The Talking Dog

April 8, 2008, TD Blog Interview with Joanne Mariner

Joanne Mariner is the Terrorism and Counterterrorism Program Director at Human Rights Watch. She has worked on a wide variety of issues for the organization, documenting war crimes in Colombia, Kosovo and Darfur, political violence in Haiti, and the interface between terrorism and the laws of war, among others. Ms. Mariner is a regular contributor to "FindLaw's Writ" and has written numerous articles on these subjects. On April 7, 2008, I had the privilege of interviewing Ms. Mariner by telephone. What follows are my interview notes, corrected as appropriate by Ms. Mariner.

The Talking Dog: The traditional first question, all the more compelling since you, like me, work in a New York skyscraper, where were you on September 11th?

Joanne Mariner: I do, and did, work in the Empire State Building, but I wasn't yet at work that morning. I had a journalist friend visiting from out of town; someone had told her that something was happening at the World Trade Center: we went outside and we could see it from there.

The number of people streaming uptown was a scene that reminded us of Kosovo, where we had both been during the 1999 refugee crisis. We saw the towers on fire, and eventually saw them collapse. My friend’s magazine called and told her that her vacation was over and that she was "on duty". We went downtown, and interviewed a number of people who had just fled from the towers and got quite a close-up picture of the events of that day. It was chaotic, scary, and sad.

The Talking Dog: My understanding is that as a Human Rights Watch attorney, you do not have individual clients in GTMO, Bagram, Pol-e-charkhi or elsewhere, so much as an overall observer role, including writing extensively. Nonetheless, one of the more interesting questions I get to ask of such attorneys is to tell me their impressions of their clients as individuals. Though not "a client", I understand you had an opportunity to meet with the principal of a rendition off the streets of Milan by the CIA, the "Abu Omar case" (now proceeding in Italy), Abu Omar himself (full name Hassan Mustafa Osama Nasr) at his home in Alexandria, Egypt. Can you tell me your personal impressions of Abu Omar? Have you met the Italian prosecutor Armando Spataro, and if so, can you tell me your impressions of him? Where do you see the Abu Omar case going?

Joanne Mariner: I have met Abu Omar, who was rendered to Egypt (from the streets of Italy) in 2003. I've also met a number of people held by the CIA at its secret prisons in Afghanistan. What I note about all of them is how surprisingly resilient they seem -- though they lost years of their lives, they just want to put their lives back together and get on with it.

Abu Omar was living with his wife and son in Alexandria, Egypt. He was following the developments of the case in Milan arising from his rendition against a number of CIA operatives who transferred him to Egypt, mostly out of an interest in seeing some accountability, particularly up the chain of command. But he too is primarily focused on trying to put his life back together.

I also met Italian prosecutor Armando Spataro. He has done an amazingly meticulous job piecing together phone records and hotel bills and other bits of evidence to establish the involvement of CIA operatives in the abduction. The fact that there even is a case pending is largely due to his personal efforts and determination. The Italian government certainly does not want to see this case go forward-- it has become a troublesome diplomatic issue between Italy and the United States, but Spataro has persisted.

The Talking Dog: You have recently written on (and I heard you present on) the issue of "After Guantanamo... what?" Part of this will be the repatriation of some detainees (there are a large numbers of Yemenis, for example, that may reduce the census by a few dozen), some may ultimately be tried, some will probably die of medical neglect or suicide... but there has been an unfortunate trend of imprisoning some in American controlled (sort of) prisons in Afghanistan, such as Bagram or Pol-e-charkhi. Could you comment on the likeliest "after Guantanamo... what?" scenarios, which candidates (B,C or McC) are likeliest to do something different, and of so what?, and lastly, what sort of public pressure should those of us interested in be placing on members of Congress and the presidential candidates for the best outcome (short of all three already being committed to "close Guantanamo")?

Joanne Mariner: Importantly, and encouragingly, all three of the remaining presidential candidates have expressed a commitment to close Guantanamo. But none of the candidates have sketched out a detailed plan as to how to close Guantanamo: what to do with its inmates or those held at America's other detention facilities. At Human Rights Watch, we have suggested that the appropriate means of closing Guantanamo would be to prosecute those alleged to have committed criminal acts, and release the rest, period. Some detainees can simply be sent home, while others cannot -- such as the Uighurs from China, or certain Libyans and Algerians, who might face torture, persecution or worse. So for them, some kind of resettlement plan is necessary. On this question, we've already been meeting with government officials from European countries and elsewhere. To date, the U.S. has sent 8 detainees to Albania. But a more comprehensive solution must be found.

Our real fear is that in closing Guantanamo the government might be tempted to pass a preventative detention law "as a solution". This would establish a Guantanamo-like system on United States soil -- potentially permanently. While most preventive detention proposals that I've heard would allow greater procedural guarantees than those afforded at Guantanamo, they would still institutionalize the long-term detention of people without trial.

The Talking Dog: Following up on concerns ongoing pre-trial, and even pre-charge, "preventive detention", which is, of course, arguably the basis for our holding just about everyone at Guantanamo, Bagram, and stateside in the brig (Padilla and al-Mari), you noted that "liberal" Justice Breyer had suggested that Congress could provide for this sort of thing legislatively, notwithstanding, say, the Bill of Rights (or treaty obligations). Where do you see this going?

Joanne Mariner: During oral argument in Boumediane, Justice Breyer brought up -- more than once, actually -- that Congress could pass a preventive detention law, but has not done so yet. I hope that he didn't mean it as a suggestion.

The Talking Dog: Yet another subject you have written about concerns the subject of laws passing (from Aden to Zimbabwe!) on the subject of criminalizing speech if it is arguably about terrorism (rather than inciting terrorism, which is already a crime). Though the USA isn't there yet (or are we?) you have noted that the USA is in very bad company in a number of areas (such as... preventive detention). Do you anticipate the USA joining its fellow nations in this area (our Constitution be damned, if it hasn't already been dispatched as "quaint")... or is this at least one line we Americans won't cross?

Joanne Mariner: In the U.K. and other European countries, we have certainly seen aggressive encroachments on speech in recent years. The fear of terrorism puts pressure on all areas of law. Still, I'm less concerned about this possibility with respect to the United States -- the First Amendment is strong and well-established here, and the problem in the United States has not been home-grown terrorism or local incitement to terrorism.

The Talking Dog: Have you personally been to Guantanamo (or other American detention facilities) whether to observe proceedings, speak to detainees or jailers, or for other reasons, and if so what are your impressions? Has anyone at HRW been, and what have they told you?

Joanne Mariner: We at Human Rights Watch have requested permission to visit Guantanamo, Bagram and Iraq-based detention facilities, and to speak to detainees in private. Lawyers for individual detainees have been allowed – thanks to the Supreme Court’s decision in Rasul -- but we have not. The government has, to date, denied our requests.

We have attended the military commission proceedings as monitors, though again, not to interview detainees. Jen Daskal, our Senior Counterterrorism Counsel, has been to Guantanamo, as have several members of our legal team. We have written a number of op-eds, blog posts and so forth critical of the cut-backs in basic criminal procedural guarantees afforded to the detainees charged. We are very involved in monitoring the trial of Omar Khadr, who, as you know, was a minor at the time of the crimes for which he is charged. Given our decades-long work on the issue of child soldiers, we find the Khadr case peculiarly troubling.

The Talking Dog: Can you comment on media coverage of issues "war on terror detention policy" in (1) NYC, (2) the USA writ large, (3) the rest of the world?

Joanne Mariner: I've been disappointed not so much by the media but by the monitoring of the representative branch of government, namely Congress. The media has actually stepped up and revealed abuses, created an outcry, and drawn public concern, whereas there has been a real lack of meaningful Congressional response. People like Dana Priest of the Washington Post, Jane Mayer of the New Yorker, Josh White... have done some great reporting. It would be nice to see some follow-up in Congress on the interest they have generated with the public.

The Talking Dog: Overall, how resilient do you see constitutional protections against the incursive national security state in (1) the USA and (2) the EU, ... you can answer "not at all", "somewhat", "irremediable" or any other appropriate response.

Joanne Mariner: This remains to be seen. Terrorism will be with us for a long time. The fear of terrorism puts pressure on human rights and constitutional guarantees everywhere. Torture, arbitrary detention and outright "disappearance" have suddenly become acceptable subjects of debate. It will take real effort to fight back against these abuses, and to demonstrate how such abuses are ultimately counterproductive. Strong arguments and a lot of attention will be required by human rights groups, the ACLU, the press, and the public.

The Talking Dog: On a similar note, how serious would you regard as the diversion of the limited resources of HRW and similar NGOs (Amnesty International, et al.) to dealing with the United States' foray into "the dark side" vs. human rights abuses in the rest of the world, compared to say, the likely increased funding it generates from people (like me, who recently started contributing to HRW) appalled by our own nation's conduct?

Joanne Mariner: With respect to my own organization, Human Rights Watch, we created a specific program in the area of terrorism and counterterrorism, with a strong focus on U.S. abuses, as an add-on to our existing organization. So at least for us, there has been no direct "trade-off". Also, in considering this question, it is important to think about globalization -- how abuses have involved complicity among governments, that not only share intelligence, but even trade in prisoners. Suddenly, actions in Afghanistan, China, and Russia, are closely related to actions in the United States. For an organization like Human Rights Watch, this means that there’s a need for increased collaboration across regional divisions -- Asia, Africa, the Middle East, and so forth. Part of my mandate is to try to facilitate communication among these regional actors, given that the problems of terrorism and counterterrorism are cross-cutting.

The Talking Dog: Can you briefly give a run-down of the current state of the "military commissions", or the latest incarnation of the commissions (thought of by many, such as me, as kangaroo courts) set up at Guantanamo to try alleged terrorists under various flawed criteria, and compare that, to say, the flawed hearings detainees in American custody in Afghanistan (officially Afghan custody, of course) receive, compared to say what American law provides by way of due process... and what do you view as the future of these commissions... will they go on, or will our next President scrap them-- or something else?

Joanne Mariner: The first full trial-- that of Salim Hamdan-- is scheduled to start in May. The proceedings have been slow and ad hoc thus far, and it is unlikely that any of the commission trials will go that far this year, certainly not the trial of the six allegedly implicated in the 9-11 attacks.

The Administration wanted to give impetus to the commissions, but I think it unlikely that they’ll really get moving this year. The next President will have to make important decisions-- scrap the commissions entirely, move the prosecutions into federal court, or continue these proceedings. I predict they will be scrapped. They are unfair, unwieldy, have generated nothing but negative feedback from other countries, and have utterly failed to accomplish their goals thus far.

The Talking Dog: Do you see any serious chance that, as has been threatened, Colonel Morris "Moe" Davis, the former commissions prosecutor, will testify for the defense?

Joanne Mariner: Davis was scheduled to testify on April 28th - but his testimony has been delayed. His testimony would be very damaging to the prosecution, and quite relevant. I hope that it happens.

The Talking Dog: As a "forced-final", let me ask you about the HRW report pertaining to CIA renditions to Jordan, and finally... is there anything else I should have asked you but didn't, or anything else that my readers and the public need to know on these subjects?

Joanne Mariner: In the rendition report, we document how at least 14 CIA prisoners were rendered to Jordan between 2002 and 2004. These men were mostly rendered from Pakistan and from the Pankisi Gorge region of Georgia to Jordan for detention, interrogation, and torture. Jordanian detainees held with them have described their abuse and mistreatment. One of the Jordanians smuggled a note out, which describes how the subject was picked up in Pakistan and abused in Jordanian custody. Jordan is not the only country to receive rendered detainees, but it does seem to have received the largest number. Jordanian intelligence has been an intimate, long time, and trusted collaborator of the CIA.

As to an overall final comment, let me emphasize that we are in the middle of an election campaign. The next President will make crucial decisions, and will no doubt make them very early on in his or her term in office. These issues have to be put on the table now -- we need to make these things part of the presidential debate, and get the candidates on record formulating their proposed solutions, hopefully solutions that are respectful of human rights and effective in fighting terrorism. The next few months will be crucial in setting the tone for the next 4 or 8 years.

The Talking Dog: On behalf of all my readers, I thank Ms. Mariner for that fascinating interview.

Readers interested in legal issues and related matters associated with the "war on terror" may also find talking dog blog interviews with attorneys 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 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, and with author and historian Andy Worthington detailing the capture and provenance of all of the Guantanamo detainees, to be of interest.