming available... But one finds it personally frustrating and depressing. Its professionally frustrating, knowing that you are always on your heals...not just me, but all involved in these representations,,, find it deeply depressing. We are facing institutional darkness, incompetence and disingenuousness for no good reason. Frankly, we have leveraged our Constitution so that we can hold Murat.
The Talking Dog Is there anything else you believe that people need to know about either Mr. Kurnaz's case, about the other tribunals or detainees at Guantanamo, or the conduct of the war on terror in general? Are there any questions on these points that I should have asked you, and if so, what, and how would you answer them?
Behar Azmy: Well Graham Levin is a whole long fight. It leads to its own source of frustration and depression... frankly, it leads to infuriation and wonderment at this Administration’s knowledge and willingness to make brazen use of power. Take the case of Padilla– to avoid Supreme Court review, they move him out of military custody. In Murat’s case– I was in a courtroom– we were going to prevail on the basis of the Habeas Corpus Act– basic protections to test the evidence against Murat in a federal court...
The Government knew it would lose– the Supreme Court in the Rasul case expressed little sympathy for the Government’s position...
So we have a savvy and strong adversary with no compunction against changing the rules when it suits it. And that is exactly what it has done... this process is a moving target, like Charlie Brown and the football that Lucy always moves before he kicks it... just as the Government is about to lose in this area, it changes the rules with Graham, Levin... that’s just this occasion. Its not merely a moving target– one player– the Government– gets to move the target.
There has, at least, been some interest in Murat– any number of articles on him, including a whole series in the New York Times called “One Man’s Odyssey.”
The Talking Dog I join all my readers in thanking Professor Azmy for that eye opening discussion, and for being so generous with his time.
Comments
Thanks for this great interview. I, along with some German bloggers, have been trying get people interested in Murat's case.
http://dialoginternational.typepad.com/dialog_international/2005/10/take_action_to_.html
The good news is that Chancellor Merkel has indicated that she would take up this case on her visit to Washington tomorrow. Let's she if she lives up to her commitments.
Posted by David at January 12, 2006 8:32 PM
With all understanding for the outrage after 9/11, this whole story is a big shame for the USA.
For me, hearing about this case is always like a needle in my flesh, how must the parents of this boy feel?
Finally this is one of the cases that made me and my wife join AI.
Posted by Hans-Peter Radenberg at March 1, 2006 4:11 AM
Great reading, keep up the great posts.
Peace, JiggaDigga
Posted by JiggaDigga at April 7, 2006 12:40 PM