The Talking Dog

November 20, 2008, TD Blog Interview with Buz Eisenberg

Buz Eisenberg is an attorney "of counsel" to the firm of Weinberg & Garber, P.C., in Northampton, Mass. and is a professor of constitutional law and criminal justice at Greenfield Community College in Greenfield, Mass. Mr. Eisenberg represents four current or former detainess at Guantanamo Bay, Cuba. On November 3, 2008, I had the privilege of interviewing Mr. Eisenberg by telephone. What follows are my interview notes, corrected as appropriate by Mr. Eisenberg.

The Talking Dog: My customary first question is, where were
you on 11 Sept. 2001?

Buz Eisenberg: On September 11th I was teaching a constitutional law course. As I left the classroom, a colleague, David, saw me and stopped. David is a pilot with his own small aircraft with whom I had flown on occasion, so we have discussed the safety and the dangers inherent in flying. He asked “did you hear, apparently a small aircraft crashed into one of the world trade towers in Manhattan?” He obviously had very little information at that
point (it was maybe 9:30am.) I then went to the behavioral sciences
office to get my mail, where the Dean, Kate, was, frantically yet fruitlessly,
trying to get her sister on her cell-phone. Her sister worked in that
tower. It turned out that morning was the rare occasion in which she was
late for work, having stopped for coffee and a pastry and encountered a
long line, which Kate didn’t learn until much later in the morning. I
learned in the ensuing days that one of my clients perished on American Airlines Flight #11, and I had two other acquaintances who died in New York City that morning.

The Talking Dog: Please identify your Guantanamo Bay based
clients, by name, nationality, current location (such as "Camp 6,
GTMO", "repatriated to Algeria" or whatever applies), and any personal
details about them that my readers should know, whether of family,
personality or anything else (including whether your clients claim to
have suffered abuse at GTMO, Bagram or elsewhere while in American
custody). Also, have any of your clients remaining at GTMO been
"cleared for release" or "designated for commissions"?

Buz Eisenberg: My four clients are:

(1) Abdul-Salam Gaithan Mureef Al-Shihry; Saudi Arabian; repatriated to the Kingdom of Saudi Arabia in June of 2006. He was; one of the younger detainees (17 at time he was taken into custody.) His litigation remains active in order to erase the “enemy combatant”stain. The Government contends that it is mooted by transfer, and that the court now lacks jurisdiction.

(2) Farhi Saeed bin Mohammed; Algerian; Camp 6, GTMO. He has beem cleared for release or transfer on 2007 as a result of a February Adminsitrative Review Board (ARB).

(3)Mohammed Abdal Al Qadir; Algerian; transferred to the control of
Algeria on 8-26-08. LHis litigation also remains active in order to erase the
“enemy combatant “stain. The Government also contends that his habeas claim was mooted by transfer, and that the court now lacks jurisdiction.

(4) Mohammed Abdullah Taha Mattan; Palestinian; Camp 6, GTMO; not cleared for release or transfer.

All of these men are the victims of abuse while at Guantanamo. Without
violating the Protective Order, I can say that the holding of someone in virtual isolation indefinitely, without charges or reason for hope, by definition amounts to “abuse.” Physicians for Human Rights published a study that concluded that it meets every medical definition of “torture” per se.

The Talking Dog: As best you can from publicly available data
including CSRT reports, what is it the United States government contends your clients did to warrant their continued detention?

Buz Eisenberg: The answer to that question is "nothing". All four were alleged to have been in places where they could have been sold for a bounty, and evidently were. We have not yet seen classified habeas returns (though they are technically not yet due under Judge Hogan's rolling order requiring the government to prepare 50 habeas returns per month.)

The Talking Dog: Can you tell me the current status of your
clients' litigations (habeas proceedings, DTA petitions, appeals, etc.), and how has this status changed since the Supreme Court's Boumediene decision, and do you anticipate any resolution of this from the courts, either (1) ever, or (2) during the remainder of the Bush
Administration?

Buz Eisenberg: All four men have habeas petitions pending. All four have had one or more Orders appealed by the government. Because many of these matters are under seal I cannot describe them in any more detail. Two of my four clients, al-Qadir and Al-Shahiri, as noted above, have been transferred. We have argued that their cases are not mooted by the transfers, because of the collateral consequences doctrine, and clearly, their designation as "enemy combatants" triggers liberty interests and the law is clear on this. We only filed one DTA petition, with Al-Qadir, who is now in Algeria; nothing has been done with his DTA petition, which has been held in abeyance at the moment as he has been transferred, but the intent is to remove the enemy combatant stain through the DTA petition if possible, although as you know, the DTA has been held not to be an adquate habeas substitute in the Boumediene case.

Judge Hogan's order placed everyone transferred or "cleared for release" at the back of the line for release of classified habeas returns. We are still arguing about that, but the arguments are under seal; we have not conceded that point. Our arguments are especially compelling when the detainee was transferred to a hostile country. It is horrific to have to play the interests of our clients against each other with respect to arguing for the court's attention, but that's the position we are in. Of my own clients, as noted, two have been released, and a third, bin Mohammed, has been cleared for release.

I am ever the pollyanna, and notwithstanding this being my fourth year of this litigation, I am still hopeful that we will have habeas review for these men. I am not hopeful that it will occur during the remainder of this Administration, though I am hopeful that Boumediene will apply, notwithstanding that its tenets that the delay has already gone on too long will be honored by the lower courts (the only exception being Judge Urbina's decision in the Uighurs' case, which ordered an immediate release only to be stayed by the Circuit Court). I believe that the law and facts will ultimately work in favor of most of the detainees; there are only 250 left or so, and though their day in court will come far too late, it will come.

The Talking Dog: Anything more you can tell us about your clients' specific situations?

Buz Eisenberg: One of my clients suffers from a horrible disease that has only manifested itself at Guantanamo. It is pilagra, a Medieval malabsorption disorder, whereby the body can't absorb niacin. It manifests itself in a skin condition with skin flaking off and pustules and terrible itching. It's quite painful even to look at. We have tried to evaluate it with Physicians for Human Rights to get him some treatment, only three weeks ago I last saw him, and it has manifested again; we remain concerned with this and are trying to get him adequate medical care.

Another of my clients has serious psychological issues deteriorating by his confinement.

As to my 2 transferred clients, I haven't seen them since their transfer. I haven't seen al-Qadir since July. I haven't seen Al-Shahiri since his transafer to Saudi Arabia in 2006; none of the 116 Saudi released detainees are allowed to speak to their habeas counsel so we have to rely on anecdotal evidence from a closed kingdom.

As noted, all of my clients have had to deal with unthinkable abuse.

The Talking Dog: How has work on Guantanamo litigation
affected you professionally, including how it has affected the rest of
your law practice (and did the Cully Stimson led attack on habeas
lawyers have any specific effect), and how has it affected you
personally?

Buz Eisenberg: I am a teacher, who supplements my income with a law practice. Since I've been doing this, my teaching load has been reduced to 3/4, and my law practice has dried up to nothing. I do not regret this for one second. This is what the oath requires, and I am grateful for the opportunity to do it. At some points, it has caused heartbreak and disappointment to have been in the throes of our post-Constitutional era, under which the judicial branch has been all too compliant in helping to dismember the fundamental underpinnings of our democratic republic.

As we talk on the eve of the election [Barack Obama has been elected in the interim], I remain ever the pollyanna, hopeful that the rule of law, both domestic and international law, are about to become resurgent. If our system can weather this storm at this time, maybe the events of the last few years will strengthen it and some good will have come out of all this.

The Talking Dog: As of now, it looks like (my college
classmate) Barack Obama is going to be the next President. What do you
anticipate (if anything!) in an Obama Administration with respect to
GTMO issues (e.g. close GTMO, move a few detainees here for trial,
release the rest? Something else?) In the seemingly unlikely event
of a President McCain, where do you anticipate these issues going?

Buz Eisenberg: As to the simple question of "closing Guantanamo", that's just geography... yes, it's more convenient to fly to Leavenworth than to Cuba, but so what?

The Talking Dog: Though of course, as the case of the Uighurs shows, there might be some significant difference if the detainees are "admitted to the United States".... if they actually are, is there not?

Buz Eisenberg: To be sure, the judicial branch is grappling with that very question in the Qiemba (Uighurs) appeal; the government must show cause as to why the detainees were not released inside the United States, and the government moved to stay it, and doubtless there will be en banc review of that stay.

The reality remains that all we want-- all we have ever asked-- is that the detainees get a hearing. If they get a fair trial with due process, they will have had their day in court, come what may.

I'm sure that Obama's attorney general would say "we can't completely discount the CIA and military's conclusions that we are holding some bad guys", but I hope, certainly, that an Obama Justice Department stops the endless delay, and then we will see a difference in that area. Right now, 61 men have been cleared for release (59 actually as 2 have recently been transferred.) I don't see those numbers going up. I anticipate an Obama DOJ saying "let's try these cases, come what may."

As to McCain [who has been defeated since the telephone interview], he called Boumediene the worst case in the history of Supreme Court jurisprudence, and I'm sure that his Justice Department would have responded accordingly, and although I'm sure he wouldn't tolerate torture (other than the endless delay and uncertainty itself, which is itself a form of torture), he would not do much differently from the Bush Administration.

The Talking Dog: From the context of a criminal justice
professor, or a legal practitioner, or any other way you'd like to
talk about it, how similar, or different, is the Guantanamo litigation
with respect to the rest of your experience, and why? Did you have an
expectation of this when you got into it, and how did you get into
it?

Buz Eisenberg: I live in rural Western Massachusetts. In my 29 years of litigation practice, I have been before judges who see the world differently from I do, or encountered probation or police officers offering less leniency than I think they should be at times. But everybody respects the law (with few exceptions). I could be a little naiive, everyone tries to do the right things under a Constitutional framework. Indeed, the job descriptions require following a civilized society's protocols.

To see the Department of Justice being so callous to principles that they took an oath to protect and defend, led by the attorney general himself in this regard, is just disheartening. We knew this was the case when we got involved in the GTMO litigation of course. I fancied myself as bringing the Constitution to Guantanamo, when I called the Center for Constitutional Rights and asked to be assigned a client. Some of our basic assumptions don't seem to be relevant in these people's radar screens, and this is extremely chilling.

We have had what amounts to a legal coup d'etat-- we had always thought that the people would never allow anything like this, but the guys with the guns are operating off of different principles.

I have been an ACLU cooperating attorney for 26 years. Relatively small complaints get funneled to me in my county. I had a naiivite about a police state and whether it could be imposed here, in our representative democracy. My eyes have been opened, as we have slid into it.

I am so proud of my colleagues in this, and in human rights movements here and abroad, who have taken on this work. As someone who teaches constitutional law, it has been a privilege to have a chance to fight and work for something meaningful, though on the whole, it has been chilling.

The Talking Dog: Can you comment on media coverage-- local,
national, international-- on these issues?

Buz Eisenberg: Before I was involved in the Guantanamo litigation myself, I was far more likely to condemn the media for their lack of interest, (and I still do to some extent.) The media always seems more focused on celebrity or sensationalist angles, be it Lacey Peterson or Anna Nicole's baby or O.J.... those are always likely to garner more media interest.

Some journalists, notably Carol Rosenberg of the Miami Herald, have been remarkably strong in their coverage of Guantanamo. The New York Times, for example, in a recent article by William Glaberson and Margot Williams, discussed Guantanamo and the challenge faced by the next President, and its coverage has also been strong. But these are exceptions.

We have to acknowledge that the media makes coverage decisions based on what it thinks people want to read; even quite progressive people have a limited tolerance for reading the gory details about Guantanamo. And given all the other news crying out for attention, one sees the limits of coverage of these issues.

Still and all, since I began working on the Guantanamo litigation, I have paid more attention. Eric Freedman and Candace Gorman and Sabin Willet often float news stories to each other, sometimes on a daily basis, for the last several years, and the Arab news and European media outlets have certainly covered this; there is a ton of publicity about this out there in the world media, even if not regularly found in the Boston Globe or my Sunday New York Times. I'm not talking about the MSNBCs, but certainly, the puff commercial media has not focused on this, though it creates a vicious cycle of creating interest in the celebrity and sensationalist matter and then feeding that interest.

The Talking Dog: Can you comment on the Al-Bahlul show trial and do you have a comment on the recent Al-Bahlul show trial and show conviction and life sentence? Do you have any broader comment on whether you ever thought that you would see the U.S. government stage anything quite like this?

Buz Eisenberg: Well, no. Certainly none of us ever expected to see the American government engage in anything like this. It leaves you feeling deceived, that your system, that was always rule-based, could devolve to this. I consider myself a highly spiritual person (if not a religious one). When your system of justice is subverted and fails, it us hurtful. My adult life has been devoted to this system, but it has already failed us all.

The Talking Dog: Is there anything else I should have asked
you but didn't, or anything else that my readers need to know about
this subject?

Buz Eisenberg: I have been saying, since I heard my colleague John Holland of Denver refer to our time as "the post-Constitutional era", that I realized he is exactly right: we are in a post-Constitutional era. If this period only lasts the seven years it has so far, I'll be quite relieved.

But that is where we now reside. Yes, Boumediene put a chink in that, but it has not yet, at least, been implemented by the lower courts. My hope is that we can restore our nation to a Constitutional status that had been self-defining since the founding of the Republic, but which has gone off track. I believe Sabin Willet has said it as succinctly as can be said in his letter, below:

From: Willett, P. Sabin Sent: Saturday, October 25, 2008 5:14 AM To: 'Wolfe, Kristina (CIV)'; Warden, Andrew (CIV); Subar, Judry (CIV) Cc: Manning, Susan Baker Subject: Uighur cases

Dear Kristina, Andrew and Jud:

Our Uighur clients have now been at Guantanamo for about 6 1/2 years. After years of stalling and staying and appellate gamesmanship, you pleaded no contest -- they are not enemy combatants. You have never charged them with any crime. In October a federal judge said they must be freed. They were on freedom's doorstep. The plane was at Gitmo. The stateside Lutheran Refugee services and the Uighur families and the Tallahassee clergy were ready to receive them. You blocked their release by getting an emergency stay from the Court of Appeals. Then by extending the stay. Since then we have done everything we can to try to win that release again and we have failed. And you have positioned this shrewdly. You know it will take many months to get a decision. If we win you will ask for en banc review. And if we win that you will appeal for Supreme Court review. So you know and I know what is happening here. This won't be over in one month, or in six. It will be years.

And you know another thing. No other country is ever going to take them. Not ever. Not after some genius decided, in your overnight stay papers, for the first time ever, anywhere, to call these people "terrorists." That the charge is false, that you have now backed away from it in your brief, that doesn't matter. It will never happen now.

It was never going to happen anyway. State has been trying to resettle this for four years. China has blocked it everywhere. You know it will never happen. If you win your appeal these men will spend the rest of their lives as prisoners at Guantanamo.

So now I am on my way to Gitmo to tell them all of that on Monday.

And I asked for one simple thing of you. I said let me sit down with them together, as men, without them being chained to the floor. And the Defense Department said no.

So I said, let me meet them alone, as we always do. Let me meet them in the hut where we always meet. Station MPs outside that hut, as you always do. Just permit these men one shred of human dignity. Do not chain them to the floor.

And you said no.

Yesterday the court refused to intervene. But it doesn't end there. Because this isn't about courts or who wins a motion. This is really about just who in the hell you people are. What you see when you look in the mirror. Or who your clients are and what they see in the mirror. What kind of Americans treat innocent victims with this kind of reflexive, degrading cruelty? Americans don't treat criminals this way in a federal prison. Americans are not supposed to treat enemy prisoners of war this way under the service field manuals, or the Geneva Conventions, if anyone paid attention to the field manuals or the Geneva Conventions any more. And these people aren't criminals, and they aren't the enemy and you say the department of defense will not comply even with its own service field manuals, or with any basic human decency, and carry on like a bunch of small-minded, panicked little people. As an American, I don't understand that.

And that is what I am asking for you. I am asking you to request of the base commander that he look in the mirror. Tell him I will meet these men alone, one at a time, and I will sit in that hut, and he can station a whole platoon outside to make sure it is only one at a time, and I would like him to show these Uighurs the basic human respect of not having to be chained to the floor. That is my personal request of your client. As one American to another.

And if the base commander will not do that, not even that, then I would like him to meet me and look me in the eye and explain just what in the hell kind of American he is. Because I do not understand it. Whoever the narrow-chested bureaucrat may be who makes these legal decisions sitting in some political office in Washington , however small and un-American that execrable person may be, I am still willing to bet that the base commander is better than that.

I will be there Sunday night.

Thank you.

Sabin

The Talking Dog: We'll let that be the last word. I join all my readers in thanking Mr. Eisenberg for that insightful interview.

Readers interested in legal issues and related matters associated with the "war on terror" may also find talking dog blog interviews with attorneys 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 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, and with Joanne Mariner of Human Rights Watch to be of interest.

Comments

Big News

Posted by Kevin Hayden at November 20, 2008 3:00 PM