As the Moussaoui trial and the recent Supreme Court arguments in the Hamdan case remind us, many aspects of the "war on terror" are being fought in the legal system-- and unfortunately for a society that supposedly values the rule of law-- a number of battles that the Bush Administration has elected to pursue around the legal system. Jonathan Hafetz, now an associate counsel at (my alma mater) New York University School of Law's Brennan Center for Justice's Liberty & National Security Project, is representing clients in several of those areas, including a Qatari client at Guantanamo Bay, a Qatari client now held in the same naval brig that long housed Jose Padilla, and an American citizen held in Iraq that our military wants to turn over to Iraqi authorities where he might well be tortured. Mr. Hafetz has also written extensively on legal aspects of the war on terror, including a recent piece in the New York Law Journal on the case of Arar v. Bush, involving the policy of "extraordinary rendition." (By coincidence, both Mr. Hafetz and I are coaches in the same youth soccer league, and our teams will likely face each other later in the season.)
On April 11, 2006, I had the privilege of speaking to Mr. Hafetz by telephone. What follows are my interview notes, as corrected by Mr. Haftetz.
The Talking Dog: My obligatory first question is "where were you on September 11th"?
Jonathan Hafetz: It was my oldest son’s first day of pre-school. I was dropping him off at his school in Brooklyn Heights. We heard a loud noise. Someone had a radio, and we heard the terrible news. At that point, we started to see the smoke come across from Manhattan, and we made our way home.
The Talking Dog: I'll follow that with, if you can tell me (without disclosing anything privileged or classified, the same ground rule for all my questions), where some of your clients were, including the forgotten man, Mr. Saleh Al-Marri , and your Guantanamo detainee client, his brother Jarallah Al-Marri was on 9-11?
Jonathan Hafetz: I’m not exactly sure where Jarallah Al-Marri was on that date, but he was not in the United States.; I know he had been in Pakistan for some period of time. As to his brother, Ali Al-Marri, he was a student. He had come to the United States to obtain his masters degree at Bradley University in Peoria, Illinois, and that’s where he was. He was arrested at home in Peoria in December 2001 as a material witness. He was charged in the Southern District of New York in February of 2002 on various charges including commercial fraud and giving false statements to the FBI. He was prosecuted for 16 months, and then the prosecution was dismissed in this venue, and he was reindicted in the Central District of Illinois. Then, as of June 23, 2003, the criminal case was dismissed by the government when the President unilaterally declared Ali al-Marri an enemy combatant and ordered that he be transferred to the naval brig in South Carolina where he has been held ever since...
The Talking Dog: I think it’s quite an understatement to say that Ali Al-Marri’s case has received less publicity than Jose Padilla, who was held at the same brig on the same basis, but it seems his case is really under the radar... (I first learned of it during my interview with Josh Dratel, counsel to Gitmo detainee David Hicks.) Can you comment on that, and can you tell us the current status of his case, which I take it is in the form of a habeas corpus petition in South Carolina?
Jonathan Hafetz: Certainly, his case has received less publicity than Padilla, who is, of course, a citizen, whereas Al-Marri is a legal immigrant. The fact is, the government’s argument as a basis for holding him is the same as Padilla: that the entire United States is a battlefield in the administration’s "war on terror." While the Hamdi case concerned a citizen engaged in hostilities on a foreign battlefield, thus far, the U.S. Supreme Court has not ruled on the legality of the government’s detaining a civilian arrested in the United States itself (and it avoided the opportunity to do so recently in Padilla’s appeal).
As to Ali’s case, the District Court Judge Floyd, the same judge who ruled in Padilla’s case, denied our motion for summary judgment but ruled the courthouse doors were open for Mr. al-Marri to challenge the government’s allegations. We are presently litigating Al-Marri’s entitlement to due process to challenge the government’s factual basis for those allegations, and demanding a hearing consistent with due process of law.
The Talking Dog: Is it not the case that this is a still-live case presenting virtually the identical issue as Padilla (which the Supreme Court just ducked)?
Jonathan Hafetz: Certainly, the issue is very much live, and presents a danger to us all insofar as the government is asserting the right to strip any one of us of all due process rights and constitutional protections. So yes, that is definitely still the case– Al-Marri’s immigration status as opposed to citizenship doesn’t change that.
The Talking Dog: Can you tell us the current status of your Guantanamo-detained client, Jarallah Al-Marri, and your impressions of Guantanamo, if any?
Jonathan Hafetz: At the moment, there is a habeas corpus petition on his behalf pending in the District of Columbia federal district court. There are a number of cases that are up on appeal in the D.C. Circuit Court that will likely have a profound impact on his legal status, and indeed, on the status of all the Guantanamo detainees; his case is not in that group right now.
I have met Jarallah and been to Guantanamo a number of times. My general impressions... Guantanamo is unique. It was constructed as a military prison, to house individuals not charged with any crime... it was intended to be outside of the ordinary legal framework and legal protections. It demonstrates how the "war on terror" is being prosecuted in a manner inconsistent with the rule of law. Jarallah has been kept in extremely restricted circumstances...
The Talking Dog: Camp 5 at Guantanamo?
Jonathan Hafetz: Correct, he has been held at Camp 5, the most restrictive camp, in complete isolation, lights on 24-7, he can’t sleep, he has lost 30-35 lbs. in the time he was been confined there. He was on hunger strike for three weeks last summer, and was force-fed with an i.v. Before arriving at Guantanamo, he was held at Bagram Air Base in Afghanistan, where he was beaten by U.S. officials, threatened with death, and hit with a 2X4, before being shortshackled and placed on the long flight to Cuba.
The Talking Dog: Let me turn to another client you are representing, and let me ask you where your representation of Shawqi Omar stands now. He is an American-Kuwaiti dual national detained in Iraq, accused of being an associate of purported Al Qaeda in Iraq leader Zarqawi, Omar is still now held there, and the United States military wants to turn him over to Iraqi authorities, where I understand you contend that he will be tortured. Has Judge Urbina (of D.C. federal district court) ruled on the application to transfer Omar?
Jonathan Hafetz: In February of 2006, Judge Urbina, a federal district court judge in Washington, granted a preliminary injunction preventing the government from transferring Mr. Omar from military custody (of American or coalition forces) to Iraqi custody. Judge Urbina rejected the government’s arguments as to jurisdiction and found he had jurisdiction and that he could address the merits of Omar’s habeas corpus petition. Now we are litigating to obtain access to him and information about his detention and related matters. But there is jurisdiction, and the case is proceeding.
The government wants to hand Omar over to the Iraqis– for trial...
The Talking Dog: Now let me confirm– Omar is a citizen, correct? Do we even have an extradition treaty with the newly sovereign Iraq?
Jonathan Hafetz: Correct, Omar is an American citizen. I believe we do have a treaty in effect with Iraq, but that’s not really the issue here. Extradition is a formal procedure, with a judicially supervised process. Here, no real procedure is followed– this is an “extra-legal” transfer being proposed– if you will– a rendition.
Jonathan Hafetz: That’s an interesting question, but the TVPA has not been pleaded. We are proceeding under the federal habeas corpus statute and the U.S. Constitution. I should note that the government has tried to evade our petition, by trying to transfer Omar to Iraqi custody, but Judge Urbina has enjoined that...
The Talking Dog: Has the government appealed the preliminary injunction against transferring Omar?
Jonathan Hafetz: The government just filed a notice of appeal. [Note: the notice of appeal was filed late last week, during the editing process of this interview, after my telephone conversation with Mr. Hafetz.]
The Talking Dog: I'd like to use that as my segue into discussing the Arar case, about which you wrote a discussion and critique in the March 15th edition of the New York Law Journal. The district court judge David Trager found that Mr. Arar, the Canadian-Syrian dual national detained at Kennedy Airport in transit between Switzerland and Canada, subsequently held incommunicado for two weeks and transferred via Jordan to Syria, where he claims he was placed in a coffin sized cell and tortured for around a year, could not maintain a so-called Bivens action against the officials responsible for the decision to transfer him to Syria under either the applicable statute (the Torture Victims Protection Act) or under the Constitution. Let me start with what I view as a distinction between Mr. Arar and Mr. Omar. Mr. Omar is an American citizen, and as such, by the TVPA statute, apparently cannot be transferred by the United States to an authority that will torture him, and Judge Urbina would probably be incorrect if he permitted Omar's transfer to Iraqi authorities (assuming he accepted the likelihood that Iraqi authorities would torture him). Mr. Arar is not a U.S. national, and as such, that statute does not, on its own terms cover him--and Judge Trager correctly held that it did not. Do I have that right? And if not, why not?
Jonathan Hafetz: My understanding was that the basis of the TVPA holding was that Mr. Arar’s rendition was not "under color of foreign law" as required by that statute. Certainly, the court discussed citizenship– finding that congress did not intend to extend the Alien Tort Claims Act to this kind of case by its silence... but the court found citizenship alone was not dispositive. What the case actually turned on was "color of foreign law"... So Arar could possibly sue Syrian (or even Jordanian) officials for their role in his transport and torture under the TVPA, but not American officials, who were operating under American law, or at least, American policy.
The Talking Dog: In Arar, Judge Trager applied a judicially made exception to Bivens (that being the case permitting lawsuits against federal officials for violations by them of constitutional rights) based on "situations counseling caution" finding that, among other things, Mr. Arar had minimal rights as a foreign national seeking transit through the United States rather than entry, that the limited rights he had (which included the right to due process of law-- which the court found applied to him) are outweighed by the interests of national security and evidently the interests of not embarassing the governments of both the United States and Canada (which, in my interview with him, Rick Wilson criticized for not standing up for Canadian national Omar Khadr when I interviewed him, making me wonder if there isn't some unspoken cooperation between Canada and the Bush Administration in the War on Terror that they would really prefer remained unspoken.) My question (if I ever get it out!) is this: under his analysis, Judge Trager ostensibly held that the only protection for an American citizen being subject to "extraordinary rendition" or shipment to another nation that would abuse and torture him or her, is statutory-- the Torture Victims Protection Act, discussed before. Hence, under his analysis, if that statute were repealed (as it could be by Act of Congress), there would be no protection for aliens or citizens from the government's "providential" decision to "rendition" them to another country for torture, which sounds anathema to our Constitution as a whole, the Bill of Rights in particular, and lots of other things. Is my analysis correct? Is that the fundamental problem in applying the same analysis to Mr. Arar? If not, what is, and could you please identify the other problems with the decision in Arar?
Jonathan Hafetz:: Any comment by me on Canada’s involvement would be speculation. That’s just it: the government could have claimed a state secret’s privilege to preclude inquiry into that area, but Judge Trager went so far as to hold that merely invoking the exception might somehow undermine national security.
Regarding the Bivens exception for situations counseling caution, as I wrote in the Law Journal, that exception is governed by a case called Chappell v. Wallace, which concerns matters purely internal to the military, such as discipline within the services. In short, Judge Trager incorrectly expanded this narrow exception to Bivens to deny Mr. Arar a remedy, even where Judge Trager assumed that his treatment was probably unconstitutional.
Now, this is a damages action, of course. Judge Trager discussed injunctive relief, and noted that injunctive relief may be available, but he would not entertain a damages action...
The Talking Dog: But in Arar’s case, the government misled his lawyers about where he was, and transferred him without telling them, so they weren’t in a position to even know that they had to bring an injunction action...
Jonathan Hafetz: That’s exactly right. And that’s a critical detail of what’s extraordinarily troubling about this decision: there is no check by the judiciary on the executive’s ability to do virtually anything it wants to anyone as long as it invokes “national security” in doing so.
The Talking Dog: Is there anything else that my readers or the American public needs to know about Guantanamo Bay or the government's detention policy associated with the war on terror or related matters that I haven't asked you, but should have, or otherwise needs to be discussed?
Jonathan Hafetz: The United States of America, since its inception, has stood for the rule of law. The actions of our government associated with the war on terror– notably, the arbitrary deprivations of due process, in violation of the Constitution, laws and treaty obligations– have fundamentally jeopardized that. What has been done has undermined our standing in the world, and is not an effective use of our resources, either. We have been holding some men over 4 ½ years, without charge or trial or any notion of due process, and insist on our right to detain them for life, even though they have never been, and may never be, charged with crimes. The war on terror will doubtless present us with more challenges. One of those challenges should not be the sacrifice of the rule of law.
The Talking Dog: Mr. Hafetz, thank you for being generous with your time.
Jonathan Hafetz: Thank you for doing this.
Readers may also find talking dog blog interviews with attorneys Joshua Denbeaux,
Neal Katyal, Joshua Colangelo Bryan, Baher Azmy, and Joshua Dratel (representing other Guantanamo detainees) and with attorneys Donna Newman and Andrew Patel (representing "unlawful combatant" Jose Padilila), and with Dr. David Nicholl, who spearheaded an effort among international physicians protesting force-feeding of detainees at Guantanamo Bay, to be of interest.
Thank you for this information. Bringing to light these "non-events" forces our elected officials and fellow citizens to expend more effort in keeping their heads buried in the sand.
Posted by Drew E. at April 18, 2006 9:13 AM