April 5, 2013, TD Blog Interview with Matt O'Hara
Matthew O'Hara is an attorney at the Chicago office of the law firm of Hinshaw & Culbertson. He represents one man currently detained at Guantanamo Bay, and previously represented two men who have been released. On April 2, 2013, I had the privilege of interviewing Mr. O'Hara by telephone; what follows are my interview notes, as corrected by Mr. O'Hara.
The Talking Dog: Where were you on Sept. 11, 2001?
Matt O'Hara: I was in my office in downtown Chicago. The day before, I had started an evidentiary hearing in Criminal Court in Cook County for a client who was on death row. We had filed a petition to vacate his convictions on the basis of newly discovered evidence. That hearing started on September 10th, was recessed on the 11th and I was in my office preparing for a hearing to continue the next day. Because I was in trial mode, at first I did my best to ignore the chatter in the office early in the morning about a plane crashing into a building in New York. A couple of hours later, everyone left downtown. One of our paralegals gave me a ride home. I arrived home just in time to turn on the TV and watch one of the twin towers fall. That afternoon, my wife and I picked up our kids from school and talked with them about what happened. Then I went and pounded out about 25 miles on my bike just to think. The weather was as beautiful in Chicago that day as it was in New York, and it was very quiet with no planes in the sky.
The Talking Dog: Please identify your present GTMO-detained client by name, nationality, and age.
Matt O'Hara: My client is Umar Abdulayev, a 34 year old from Tajikhstan. A profile of Umar and the circumstances of his detention in Pakistan can be found here. Two other clients have previously been released.
The Talking Dog: Please tell me the status of his habeas litigation.
Matt O'Hara: We have voluntarily dismissed his habeas corpus petition. Umar is cleared for transfer. His habeas petition had previously been stayed over our objection when he was first "cleared." We had appealed that stay to the D.C. Circuit, and the Circuit agreed to remand the matter to the District Court for an "indicative ruling". the stay was then lifted. But then, after a string of bad D.C. Circuit decisions came down, we decided it was no longer a level playing field and that we could not win his petition under those circumstances. Accordingly, we voluntarily dismissed the petition-- without prejudice-- as of a month ago.
The Talking Dog: Can you please tell me the last time you visited your client at Guantanamo, and can you describe the circumstances of your visit? If you could, can you contrast that visit with what you found at earlier visits, including the condition of your client(s), the restrictions on you as counsel and on your clients during your visit, the condition in which you found your clients, and anything else you believe relevant.
Matt O'Hara: I was there last in May of 2012, probably my twelfth trip there. In a sense, my client looked pretty good. He looked fit, he had lost some weight, and looked healthy. There were restrictions on counsel to be sure-- and they were more notable than when I first went to the base. The military has institutionalized violations of the protective order.
Compared to how things were earlier, a lawyer -- an officer of the court with a security clearance -- was given a certain amount of trust-- much more deference than compared to now. Now, as I said, there seems to be an effort to institutionalize violations of the protective order. Indeed, the base has built a whole new building for the purpose of "examining" papers and items brought down by attorneys-- not to search "for contraband" as the protective order allows-- but clearly reviewing legal papers for content, again, in violation of the protective order. It is fortunate that most of the legal business with our client has already been done, because now it's a Herculean task to get any meaningful documents into a meeting with your client. You can argue with the military at the gate to the camp if you want about how they are violating the protective order, but then you end up having flown to Cuba to argue with the sergeant of the guard and a military lawyer rather than talk with your client. It's ridiculous and offensive.
The Talking Dog: Can you tell me if your client is participating in the present hunger strike? Is there anything of relevance viz a viz detainees' grievances, or the military's treatment of the prisoners, or anything else of relevance that you can tell me about that situation, including, if possible, the current condition of your client, as far as you know?
Matt O'Hara: I don't know. The last time I spoke to him was February 20th. The strike had begun by then, but he did not say anything about it. He was in Camp 5, which had a smaller population at the time, although now most of the prisoners are in Camp 6.
The Talking Dog: Can you tell me, in light of the subject of the recent letter you signed on to directed to Secretary of Defense Chuck Hagel, if you have had contact with your client since that time (by phone, mail, etc.), whether you believe the government's recent (increasingly repressive) actions are a pretext by the government, for example, to cut off adverse publicity from GTMO, or perhaps to intercept communications between prisoner and counsel? Why do you think the government relented toward getting the flights reinstated?
Matt O'Hara: I do think that whatever the reason for stopping the flights as given was, that it violated some regulation (which was preposterous), commercial flights to GTMO have been operating for a long time, and there are not a lot of other options.
The military has been given a very tough job-- to run a prison full of men with great uncertainty about whether or not they'll ever get out. But, the military has also been extremely thin-skinned about any criticism of it. And so, they overreach, by, for example, trying to prevent such criticisms from happening. The cancellation of commercial flights was clearly retaliatory (for criticizing the military) and has, temporarily anyway, been rescinded. Nonetheless, it is getting ever harder than ever for lawyers to get to GTMO.
The Talking Dog: Can you comment on media coverage, in particular, of events at Guantanamo in calendar year 2013, and previously, and in particular, with respect to your own client and representation?
Matt O'Hara: The hunger strike has finally brought GTMO back to the attention of the media. This has been the effect of the men themselves resisting the injustice to which they are subjected, bringing their own situation into the spotlight, and that is a good thing.
Indeed, they are making a splash, as the detainees have actually gotten the media to pay attention to them. And so what? There's nothing wrong with that. How else can they resist the injustice against them, other than by the only means available to them? The courts have closed their doors to them; Congress declared that GTMO should be open forever, and the President has shrugged and blames Congress. All of the political class is resigned to keep it open. The men themselves have finally managed to get attention again in a way that our legal maneuvers in recent years haven't been able to make happen. It is their resistance, their insistence that they are still human beings and not animals, that has drawn the eyes of the world again.
The Talking Dog: We have reached the point where more men have died at Guantanamo (and invariably under suspicious circumstances) than have been "convicted" under the controversial "military commissions," and a number of those "convicted" have actually been released, while the majority held are actually "cleared for release." President Obama has been handily reelected, notwithstanding the utter failure of his "close Guantanamo within one year" promise and evident decision to continue the logical arc of policies he inherited from the Bush/Cheney Administration. And so, in light of all that, do you have any predictions for Guantanamo, "preventive detention" and related issues for, say, the remainder of Barack Obama's Presidency?
Matt O'Hara: I've told Umar that I'm getting out of the business of predicting things about Guantanamo, given how bad at it I've been. I believed early in the Obama Administration that GTMO was on its last legs. I've been utterly astounded in seeing a candidate Obama who was spot on in his critiques of the entire program, to see that same man do nothing and invest no political capital once he obtained office, and now, all three branches of government have signed on to GTMO, indefinite detention and the like as a permanent institution, rather than as an aberration.
In short, I'm not optimistic. There are some options as to how to break up the current status quo over time-- after all, things change. And the current hunger strike is an excellent example of that.
I hope the President devotes the political capital to right what is clearly a wrong. He can start by naming someone with the power and support of his office to close GTMO one step at a time. They can work on re-settling the men cleared for transfer-- incremental steps will be helpful. But I'm just not that optimistic about that, and I haven't been since May of 2009. Nonetheless, I still hope something will happen.
The Talking Dog: At over eleven and a half years since 9-11, with OBL dead, GTMO open over 11 years, the "high value detainees" commission trials dragging on, the war in Afghanistan (perhaps) over at the end of next year, do you see any way of getting the American public engaged in these issues, or any possible "public relations" angle that might help alleviate the seeming decision to simply close GTMO by having all of its occupants die there?
Matt O'Hara: It's hard to say. The hunger strike actually fits into that attention grabbing category. I do think that Americans of good will who don't follow the issue as closely as we do just don't realize what's going on. People think that it has already been closed, or that there were actual, meaningful habeas hearings, or else they are under a misperception about just who's being held and what's going on. If I had a great idea, I'd suggest it. The hunger strike, it seems, is the best example of an attention getting "public relations" move we have seen. Whatever it is, we need to get the public to focus on this issue.
The Talking Dog: Can you tell me how your Guantanamo representation has effected you personally, be it professionally, emotionally, spiritually, or any other way you'd like to answer?
Matt O'Hara: I volunteered to do this in the fall of 2006; I first thought about taking a case in the fall of 2005, but had a trial looming and put it off... but now it's been over six years since I'm doing this. Your question is a broad one.
The long term experience has made me much more skeptical of the United States's desire and willingness to do the right thing in questions like this. I had thought that GTMO was an aberration-- a rogue exception set up by a rogue administration, and our system would ultimately reject it in favor of the Constitution, human rights and the rule of law. I no longer believe that.
It's not that I was naïve to begin with-- I came in with plenty of skepticism and a real-world view about how the U.S exercises power-- but I was not prepared for what came after, especially about what has happened over the last four years.
The best exemplar of this is a client I had who has been re-settled. He was from Syria. He told us-- constantly-- that we couldn't help him-- that an American court would simply not help him, a Syrian. All we said about the rule of law, he said, had no application to his status. He said no judge would ever tell the president what to do about Guantanamo. Well, I hate to say it, but he was absolutely right as it turns out, at least in the long run as we now know it. Admittedly, he's been re-settled as the result of lawyers and human rights advocates and the workings of the political system, which created a window, and we helped him while that window was open-- but every critique I first heard from him in the spring of 2007, again I hate to say it, but he was right. Maybe in another six years, my initial impulse about the rule of law will be right. But that said, it has been disheartening and enlightening at the same time. Certainly, in the end, a negative commentary on our political and legal apparatus.
I have encountered men who, by virtue of cultural and language differences, as well as having been horribly traumatized by their experience, are coming from what amounts to a wholly different world from my own. It has been both challenging and rewarding to help two guys get out, as well as dealing with how hard it has been to get them re-settled in countries not their own,
In another sense, it has been a privilege and an honor to enable these men to speak and to have had a chance to be their link with the rest of the world. Uman knows only other prisoners and his lawyers. We are ensuring that his voice can be heard, and to make sure he's not forgotten. But for our work, these men would be forgotten-- and indeed, the military would clearly like them to be forgotten.
The Talking Dog: Is there anything else that you believe I should have asked but didn't, or that the public needs to know concerning these issues?
Matt O'Hara: I think the truth about GTMO has been written about and published many times in many places, but it just doesn't stick with the vast majority of the public. What the public should know has also been much written and spoken about. These men at GTMO suffer from being caricatured by politicians for political gain... Recall the propaganda of men with super-human strength and abilities who would chew through the hydraulic lines of airplanes or jump off tall buildings or squeeze into tiny spaces like rats and gnaw through steel, all to kill Americans... it's all a cruel joke by cynical politicians. It's pathetic and disgusting.
If people were actually forced to acknowledge the truth of the information out there-- they would demand accountability.
It was interesting seeing President Obama in Israel recently-- going "over the head" of Netanyahu to talk "directly to the people"-- he said, hey, I'm a politician myself-- and things change when people force politicians to take action.
He's right of course, and certainly knows what he's talking about on this, since he's been both a community organizer and President of the United States. Maybe he means "put pressure on me"... perhaps he means he doesn't have enough intestinal fortitude on his own to do the right thing. But, if enough people focused on just what is already known, they will demand change.
The Talking Dog: I join my readers in thanking Mr. O'Hara for that thought-provoking interview.
Readers interested in legal issues and related matters associated with the "war on terror" may also find talking dog blog interviews with former Guantanamo military commissions prosecutors Morris Davis and Darrel Vandeveld, with former Guantanamo combatant status review tribunal/"OARDEC" officer Stephen Abraham, with attorneys Carlos Warner, Matthew Melewski, Stewart "Buz" Eisenberg, Patricia Bronte, Kristine Huskey, Ellen Lubell, Ramzi Kassem, George Clarke, Buz Eisenberg, 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 former Guantanamo military guard Terry Holdbrooks, Jr., 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, with law professor Peter Honigsberg on various aspects of detention policy in the war on terror, with Joanne Mariner of Human Rights Watch, with Almerindo Ojeda of the Guantanamo Testimonials Project, with Karen Greenberg, author of The LeastWorst Place: Guantanamo's First 100 Days, with Charles Gittings of the Project to Enforce the Geneva Conventions, and with Laurel Fletcher, author of "The Guantanamo Effect" documenting the experience of Guantanamo detainees after their release, to be of interest.