July 4, 2013, TD Blog Interview with David Marshall
David Marshall is an attorney in Seattle, Washington, where his practice focuses on defense of those accused of child abuse. He represents a Syrian national detained at Guantanamo Bay, Cuba. On July 2, 2013, I had the privilege of interviewing Mr. Marshall by telephone. My interview notes, as corrected by Mr. Marshall, are below.
The Talking Dog: Where were you on Sept. 11, 2001, and to the extent you can answer, please tell me where your GTMO-detained client or clients were?
David Marshall: I was among the last people in America to find out! I first heard something peculiar when I was riding a bus to work. A couple of women on the bus were talking to each other, and one said "and that's when they closed all the airports." I thought, "that can't be right..." I got to work, and walked past a conference room where people were watching t.v.-- by that point, both towers had fallen down. I realized this was not going to be just another day. For whatever reason, even though I was in a sky-scraper, I don't recall even going home from work early.
The Talking Dog: Please identify your GTMO-detained client by name and nationality. To the extent you can, please tell me something about him, such as age, family status, personality, circumstances of capture, or anything else you believe of relevance.
David Marshall: My client is Syrian, and, although Arabic transliteration is not always perfect, I spell his name Ahmed Adnan Ajam. He grew up in Aleppo, Syria. His family was well to do. His father ran a textile factory (which was a business he apparently married into!) Ahmed was trained as an apprentice jeweler and goldsmith. When he was in his early twenties, a friend of his died in an automobile accident. This caused Ahmed to think about eternity. The free life he lived, he felt, was dissolute-- he wanted to get right with God and set about becoming more serious about Islam. He was widely read (as he still is), and he found about the society in Afghanistan that took Islam very seriously. He wanted to become a more devout individual, so he traveled to Afghanistan. He lived in Kabul for eleven months or so, and he did some charitable work with an organization that distributed food there, and he played soccer and volleyball and took walks around the city.
When the war broke out, he got word that the Northern Alliance was going to take the city, and it was planning on killing all of the Arabs. As he was an Arab, he left. He was seized while entering into Pakistan, and he was been in captivity since late 2001 or early 2002. He bears the designation "ISN 326." He is now in his mid 30's.
The Talking Dog Please tell me the status of his habeas litigation to the extent you can; if you can identify who the judge involved is, and please tell me about the recent motion you brought challenging the restrictions on transferring prisoners.
David Marshall: Ahmed's habeas case is pending before Chief Judge Royce Lamberth of the U.S. District Court in Washington D.C. No habeas hearing is scheduled.
I have just filed a motion challenging the restrictions on the transfer of prisoners from Guantanamo imposed by the past three annual National Defense Authorization Acts. My contention is that this is an unconstitutional encroachment on the President's commander in chief powers. The President decides when to exert force (in an authorized conflict) and when to release or relax that force. Detention is a form of force. My client denies that he is an “enemy belligerent," but even if he were, the President would have the power to release him without Congressional restriction.
Ahmed has been cleared for release by this government-- the Obama Administration’s inter-agency task force. Once the Executive Branch decided to release him, Congress had no right to interfere. By analogy, when President Bush decided to attack Fallujah, Congress could not interfere in his doing so, nor could they interfere with his later decision to withdraw from Fallujah by compelling him first to issue a certification that it was safe to do so.
The Bingham firm in Boston and New York has provided great assistance to me with this motion, but I am the sole signatory on the motion, and it is only on behalf of my client.
The Talking Dog Of course, you are asking for his outright release, but he can't go home to Aleppo, can he? Are you contending that Congress can't restrict his release into the United States?
David Marshall: It has been recognized by our government that the Syrians (of whom there are now about seven left at GTMO) can't be returned to Syria. The Assad regime would treat GTMO detainees very harshly.
The motion I recently filed does not challenge Congress's prohibition on admitting detainees into the United States. For reasons you can imagine, Ahmed does not care to live here; it has not been “the home of the free” for him. Our goal is for the Obama Administration to transfer him to a third country to live in peace and freedom there.
The Talking Dog: Can you please tell me the last time you visited your client or clients at Guantanamo?
David Marshall: I have not visited my client in 2013 (since the hunger strike and surrounding events have transpired). I'm not sure I would go at this point. Since my client regards the genital searches that are now imposed as a condition of visiting counsel as so extremely offensive to him, he might not be willing to meet me if I did go. I note that he recently didn't come to the phone when I called-- which I suspect is connected to something he said in his letter to me of May 17th, where he reported consternation that other prisoners had to be searched just to take phone calls from their attorney.
The Talking Dog Can you tell me if your client is participating in the present hunger strike?
David Marshall: In his 5/17 letter he wrote that he had ceased the hunger strike himself-- he could just not take the Ensure that he was being forced to consume. According to his letter, he has been placed in isolation, is not allowed exercise, and has intolerable noise inflicted on him.
The Talking Dog: Can you tell me, if you believe the recent events of escalating tension culminating in the hunger strike are the actions of the local command structure (however misguided), or perhaps reflect broader, high level decisions, for whatever reason?
David Marshall: I have no specific knowledge about this-- you know as much as I from reading newspaper accounts. I will say this seems to be a crazy policy that has precipitated a crisis that may ultimately redound to the benefit of the prisoners. Frankly, I can't see the Obama administration being so clever that they induced extreme actions from inmates knowing it would create the kind of political pressure that would culminate in closing the detention facility.
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 clients and representation?
David Marshall: It certainly appears that there has been a whole lot more media coverage this year because of the hunger strike. If it was planned as a means to get attention, it has been extremely successful.
The Talking Dog: Do you have any predictions for Guantanamo, preventive detention, and related issues for, say, the remainder of Barack Obama's Presidency?
David Marshall: I have no predictions. In late 2008 and early 2009, we all thought "thank goodness this will soon end" because of the election of President Obama. That experience has cured me of making predictions.
The Talking Dog: How did you become involved in representing a detainee, and 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?
David Marshall: I became involved when the National Association of Criminal Defense Lawyers sent an e-mail in the summer of 2005 asking if there was interest in representing detainees. I expressed interest. Then a year went by, and in the summer of 2006, another e-mail went out saying "we're serious now", and this time noting that, unlike other pro bono cases, there was not only no compensation for the time to be expended, but no reimbursement for expenses which were likely to be substantial. I talked to my wife, and she agreed that this was important for me to do, and I undertook it. After a lengthy time to get my security clearance, by February of 2007 I was cleared to be Ajam's representative.
That is how I became involved; now I should tell you why. I'm a little older than you. I grew up at the height of the Cold War in the 50's and 60's. I learned that in the USSR, people were imprisoned indefinitely without trial. I was struck by how awful that was. I was glad I didn't live in a country that did that. Early in the last decade I realized I now do live in a country where that can happen. And so, in the interest of helping to get back to that country where that kind of thing cannot happen, I undertook this representation.
One thing that has surprised me is the level of support I have gotten from other people. I have asked for donations to help me cover the expenses of representation. I have been stunned by how many people responded and how much they donated (particularly relative to the means of the donors). I see there are many people who, like me, want to get that "other America" back-- the country that doesn't imprison people indefinitely without trial. I have been deeply touched by their generosity.
The Talking Dog: I join all of my readers in thanking Mr. Marshall for that compelling 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 Jan Kitchel, Eric Lewis, Cori Crider, Michael Mone, Matt O'Hara, 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 former military interrogator Matthew Alexander, 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.