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The Talking Dog

"Sure, the dog can talk…but does it say anything interesting?"

He ain't The Man's best friend

February 21, 2015, TD Blog Interview with Joseph Hickman

Joseph Hickman spent most of his life in the military, first as a marine, then as a soldier in both the army and the National Guard. He has deployed on several military operations throughout the world, sometimes attached to foreign militaries. The recipient of more than twenty commendations and awards, Hickman was awarded the Army Achievement Medal and the Army Commendation Medal while he was stationed with the 629th Military Intelligence Battalion in Guantánamo Bay.He is currently working as an independent researcher and Senior Research Fellow at Seton Hall Law School’s Center for Policy and Research. On the evening of June 9, 2006, when the world was told that three Guantanamo detainees had simultaneously committed suicide by hanging themselves in their cells, then Sergeant Joseph Hickman was serving as sergeant of the guard at Camp America. He is the author of "Murder at Camp Delta: A Staff Sergeant's Pursuit of the Truth About Guantanamo Bay" On February 19, 2015, I had the privilege of interviewing Joseph Hickman by telephone. What follows are my interview notes, as corrected by Mr. Hickman.

The Talking Dog: My traditional first question is "where were you on September 11th." We know from your book that on September 11, 2001, you were working as a correction officer in Maryland for Baltimore and Anne Arundel Counties, but you had previously served in the military, and as a result of the September 11th attacks, you believed it was your duty to rejoin the military and you joined the Maryland National Guard, which eventually activated and deployed you to Guantanamo Bay, Cuba. In your case, my first question will be two part: (1) what specifically were you doing at the time of the attacks, and what went through your mind at that moment and shortly thereafter, and (2) reminiscent of the scene in The Matrix involving two capsules, one of which would support happy delusion and the other would show unpleasant reality, do you ever wish that you had never been deployed to Guantanamo and learned the unfortunate reality of what the United States intelligence community and military were up to there?

Joseph Hickman: On the morning of September 11th, I was transporting twelve prisoners from a jail in Anne Arundel County (MD) to a commissioner's office in the county. In the courthouse, we saw an F-16 flying overhead, very low... the courthouse is a 30-minute drive from the Pentagon. Once in the courthouse, we saw a black and white t.v. in the commissioner's office. We saw the towers on fire. People in the hall could see the television. It was surreal: me and my partner, and the prisoners, all watched the t.v. screen together.

As to the Guantanamo mission, in hindsight, I believed in the mission at the time, and ultimately, I am glad I saw what I did so that I could report it to the outside world.

The Talking Dog: Your book describes aspects of training at Fort Lewis, in Washington State, that had, unfortunately, a racial aspect (your unit included mostly people of color, and received significantly less favorable treatment than other units), and you also described the limited utility of your training. In an interview I conducted in 2009 with a GTMO guard named Terry Holdbrooks, Jr., we had the following exchange concerning his pre-deployment training:

The Talking Dog : ... Before deploying to GTMO, regardless of "cultural or religious training" (for which, I understand the answer was "none") did you have any specific prison guard training (under any applicable Army Manual, Geneva Conventions, anything like that?) Can you describe any training and/or indoctrination (such as what you have described as "propaganda films") that you did receive? Can you comment on the overall "professionalism" of your fellow guards, and tell me why you come to this assessment? Were they generally from military police backgrounds?

Terry Holdbrooks : Well, we were given an introduction to detention tactics for a week or two in the course of training, but I did not find it particularly meaningful, or particularly realistic compared to what we eventually encountered. This was conducted at Fort Dix, New Jersey just before we left for GTMO. This was a crash course given to us by 5 random sergeants of the "31c mos", meaning, correctional officers. It was nothing like what we were going into, and in no way a real preparation for the experience ahead.

We also did see quite a number of what I would call propaganda films: films of towers falling, pictures of bin Laden, people crying and flags flying, and then random presumably Muslim individuals, all with heavy metal music playing, usually in three minute song length segments. Before going to Guantanamo (and even at Guantanamo) we saw a lot of these things, I just thought that this is how the Army stoked up people during training. Drowning Pool's Let the Bodies hit the Floor was a common song for this. It is simple to see how it is propaganda and programming. We also took a trip to "Ground Zero" just before the day we flew out, this was to really nail in the idea that "these people are bad" and to get us riled and ready for hatred. I remember reading a quote someone had left on the wall there, "this is the worst tragedy to happen to mankind". It really made me sad to think our educational system is so lacking, that this was the worst someone could think of to mankind . Never mind the Holocaust, Josef Stalin, the Crusades, the Armenian Genocide, they don’t count, they're not American-related, I suppose.

Also part of the training was an actual mock detention facility, which featured 2 or 3 cell blocks, and a larger area for recreation, a mess hall and so forth, we practiced guarding other guards... but frankly, the anger and animosity that we were supposed to encounter just wasn't there in this exercise (perhaps had we been trained in a real prison, like Leavenworth, it might have been more realistic).

As to "professionalism"... that was just not a word I would use to describe guards at Guantanamo, other than when VIPs such as my home state's esteemed Senior Senator John McCain or generals, diplomats or other dignitaries showed up, when suddenly, everything would appear to be in perfect order. Otherwise, most guards were just eager to leave, and new guards were disappointed to be there. (While the guards were less than professional, the medical staffs, usually Navy and Marine Corpsmen were quite professional... patient care was patient care, whether the patient was an American or an accused terrorist.)

As to the backgrounds of the guards, almost all were military police, and not many of them had corrections background. We had a week of corrections training in military police school, but that is not enough to certify you to work in a facility as far as I am concerned.

--- Can you comment on Mr. Holdbrooks' description of his pre-deployment training, and compare it to your own, and your understanding of the training received by the naval personnel responsible for guarding of the individual cell blocks, and do you have any broader comments on the issues of training of guards (particularly in, say, compliance with Geneva Conventions and Army Field Manuals and the like), and your observations, and do you have any broader comment on issues of racism (i.e., broader than the limited context of the treatment of your own unit)?

Joseph Hickman: The training we received at Fort Lewis was terrible. There were problems with the command, but at least the soldiers were trying their best to be professionals. The command was disorganized at best-- they did not set up for real training for the mission we would actually have- they kept saying "read the SOP [standard operating procedure]". We had something like one hour of "cultural awareness training", in which were were told not to call the detainees "Haji's" or "Sand N*ggers".. that was the gist of "cultural awareness training."

We were also told that the detainees would kill us all, if they could. I was 41 when I was training and had some experience with hyperbole... but some of the soldiers believed this.

As to the matter of racism, I must say this was the first time I saw it in my time in the United States military. I was quite sensitive to it, as other than myself, I was in an all-Black squad. But this was still a surprise to me-- after all, the United States military was one of the first institutions in this country to ban segregation. Nonetheless, it happened, and it was disgusting.

The Talking Dog: Moving right along on the subject of training which I think ties in to "SOPs"-- or standard operating procedures-- which members of the military are trained to follow (and apparent deviations from SOPs seem to be endemic to the story of the three deaths at Guantanamo in June 2006 discussed in Murder at Camp Delta)-- let me ask for your comment on this observation made by former Army linguist Erik Saar when I interviewed him in August 2006:

The Talking Dog: Let me ask you about your training in the Army Field Manual 34-52 on interrogations, which I understand contains limitations consistent with the Geneva Conventions... Erik Saar: Let me stop you there, because this is a critical point that isn't discussed much. I was NEVER trained in the Army Field Manual on interrogations. Indeed, no Army linguists as far as I know were trained in interrogations. Linguists were ordered NOT to question what they saw. Military interrogators and linguists were supposed to "balance" each other. Of course, linguists had a conflict. This was especially so among civilian contractors, who would frequently tell interrogators that what they were doing was outside the custom and norm of the culture of the detainee, and hence, likely to be counter-productive. Training is a critical factor-- training is everything in the service; we do nothing unless we are trained to do it first. We were, of course, lectured as I described in the book that we had "detainees" who were not POWs because they didn't wear uniforms and other legal explanations given and as such interrogators didn't have to comply with Geneva Conventions. BUT-- interrogators had been trained one way-- don't EVER violate the Geneva Conventions. Indeed, I recall one incident where an interrogation trainee made a joke during interrogation school about "now we go to the electric shock"-- he was almost thrown out of interrogation school just for joking like that.

The drill was all Geneva all the time, BECAUSE INTERROGATION IS AND CAN BE MOST EFFECTIVE WITHIN THOSE LIMITS. At Guantanamo, of course, the constraints were "relaxed" by various orders, but the interrogators had never been trained in the new methods.

When I had the Power Point presentation telling us Geneva didn't have to apply, I left, not particularly outraged, but kind of confused. My thinking was a process-- when I left that meeting, my thought was-- this is contrary to Army practice-- we are not TRAINED for this... how can we use techniques that we are NOT TRAINED IN and how do we know this is effective?... Its not just the interrogation methods themselves that are contrary to every aspect of Army practice-- but using improvised, untested techniques that interrogators were not trained in, regardless of what they were-- is contrary to procedure as we were drilled.

---- OK... I realize that you were involved in the detention aspect rather than interrogations, of course, but my question does concern a "cognitive dissonance" of training to comply with Geneva conventions and military norms in general and suddenly being told "the gloves are off" when it comes to Guantanamo and its prisoners-- just as you noted that you had complete control of the perimeter of Camp America (the area incorporating Camp Delta and most of the "official" detention facilities at Guantanamo) except for "the pizza van", or paddy wagon moving actual detainees, perhaps to interrogation, and "the ice man," or director of interrogations, whom you were not permitted to search at all... my question is... wait for it... how did you and your men deal with the cognitive dissonance of it all?

Joseph Hickman: The explanation from the command at Guantanamo was that the soldiers were repeatedly told "just follow the SOPs for Guantanamo -- these are detainees not subject to the Geneva Conventions, they are not prisoners of war." Now, I was there serving as a sergeant-- and I was well aware that the Geneva Conventions applied to non-uniformed freedom fighters. The French Resistance was treated as POWs during World War II, despite its members bombing German facilities and being considered "terrorists" by the Germans.

I personally questioned why these people held at GTMO would fall under a category any different from French Resistance fighters.

Nonetheless, most soldiers did what they were told... it certainly makes your life easier if you do. I will say I certainly questioned the SOPs, and with respect to the particular gaps in security that were imposed on us (the "pizza van" and the "Iceman")... all of us questioned those gaps.

The Talking Dog: I know in the case of others I've interviewed, particularly in the interrogation area (interrogator Matthew Alexander and linguist Saar come to mind), their books had to be vetted by the military and the intelligence services before publication (presumably to ensure that no "national security secrets" were disclosed; in particular, others have had to use the term "Other Government Agency" for what I call "the Company" and you call "the CIA..." ); was your book vetted as well?

Joseph Hickman: My book was not submitted for government vetting. I note that it is based on research including over 125,000 publicly available government documents from official government sources. While the book did go through a lengthy and extensive legal review process with my publisher Simon & Schuster, it was not vetted by the government.

The Talking Dog: I understand you were the first soldier who gave the order to fire on GTMO detainees, in the course of responding to a prisoner riot at Camp 4, the supposed "compliant prisoner" camp, where, in responding to prisoners attacking your squad members, some of the prisoners had make shift weapons and you directed your men to fire "rubber bullets" or more accurately plastic pellets (called muppets?) at range so close it may have been lethal; your book indicates that you were strongly pressured to write a report that fudged the range of the discharge, and that you left out a key detail or two... As a career military man and/or corrections officer, how surprised were you about that, and if you could, please tell me what your general understanding is of the purpose of "after action reports" and why fudging them (or worse) is a problem? Also, please tell me about how these events (you can summarize them if you want) primed you for the "main event" of the night of June 9, 2006?

Joseph Hickman: Being pressured to write up a misleading report disturbed the hell out of me. An after-action report is supposed to describe what went right, what went wrong, and most importantly, how we can correct it later on. In my case, I was told to keep re-writing my report, for hours and hours after the incident. I felt like I was being interrogated. I eventually gave in, and felt horrible about it. I was up for over 24 hours, and was told that my report was going to Donald Rumsfeld personally, and that it was up to me to protect myself, my men, and to protect the command.

As far as the aftermath of the incident, the command came down really hard on the detainees after the riot in camps 1,2,3 and 4. Orders came down through the "DIMS" (Detainee Information Management System) not to tolerate any uncooperative detainees-- they got two strikes, and on any third strike (that would be, refusing a direct instruction), they would be "IRFed" (subject to intervention of an "Immediate Reaction Force"). The QRF ("quick reaction force") I was in charge of was actually moved outside the camp boundaries (it had been in the medical clinic), because detainees were protesting the new rules with a hunger strike, and they needed to make room for force-feeding in the medical clinic.

The Talking Dog: Please tell me about your discovery of "Camp No," and in particular your colleague's exclaiming: "we just found our Auschwitz.? Do you have any sense of perspective on this discovery, given that the events of June 9, 2004 took place almost two years to the day after the discovery of the events at Abu Ghraib in Iraq, and the situations were seemingly almost a perfect parallel (i.e., military run detention facility with CIA "black site" operating right in its midst and out of the military's control, occasionally "going a little too far" resulting in abuse and death)?

Joseph Hickman: It strikes me this way: Guantanamo was set up not because it was going to hold "the worst of the worst"-- but to test out interrogation techniques on a group of prisoners isolated from the rest of the world, and to see what worked, and what didn't work, and then send those techniques all over the world, including to places like Abu Ghraib.

Indeed, General Geoffrey Miller publicly stated in August of 2003, after a visit to Iraq and Abu Ghraib, that we would like to "Gitmo-ize" Abu Ghraib"... and then a few months later, the disturbing pictures came out.

At the time I first found Camp No, I did not know it was a CIA facility. No one knew it was a CIA facility.

When the Harper's piece came out, I was criticized and my critics said "there was no CIA site at GTMO."

But, in 2013, the A.P. published a piece reporting that "Camp NO" was a CIA black site after all, code named "Penny Lane." The government keeps going back and forth on this... even in the Senate Torture Report that came out, government officials conceded that Camp No was a CIA black site, but they said it was a "good black site," with fewer casualties than other black sites!

And amazingly, people buy these things.

The Talking Dog: Turning to the night of June 9, 2006, when the world was told that three detainees ( two Saudi detainees identified as Manei al-Otaibi and Yasser al-Zahrani and one Yemeni identified as Ahmad Abdullah) had committed suicide in their cells by simultaneously hanging themselves, despite constant monitoring of every aspect of their lives, we know from your book that you were Sergeant of the Guard that night , more or less in charge of "the perimeter" of Camp America, with a low-flying bird's eye view of quite a bit... I know it's in the book, but why don't you walk us through that night and tell us what you did and did not see. Follow up to that, given the talk given to you and your men by Colonel Bumgarner the next morning, to wit, that the three men choked to death (presumably on fabric), but that news stories would indicate hanging (and the wonderfully Orwellian term "act of asymmetrical warfare" used by Admiral Harry Harris in briefing the press) and you were sworn to utmost secrecy... please tell us specifically what's wrong with "the official story" and why even the most credulous member of the press should have spotted that right then and there. Bonus follow-ups... (1) the NCIS, or Naval Criminal Investigative Service, which also investigated the events of June 9th, unsurprisingly (to me) endorsed the "official story"... without, for example, interviewing you or your men... were you surprised by this, and why? and (2) you obviously didn't see anyone stuffing rags down anyone's throat and I understand you didn't see the bodies of detainees... so other than being certain that "the official story" is a load of transparent hogwash, how do you know that what probably happened (detainees choking to death on fabric stuffed down their throats) constituted "murder" [title of your book] as opposed to, say, "negligent homicide" from an "enhanced interrogation" session getting a little out of hand, or maybe even an actual suicide from lax supervision (for example, a detainee named Juma al-Dossari tried to hang himself on a bathroom break during a meeting with his lawyer Joshua Colangelo-Bryan as described in my interview here)?

Joseph Hickman: The first thing that matters is that the NCIS immediately asserted that I was "only" a perimeter guard and not in a position to see what happened. That was, of course, a half truth. Half of my duties were inside Camp Delta. I was in a position to see what happened from inside the camp, and this "perimeter guard" characterization irritates me.

I was on duty. I was a reconnaissance soldier, which means you are trained in observation and what you see is important. That night I visited a number of positions. I was in charge of the solders at all of the towers inside Camp Delta. Tower 1 was only thirty-five feet from the medical clinic... it is also less than 50 yards from the walkway in Camp One, with a clear view of it. I was also next to the entrance to Camp Delta. In the tower, I saw the white paddy wagon (which, of course, could pass without inspection or having to sign in)... I saw it back up to Camp One, and I saw two guards get out and put a detainee in the vehicle. And then I saw the van make a right, and then a left-- leaving Camp America. And then I saw the van return around twenty minutes later, and repeat the process with a second detainee.

Now this was a Friday night-- there were no commissions scheduled, and there wasn't a different camp outside the perimeter to take them to... but where they going?

And then the van returned a third time. This time, I went to ACP [access control point] Roosevelt, the exit from Camp America, and watched. If the van went right, it would be going to the main part of the Guantanamo base-- where the McDonalds, the PX and other facilities were. But if it went left, that led only to the beach (for personnel's recreation) or to Camp No-- the road led nowhere else. And the van went left. I knew it wasn't taking detainees to the beach. This made me curious, as my only conclusion was that the van was going to Camp No. And so, I continued to do my duties of making rounds of my men's positions.

At 11:30 pm that night, the van returned to Camp Delta. I was back in Tower 1. The van backed up to the medical clinic. I was back in Tower 1, with a clear view of the medical clinic. The van backed up to the medical clinic-- my view was obstructed by the van's doors-- but I watched the guards take stretchers into the clinic. Twenty to thirty minutes later, the lights in the camp all went on, and all hell seemed to be breaking loose.

I got down from the tower, and found a Navy corpsman (or medic) who I knew, and she told me that three detainees had stuffed rags down their throats and killed themselves. I knew something horrible was happening.

I asked the guards under my command for their observations. Three guards were stationed 20 feet from the medical clinic-- and they reported that no detainees had come from Camp One-- the only movement of detainees had been the paddy wagon. In fact, none of the guards in my command-- who were watching the camp all night-- saw anyone transported from any camp-- other than the paddy wagon.

The next morning, of course, Col. Bumgarner gave us his talk about what "actually happened"-- the detainees choked to death on rags-- and what we would see in the news-- that they simultaneously hanged themselves and were found that way in their cells... and we were ordered not to talk about it. Nonetheless, I was sure we would be asked about what we observed, by someone. Again, I asked the tower guards in camp 1-- was anyone transported? The answer was consistent-- no. And so, if they didn't see it, it didn't happen. And they did not see detainees taken from Camp 1 (where they supposedly hanged themselves in their cells) to the medical clinic. It did not happen.

And the NCIS did not contact me, or my men-- ever.

At the time, I tried to put this behind me. But some details stick with you: it is just so hard to kill yourself at Guantanamo. I am aware of the suicide attempt during an attorney visit you described... that was a gap in security that was solved-- and even the detainee in that situation still failed in his attempt. It's just so hard to do it.

But the biggest thing is what just couldn't add up: three men simultaneously (in non-contiguous cells) tying their hands together, putting masks on, forming nooses, shoving rags down their throat, and then managing to hang themselves simultaneously while being watched by soldiers every three minutes.

I should also note than I came forward to speak to the Justice Department-- it was not just me. Seven guards came forward to tell them what we observed.

And finally, I can tell you that the way I ended the book-- noting that I can't name names, but nonetheless, from all I know, I consider what happened on June 9, 2006 "murder" (notwithstanding that a clever lawyer might characterize it as something else)... I put out the evidence I found-- this is what I believe, but the reader can decide. I still think it was murder.

The Talking Dog: Within a few days of June 9, 2006, I interviewed former British detainee Shafiq Rasul who gave me the following statement:

I think the American Government needs to stop using phrases like "warfare against the U.S", and "Jihadi Code of conduct" for these recent deaths and stop blaming the detainees for what is happening in Guantanamo and start blaming themselves for what is happening . I mean it is very sad and shocking that these deaths have happened for me personally because we were all like family to each other and we would do anything to help each other in any way but knowing that these guys are never going to get any kind of justice and never be able to see their families is hard and hurts a lot. Inevitably, it was going to happen because of the despair that they were going through. People have to understand that when we say that these people have no rights that we mean that they do not have any rights at all, they are being treated much, much worse than if they had actually been convicted of a crime. They have now been incarcerated for four and half years in Guantanamo with no form of justice. They are in constant fear, worry and despair. For some reason the American Government thinks that these people have no values and are not human, and that this situation that they are in is not enough punishment for them. We in the west believe in democracy and in justice, so I believe it is about time that these people got some form of justice.

In particular, I'd like you to comment on Rasul's statement that " these people have no rights that we mean that they do not have any rights at all, they are being treated much, much worse than if they had actually been convicted of a crime." Given your perspective as both a member of the military and a stateside corrections officer, can you comment on Rasul's characterization?

Joseph Hickman: Rasul's comments are dead on. Animals in zoos get far better treatment than the detainees got.

The Talking Dog: Let me ask you about a discovery by another British man, U.K. resident Shaker Aamer (last British man at GTMO), code named "the professor" and one of the 2006 hunger strikers, who, in statements given to his lawyers, suggested that he was pulled out of his cell and had fabric shoved down his throat and thought he would be killed that very night. Now, I take it you are absolutely clear in your observations (as correlated by reports of the men in your command from their positions) that only three detainees that were observed being removed from their cells (and Camp Delta) that evening, and three dying or dead detainees returned to the medical clinic... so I'm trying to get a time and space correlation with when and where Aamer might have received this particular treatment... did you ever reach any conclusions about that? (Bonus follow-up... what in particular was the reaction of the camp commanders to hunger strikes, and why?)

Joseph Hickman: I can tell you that I believe Aamer's statement. He was in Camp 5, a "less-compliant" camp, in isolation most of the year (a camp not within my observation that night), so Aamer, from his isolation, would not have known what else happened on June 9th, and yet he described treatment that same night very similar to my understanding of what killed the three detainees.(He could keep track of time as daylight was discernible in the Camp 5 cells).

As far as hunger strikes, the medical doctors assigned to Guantanamo-- not the BSCTs responsible for interrogations, but the regular doctors, were good doctors, concerned with the welfare of their patients. They came up with SOPs providing that a detainee on a hunger strike more than a short period could not be interrogated. The joint medical group has enough power to make this happen.

The interrogation program was running over 200 interrogations a week. Hunger strikes crippled interrogations-- and infuriated the command..

The Talking Dog: Let's turn to drugs... as a matter of the question! Specifically, you tell us that you were told that following the cell-extraction riot in which you ordered the discharge of "the muppet" (and earned your moniker "Satan" from the detainees), there was a significant calm in the camps following that incident, and you were told that sedatives had been administered to all of the detainees. Later, I understand that in the course of your later research, some which made its way into a Seton Hall University Law School report called "Guantanamo: America's Battle Lab" you discovered that at the time of their arrival, all Guantanamo detainees were administered an anti-malarial drug called Mefloquine, an anti-malarial medication, at excessive (5X recommended) doses at levels known to induce anxiety, paranoia and other mental harm. Aside from "everything"... what exactly is wrong with doing that?

Joseph Hickman: The administration of these drugs is absolutely a war crime, as I see it.

I can tell you that my discovery of the use of Mefloquine was a turning point in my figuring out that Afghanistan was "America's Battle Lab." When you consider how the detainees were transported from Afghanistan-- under total sensory deprivation (gloves, masks, goggles, ear plugs-- totally cutting them off from use of any of their senses -- we saw techniques taken right out of the Russian playbook from the early 1970s. So the detainees were deprived of the use of their senses for over 17 hours, and then they are administered a dosage of 5X the recommended dosage of a fat soluble drug that induces psychosis at that level-- that will remain in their system for 30 days or more, with an SOP providing that for 30 days, they will get no Red Cross visits, no books, no Korans, or anything-- other than interrogations.

In short... the whole thing was all some kind of a game.

The Talking Dog: Jumping back to my interview with Erik Saar... from his closing comments:

A military organization's good order and discipline requires that soldiers follow their orders-- you cannot run an army if orders are routinely questioned. But... Since leaving Guantanamo I have discussed this with JAG officers... I asked "does this mean we all violated international law?" Needless to say, they couldn't give me a response! What would have happened if a junior soldier-- an interrogator or a translator, or both-- said "I'm sorry, sir, this order violates international law and I will not comply"? Best case their career would have been over. Worst case they would have faced discipline, if not outright court-martial and jail. Yes, they would have just been vindicated by the Supreme Court, but... who would do it? I WISH someone would have done it. They'd be justified now. But all along the way, no E-3, E-4 or E-5 should be deciding this. Culpability for this goes all the way up the chain of command...

Please comment on Sgt. Saar's observations there, in light of your own experience (i.e., feeling that as a matter of conscience you had to retire from the military just a few years before being eligible for a nice pension in order to be able to tell your story, having to respond to criticism from the military that "you were on the perimeter and didn't see anything," etc.).

Joseph Hickman: I would agree with Saar's comments. I am only aware of one case of military personnel refusing their orders, that being the navy nurse who refused to follow orders with respect to force-feeding a detainee on hunger strike. That nurse was threatened with court martial.

From my perspective, this was the first time in my military career that I felt that I had to question the people over me, and what they were asking me to do..

The Talking Dog: In bringing your story out to the world, you eventually sought out Professor Mark Denbeaux at Seton Hall Law School, who helped you engage the services of (his son) attorney Joshua Denbeaux [interviewed by me here]... and you presented your story to, among others (my former employer), the U.S. Department of Justice. And although your story did result in some award winning journalism by Scott Horton at Harper's, much of the so-called mainstream media and of course, the Justice Department, just concluded "nothing to see here folks, move along." I note that your actions in this regard took place after you left the military and after George W. Bush left the White House to be replaced by (my college classmate) Barack Obama, he of "I will close Guantanamo within one year [of taking office]"... which was over six years ago. Did you ever reach any conclusion as to why (1) the new government supposedly committed to closing the place and (2) a media supposedly interested in salacious stories (such as your provocatively titled story of Murder at Camp Delta)... had no interest whatsoever in disturbing the official narrative?

Joseph Hickman: When ABC News, or any other major media outlet looked at this story, they immediately brought questions to the Pentagon, the Pentagon would keep saying "he was only a perimeter guard and not in the camps that night"-- and the media simply believed it, without further questions. They had no interest in investigating further. I can tell you that I wish that I was "only a perimeter guard" on May 18th of 2006-- the night of the riot when I had to fire on the detainee. But the media uncritically bought the government's story, much more than it should have.

With respect to the Justice Department, Obama kept saying that he was trying to put torture and dark sites behind us, without accountability-- by "looking forward and not backward." And so it is not surprising that the Justice Department had a strong interest in not having my story go forward and reveal the existence of a CIA black site-- indeed, that alone might be a major reason "not to look backward."

The Talking Dog: Professor Denbeaux and his team at Seton Hall have been researching this area for nearly a decade; you now have a title at Seton Hall Law School ("Adjunct Professor and Senior Research Fellow, Seton Hall Law Center for Policy and Research")... can you comment on the methodology used in preparing its reports, and why you believe it is a reliable account of what it purports to present?

Joseph Hickman: The Seton Hall reports strictly rely on only the government's own publicly released documents. By doing it that way, we can rely on government sources and government documents to use the government's own words against it-- such as pointing out a vast number of contributions in the recidivism area in the Seton Hall recidivism report.

The Talking Dog: Anything else I should have asked you but didn't, or anything else that you believe needs to be told to my readers and the public on these important issues?

Joseph Hickman: I just want the story out there-- especially the families of the men who died that night, particularly al-Zahrani's... his father was actually a Brigadier General in the Riyadh (Saudi Arabia) police... I wanted him to know that his son did not die the way our government said he did. I want accountability for our government's actions, and I want a real investigation. I am by no means sure how or if that will happen, but that is what I want to see, and what I believe is needed.

The Talking Dog: I thank Joseph Hickman for that eye-opening interview, and encourage all interested readers to check out
"Murder at Camp Delta: A Staff Sergeant's Pursuit of the Truth About Guantanamo Bay".

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 Guantanamo military commissions defense attorney Todd Pierce, with former Guantanamo combatant status review tribunal/"OARDEC" officer Stephen Abraham, with attorneys Jon Eisenberg, David Marshall, 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, Laurel Fletcher, author of "The Guantanamo Effect" documenting the experience of Guantanamo detainees after their release, and with John Hickman, author of "Selling Guantanamo," critiquing the official narrative surrounding Guantanamo, to be of interest.

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February 19, 2015, Ends with a whimper

My very first GTMO related interview was with Josh Dratel, nearly ten years ago. Josh was one of the civilian attorneys who represented "Australian Taliban" David HIcks, then held at Guantanamo, and subjected to charges and possible trial before a military commission. Hicks eventually pleaded guilty to "material support of terrorism" in exchange for immediate release to Australia, where he served out nine months pursuant to a plea deal-- but got himself out of GTMO.

Coming full circle, we give you this decision of the U.S. Court of Military Decision Review in the case of Hicks v United States" vacating Mr. Hicks' conviction on the grounds that the "war crime" he pleaded to (he contended under extreme duress)... was not a "war crime" at the time he took his plea.

Still 122 men at GTMO, ostensibly "the worst of the worst," with the promised "9-11 [show] trials" the centerpiece of the place. My college classmate Barack Obama promised to close the place, but has, at best, released only half the prisoners there (despite finding dozens more "cleared for release"), a mere ten dozen or so, in over six years, have been released by the Obama Administration, even as it has fought (tooth and nail) any and every effort to obtain habeas relief. Even as (like our economy, our culture, and certainly our moral authority) the military commissions continue imploding in front of us.

This long national nightmare is over thirteen years and counting, of detaining-- under the harshest of conditions-- dozens of men that the government itself says are completely innocent... with no particular end in sight.

Beyond this... I got nothin'...

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February 2, 2015, Groundhog Day

Punxsutawney Phil saw his shadow this morning, auguring six more weeks of winter (the calendar says seven anyway)... in what has already been a cold, snowy, unpleasant winter in much of the North, anyway (this morning, a miserable slush-fest, our own city's Lord Mayor supposedly made his way to Staten Island groundhog ceremonies notwithstanding his dropping the groundhog last year which probably killed it).

It being Groundhog Fay, our national religion played to form: the team that apparently cheats has (of course) won the Super Bowl.

The sporting realm had been one of the last bastions of fair play in this society (banking, the law, business in general, education, etc. having long surrendered fairness to the relentless pursuit of mammon). Indeed, the perceived lack of fairness (along with the boringness from almost no scoring) is one of the reasons my countrymen don't like that other bullsh*t sport beloved everywhere else (known as futbol to our South): think about the total arbitrariness, what with the flops and the bogus "officiating," often awarding the game to one side or the other on dubious "fouls" and penalty kicks.

So... Americans usually take offense at things like steroids in baseball, Lance Armstrong, or other things that undermine fair play in sport. This could be because unlike most countries that have community and family connection and human value (as opposed to ruthless sociopathic capitalism and a simulacrum of national cohesion and civility), at least we have fair play in sport (if nowhere else).

But, as the New England Patriots have just shown us... perhaps we don't even have that. Something to ponder... on Groundhog Day.

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January 31, 2015, Picture (or chart) worth 1,000 words?

Via Candace, we get this handy dandy chart, comparing the GTMO population as of (my college classmate) Barack Obama's inauguration day, or or less: GTMO_Detainee_Population_Chart.pdf

Interesting stuff: the census has been brought down by about half (including the death of one man who was "cleared for transfer" and two others in the category of "indefinite detention," meaning presumably, too dangerous to try but too Muslim to release), but many unfortunate trends persist nonetheless.

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January 24, 2015, Winter blahs

A wintry mix here in Brooklyn... an inch or two of white stuff when I woke up, which was absorbing water as it turned to rain (I shoveled it away anyway)... but NYC street corners are catch as catch can, especially for a talking dog who pretty much only wears aging running shoes...

Plenty of time to ponder why the President will be cutting short a trip to India to travel to Riyadh, Saudi Arabia (to pay condolences following the death of 90-year old King Abdullah) and otherwise visit new King Salman just a week or two after apologizing for not sending a high level delegation to a "unity march" in France following terrorist attacks there that left seventeen dead. Neither President Obama nor Vice-President Obama will attend ceremonies surrounding the 70th anniversary of the liberation of Auschwitz, either. [If you have a problem with the President or his "swagger," WaPo's Dana Milbank says "get used to it." Let's face it: if you're going to be George W. Bush's third and fourth terms in policy, why not in style too? Barack Obama has even completed the cycle with losing both houses of Congress!]

We at Stately Dog Manor were delighted to recently host Andy during his recent visit stateside for a speaking and event tour to coincide with the ignominious anniversary of the opening of the detention facility at Guantanamo Bay; your talking dog even made it down to D.C. for the anniversary day protest rally in front of the White House, marching along notional Constitutional Avenue to stop in front of the so-called Justice Department [my former employer!], concluding at a point above D.C.'s subterranean holding cells near the local courts... a symbolic tie-in between the second class justice received by two many domestically, and the no justice of any kind received by the men held at Guantanamo, of whom 122 are left (and counting) following a spate of recent releases. We saw our friends Todd Pierce and Tom Wilner, among others. Meanwhile, Candace has a plethora of news on that front, including specific news of the releases, the sending-home-to-Qatar of legal resident Ali al-Marri (like American citizen Jose Padilla, held domestically in GTMO-like lawless conditions for years within the United States itself.)

Of course, another recent subject of protests, particularly here in the big city, were the near contemporaneous non-indictments of the police officers involved in the respective deaths of unarmed Black men Michael Brown and Eric Garner. Not that I thought a grand jury in Staten Island would necessarily issue an indictment... after all, indictments of police officers for actions in the course of duty are extremely rare in this country... I was wondering about the timing of the grand jury decision, so close to that of the grand jury decision coming out of Ferguson, MO... we now at least know that the prosecutor may have been thinking about running for the Congressional seat of now convicted felon Michael Grimm, as Richmond County D.A. Dan Donovan has announced he is running for that seat following Grimm's resignation.
Oh... the CIA's "head spook" is stepping down, also.

And in case we didn't already have the winter blahs... the 2016 Presidential campaign, alas, is now off and running, with a big shindig in Iowa hosted by Congressman Steve King, featuring such Über-Creeps as Chris Christie, Scott Walker, Sarah Palin and Ted Cruz... and Donald Trump! As my own view is that the country should be placed in some sort of regency administered by Lloyd Blankfein, Jamie Dimon and a couple of defense contractors and oil executives, and thereby eliminate even the pretense of "democracy" (which, of course, this nation is not... we're not the largest economy either, btw... ) nonetheless, I understand that there are huge volumes of money moved around with respect to the appearance of us having a democracy... and, obviously, I can recognize that even at an aesthetic level, I really can't bear say, Chris Christie or Ted Cruz or the Donald, none of whom rise in my esteem anywhere near to the level of, for example, professional-wrestling-villain-style-evil-genius Bill Belichick (who suggested "climactic factors" may have caused under-inflated footballs at last week's conference championship)... yada yada yada... It's going to be Jeb Bush vs. Hillary Clinton (barring something unexpected), so we can all go back to sleep. Jeb will represent the worthy fifth and sixth terms of his brother (or if you like, the seventh and eighth terms of Hillary's husband)... and Hillary will as well. Nothing to see here, folks... move along.

Well, we're over a full month into the calendar winter... the days are getting longer. Soon I'll ponder ordering some seeds to get started indoors... My advice to you'all is to go find someone to hug. The rest of this stuff is... [hopefully] less relevant than all that.
Come on now... move along...

January 1, 2015, Happy new year

It's 2015 now. That's the fifteenth different year in which I have posted something to this blog. A special thanks to those of you still reading... even occasionally... who aren't some kind of bot. I know I don't post as often as I once did... but... such is life on a blog that began when I was in my late 30's... now, in my early 50's... let's just say I don't feel compelled to post as much as I once did.

The year 2014 had its difficulties, and a number of people I care about lost loved ones. Hopefully for you and yours, 2014 also had its upsides.

I'm not going to post any resolutions, or predictions, for the coming year. I'll just post a suggestion, that you make some progress toward making "baby steps" towards whatever it is that might be (really and genuinely) important to you, be it good health, or loving relationships, or personal contentment or self-development... try to pick one or more of those... you might well consider your "self" to be broader than well, your self to include, oh, your community or environment or something like that... in which case, by all means, working towards making the world a more beautiful and loving place is a darned nice thing to do too.

In fact, devoting your life to that pursuit-- and such a life can only be lived moment to moment, in those "baby steps"-- will allow just about everything else to fall into place. Go ahead and plant your own garden (metaphorically if you like... and I suggest you try to do it literally as well, even if it means just a few seeds or sprouts in a flower pot). Why? Because it might make you happier.

Happy new year, everyone.

December 23, 2014, Happy Festivus

In an America where a long-awaited Senate report on torture draws out polling that shows that something like 59% of Americans don't think torture is justified: they think it's awesome... the stock market hits record highs... just as the labor force participation rate reaches its lowest point since the late 1970's... before many women... or talking dogs... were even in the work force. As the price of oil crashes... it might take out one of the few "green chutes" of our post-Great Recession "economy"... fracking for oil...

And while a few more prisoners have been released from GTMO... the official at State responsible for arranging Guantanamo repatriations... has quit.

I'm not even going to start on the mirth and merriment continuing in my own City in light of the ongoing Michael Brown-Eric Garner protests, seemingly hushed a bit in light of the senseless and brutal murder of two police officers in nearby Bedford-Stuyvesant. Just a day later, I eked out a finish in a 50-K... thus finishing my seventh "ultra" (against five ultra DNFs and thirty-nine (?) marathon finishes). All in all... let's just say that the immediate and intermediate futures look... unclear. We are blessed/cursed to live in "interesting times." And that's without even considering the incoming Republican Congress (like that will make any meaningful difference!)

At a time like this... I say, we can all use a little Festivus cheer. Happy Festivus everybody!

December 6, 2014, Why can't we all just get along?

You'll all recall that as the late Rodney King's plea for calm, in the midst of riots-in-his-name that broke out in Los Angeles after [White] police officers charged with savagely beating [Black] Mr. King-- caught on a videotape-- were, surprise, surprise, acquitted [by an all-White suburban jury.] Which is why it seems an appropriate tag-line for the present moment, of spontaneous (or are they?) street protests breaking out all over my city (and country) right now, in light of the most recent perceived outrage, that of the non-indictment of the police officer whose actions resulted in the death of Eric Garner in Staten Island, NY... protests, which this piece suggests might start the equivalent of an Arab Spring here. (It also has an interesting angle about Garner constantly being hassled because of regulatory issues-- New York's extremely high cigarette taxes-- but that is just as applicable to Ferguson, MO, where the police seemed to thrive on writing bullsh*t jaywalking tickets.)

And I'm going to say "no... they're not going to lead to an Arab Spring here." First of all, the Arab Spring has largely "worked out," if you want to call it that, only arguably in Tunisia. Egypt is not only still an authoritarian sh*thole, but even Hosni Mubarak himself has been acquitted in the aftermath of an ostensible restoration of the pre-Arab Spring status quo there. What took place for a time in North Africa was as much about street protests and a populace that had it as spent regimes no longer legitimate or cohesive enough to contain those protests, resulting in (seemingly) dramatic change.

We have neither of those conditions here. Right now, at least, our governmental mechanisms, at least at the federal and state level, appear cohesive (obviously, there are municipalities with severe fiscal problems, such as Detroit, that may be less cohesive.) And the protests that have broken out have not been insignificant, and have certainly disrupted traffic at times... but they are hardly the scale of the Tahrir Square protests in Cairo or analogs elsewhere in the Arab world that effectively brought activity in those places to a stop, and brought the governments there to crisis (and eventual collapse). Thing is: it's a numbers thing, and it's a perception thing.

The outrage of the non-indictments of both officer Darren Wilson in the Michael Brown shooting and of officer Daniel Pantaleo in the choking death of Eric Garner has, to be sure, sparked the level of outrage that triggers this speculation about "Arab Springs." The outrage, of course, has been seized upon by the usual suspects, like professional race-baiter/racial-ambulance-chaser Al Sharpton, but is nonetheless quite palpable, and given the unfortunate juxtaposition of the two events, outrage seems a quite reasonable response... indeed, while, as a lawyer quite familiar with the functions of grand juries (and politically motivated prosecuting attorneys), I fully understand how grand juries would vote not to indict in either case, even knowing that, I am still outraged myself... but...

The meta-point here is that as long as this is a "Black-White" thing, nothing is going to change. That "Black-White" narrative plays wonderfully into several other long-running narratives (Black victimization by the police, Whites being safe from victimization from the police, just to name two) that are all extremely useful to the ruling elites [as deftly aided by their helpful (well-paid) assistants (yes, I do mean Mr. Sharpton, to name the most famous)].

My point is that something else, extremely troubling, is going on, that being more and more law enforcement officers see themselves not as, well, "peace officers," but as quite the opposite-- a military occupying force, with the citizenry not "the citizenry," but "the enemy." The "tip of the spear" will, inevitably, be the place where police are likeliest to encounter "the enemy," that being the streets of this country. There the likeliest encounters will be with poor people and especially poor people of color (because, historically, those have been the likeliest encounters, because historically, those are the easiest people to harass-- they are far less likely to hire criminal defense lawyers to defend dubious or outrageous bogus charges for petty crime, far less likely to have connections to higher-ups in law-enforcement to either "make it go away" or retaliate against the unwary patrolman who hassled them, or threaten withdrawal of political support from the politicians responsible for managing the police.)

Some things are coming to light, such as the Obama Administration's giveaway of surplus weapons-of-war to American police departments... and if you've got military weapons... police will then use military tactics. All of this goes on, not coincidentally, as our overseas empire is no longer able to pay for itself, and our internal economy is experiencing years of decline... those in power want to stay there, and brute force is one tried and true way to do it.

The point I'm trying to make is that "divide and conquer" is also a tried and true way for elites' power to remain unquestioned and unchecked. As long as most people (this HuffPo piece very smartly observes both the extreme racial disparity in polling-- 58% of Whites agreed with the Ferguson non-indictment against just 9% of Blacks-- in the context that the issue of administration of justice in this country is far, far broader than the procedural fairness or unfairness of particular indictments or verdicts in particular cases) see only the divisions, they will not realize the bigger game being played on them, that being an authoritarian noose being slowly tightened, featuring not just ever-more aggressive street policing (which, outside of our media centers, presumably impacts more poor White people-- think of the word "drifter" if you like-- more than it does poor people of color, because there are more of them), but virtually total electronic surveillance of all communications on Earth, legal doctrines like "state secrets," "preventive detention," and, "liquidation of enemies of the state" by drone or otherwise, in the name of a "war on terror" (that the Obama Administration won't even call that)... that, if one were to get past the fact that police in this country appear not to be accountable, and recognize that this is so only because they are serving an elite that is itself not accountable... maybe we'll get somewhere. Maybe those of you who wonder should realize that while much of this blog seems devoted to events over 1,000 miles south of here in Guantanamo Bay... events there are far more relevant to your lives here than anyone would dare to admit.

In short, Michael Brown and Eric Garner were human beings. They were American citizens. They were killed on the streets of this country, despite being unarmed, and presenting no real threat, by American policemen. And then those policemen were not held accountable for what coroners in both cases ruled were deaths caused by homicide. And that is an outrage. But as hard as it is to do, it is necessary to realize that the second that I insert the words "Black" and "White" in those sentences, I am allowing too many people to retreat to the comfort of their narratives, and escape from the troubling reality that it ain't "ever thus." Times, they are a changin'... we can all get along, or we can be played. The present outrage breaking out in the streets of my city is understandable... I agree with the outrage.

But if the ultimate takeaway will be about "White" police and "Black" victims of particular incidents... we will not only not have gone anywhere, we will have cemented one more brick into the edifice of the current narrative, conveniently placed before us to divert us from what time it is (that being "a few minutes before 1984").

Just saying.

November 25, 2014, TD Blog Interview with Jon Eisenberg

Jon B. Eisenberg is an attorney “of counsel” with Horvitz & Levy,LLP, a law firm based in Encino, California. He has more than 35 years of experience in appellate litigation, and is the principal author of the leading treatise on California civil appellate practice, The Rutter Group’s “California Practice Guide: Civil Appeals and Writs.” He has argued a dozen cases in the California Supreme Court and some 75 cases in the California Courts of Appeal and the United States Court of Appeals for the Ninth Circuit. He is also on the legal team representing a number of Guantanamo detainees.
On November 25, 2014, I had the privilege of interviewing Mr. Eisenberg by e-mail exchange.

The Talking Dog:Where were you on September 11th?

Jon Eisenberg: I was home in Oakland, California, still in bed, listening to the radio. When I heard the news of the terrorist attacks I switched on the television and watched in shock as the twin towers came down. I wondered whether I should go to San Francisco for the class I was teaching that semester at Hastings Law School. I went. The streets around the school (in the city’s civic center) were cordoned off and police were everywhere. Only one of my students showed up. I returned to my office thinking back to the JFK assassination (when I was ten years old) and how this was a national trauma on a similar scale.

The Talking Dog: I understand you are involved with lawyers from Reprieve and others on legal teams who are suing to challenge confinement conditions at Guantanamo Bay on behalf of a number of prisoners. Multiple part question... Please name your clients and nationalities, identify your co-counsel, and state where your clients' litigations currently stand procedurally, which clients are "cleared for release" (if not all of them) and which of your clients are still on hunger strike. And, please let me know whether you are at liberty to talk about when or whether any of your clients are presently the subject of possible repatriation, to Uruguay, their home countries, or otherwise?

Jon Eisenberg: For the past year and a half, I have been working with Reprieve on a series of cases challenging the manner in which hunger-striking prisoners at Guantánamo Bay are being force-fed.

My clients (all represented by Reprieve for various periods of time) have been Abu Wa’el Dhiab (Syria), Shaker Aamer (Saudi Arabia, resident of Great Britain), Ahmed Belbacha (Algeria), Nabil Hadjarab (Algeria), Emad Hassan (Yemen), and Mohammad Ahmad Ghulam Rabbani (Pakistan).

My co-counsel: Cori Crider, Alka Pradhan and Clive Stafford Smith of Reprieve (London and New York); Eric Lewis and Elizabeth Marvin of Lewis Baach, PLLC (Washington D.C.); and Lisa Jaskol of Public Counsel (Los Angeles). I have also gotten sage advice from Guantánamo Bay habeas attorneys Stephen Truitt and Sabin Willett.

The status of the various cases:

Abu Wa’el Dhiab has become the most actively litigated case, simply because his is the one on which the assigned district judge, Gladys Kessler, has acted most expeditiously.

Throughout the spring and summer of 2014, Judge Kessler granted us a limited amount of discovery, the most significant of which has been access to secret videotapes of Dhiab’s forcible cell extractions and force-feedings. In early October of 2014, Judge Kessler held a three-day hearing on our application for a preliminary injunction, at which we presented testimony by three doctors, excerpts from Dhiab’s Guantánamo Bay medical records, excerpts from secret written policies (called “standard operating procedures”) to which Judge Kessler ordered the government to give us access, and the secret videotapes. We presented a solid case, but on November 7, 2014, much to our surprise and disappointment, Judge Kessler denied the application in its entirety. We immediately filed an appeal, which is now pending in the D.C. Circuit.

Dhiab was cleared for release in 2009. Recent news media reports (on which I shall not comment) suggest that a particular country is willing to accept him. Meanwhile, he remains on hunger strike.

Shaker Aamer, who was cleared for release in 2007, was our lead petitioner (joined by Abu Wa’el Dhiab, Ahmad Belbacha and Nabil Hadjarab) on our previous trip to the D.C. Circuit, which led to that court’s pivotal ruling in Aamer v. Obama that the federal courts have jurisdiction over challenges to conditions of confinement at Guantánamo Bay. For various reasons, however, his case has taken a different turn since then and we have not yet resumed his force-feeding challenge.

Ahmad Belbacha was released to Algeria on March 23, 2014, shortly after the D.C. Circuit’s decision in Aamer v. Obama.

Nabil Hadjarab was released to Algeria on August 29, 2013, shortly before we presented oral argument before the D.C. Circuit in Aamer v. Obama.

Emad Hassan, cleared for release in 2010, has been on hunger strike for more than seven years. He has been force-fed approximately 5,000 times—a truly shocking number. We commenced Hassan’s force-feeding challenge shortly after the decision in Aamer v. Obama, but later withdrew it for various reasons and have not yet resumed it.

Mohammad Ahmad Ghulam Rabbani has been neither tried nor cleared for release. We commenced his force-feeding challenge shortly after the decision in Aamer v. Obama, and it is currently pending before D.C. District Judge Royce Lamberth. Rabbani remains on hunger strike.

The Talking Dog: You were part of a significant win in the not always detainee friendly D. C. Circuit Court of Appeals, recognizing detainees have a right, albeit limited, to challenge conditions of confinement such as force feeding. And you won a significant victory in that the hearing at the District Court would not be closed to the public. In light of the recent denial of the challenge to force feeding by Judge Gladys Kessler regarding your client Abu Wa'al Dhiab of Syria, does the D C Circuit's earlier ruling now take on less significance (if seemingly a detainee cannot win no matter how egregious the government's conduct), or do you see an opening for the Circuit to reverse Judge Kessler on this? Follow up-- can you tell us- in Cliff Notes form, perhaps, but with appropriate gory details-- what the most compelling evidence was at the recent evidentiary hearing before Judge Kessler?

Jon Eisenberg: It does indeed seem that the big victories in Guantánamo Bay litigation, such as in Boumediene (establishing habeas jurisdiction to order release from Guantánamo Bay) and Aamer (establishing habeas jurisdiction over conditions of confinement at Guantánamo Bay), turn out to be little more than theoretical. No detainee has yet managed to secure release or relief from abusive conditions solely because of judicial compulsion. But I do believe the continuing pressure of litigation, along with the ongoing hunger strike, is at least partly responsible for causing the Executive Branch to resume the releases of cleared detainees (which had been suspended for several years), and I know for a fact that Dhiab’s case caused the Department of Defense to suspend several of its more egregious force-feeding practices.

There is indeed an opening for the D.C. Circuit to reverse Judge Kessler’s decision of November 7, 2014. The pivotal threshold question before Judge Kessler was whether the Guantánamo Bay detainees possess any constitutional rights that are implicated by the challenged force-feeding practices. The answer determines the standard of proof. If the answer is yes, then Dhiab need only prove that there are “ready alternatives” to the challenged practices. But if the answer is no, then Dhiab must prove that the government was “deliberately indifferent” to the pain and suffering caused by his force-feeding—a standard that is nearly insurmountable. Judge Kessler did not expressly decide this threshold question, but seems instead to have assumed an absence of constitutional rights, and thus she assessed each challenged practice according to the “deliberate indifference” standard. On appeal, we will ask the D.C. Circuit to rule that the challenged practices do implicate constitutional rights that extend to Guantánamo Bay, so that Judge Kessler should have assessed those practices under the “ready alternatives” standard.

As for the most compelling evidence we presented to Judge Kessler, here’s a partial list:

1. The force-feeding videotapes. They are very, very disturbing. The American people need to see these videotapes as much as the Abu Ghraib photographs.

2. An interrogatory response by Col. Bogdan in which he admitted that the purpose of a short-lived experiment in more lenient force-feeding practices was to “incentivize” detainees to stop hunger-striking—which, of course, is the carrot counterpart to the stick of more painful practices. This admission belies the government’s claim that everything done to the hunger-strikers is motivated by “humane” intent. The government is inflicting unnecessarily painful force-feeding practices for the purpose of coercion, not out of beneficence.

3. Medical records demonstrating that the May 2014 order to force-feed Dhiab was based on a false accounting of his previous usual weight.

4. Evidence that the Guantánamo Bay “standard operating procedures” for force-feeding are substantially harsher than the regulations governing force-feeding in federal prisons within the sovereign borders of the United States.

5. A notation in Dhiab’s medical records stating that Guantánamo Bay medical personnel deprived him of the use of a wheelchair because of his “disciplinary status”—i.e., as punishment for hunger striking.

6. The routine use of olive oil to lubricate feeding tubes, which the government recently ceased after one of our expert witnesses, Dr. Steven Miles, pointed out that the use of oil-based lubricants in enteral feeding can cause a rare form of pneumonia. (Interestingly, a report on the autopsy of Guantánamo Bay detainee Adnan Latif, who died in 2012, states that Latif not only overdosed on medication but also was suffering from pneumonia.)

7. The manufacturer’s instruction pamphlet accompanying the feeding tubes used at Guantánamo Bay, which recommends replacing them every four weeks—rebutting the government’s claim that it is dangerous to leave feeding tubes in place and they must be inserted and removed twice daily.

8. A medical journal article reporting that doctors and patients overwhelmingly agreed in a survey that the insertion of a nasogastric feeding tube is the most painful of common emergency room procedures—more painful than urethral catheterization.

The Talking Dog: Turning to the other portion of Judge Kessler's earlier ruling directing public disclosure of videos made of your clients' force feeding, and forcible cell extractions, which your co counsel Cori Crider saw and said made it difficult for her to sleep, again, multiple part question... Has the government appealed that order yet, and do you have any insight on what will happen with that appeal (both from the stand point of an advocate and a guy who wrote the book on appellate litigation)? Have you seen the videos? If so, how close is this animated version of them derived from detainee accounts? And how strong do you think "public's right to know arguments" will play against the over thirteen years of bipartisan national hysteria we have been enjoying (with the Islamic State as only the latest reason we should all be scared to leave our homes)?

Jon Eisenberg: As of this writing (November 25, 2014), the government has not yet appealed Judge Kessler’s October 3, 2014 videotape order. She has given the government until December 2, 2014 to decide whether to do so. In my opinion as an appellate specialist (you have alluded to my authorship of a treatise on California appellate procedure), that order is not even appealable, because it is not Judge Kessler’s final ruling on public release of the videotapes. At this point, all the government has been ordered to do is redact the videotapes and submit a proposal for the logistics of their public release. Only when Judge Kessler approves the redactions and issues her final order for public release will there be an appealable order. If the government files an appeal from the interlocutory order of October 3, 2014, we will move for dismissal of the appeal as premature.

In any event, if the government wants to keep the videotapes secret, then sooner or later the question of public release will go to the D.C. Circuit (and perhaps even the Supreme Court). I won’t hazard a guess as to what might happen on appeal.

I have seen the videotapes. They are classified secret, and I am forbidden from describing them to you.

The Talking Dog: Let me use that public right to know thing to segue to the Al-Haramain Islamic Foundation case, in which it was established that the Bush administration knowingly violated the FISA law in eavesdropping on an Islamic charity (now no longer extant I believe) but ultimately two lawyers who established that their conversations were illegally spied on could not recover because of sovereign immunity... do I have the details right, what was your role in that case, and where do you see this case in the big picture (even as it was the only case of its kind I know of to survive a state secrets assertion)? Bonus question: there is no doubt whatsoever, I assume, that your attorney client communications involving Guantanamo detainees, and probably all of yours and my communications, are being captured by the government, and we presumably have no recourse to challenge any of it... can you comment on that?

Jon Eisenberg: I was part of a legal team that spent six years litigating a challenge to President Bush’s warrantless wiretapping program on behalf of an Oregon-based Islamic charity and two of its attorneys who were illegally wiretapped. The case started as Al-Haramain Islamic Foundation Inc. v. Bush, and ended as Al-Haramain Islamic Foundation, Inc. v. Obama. That’s right—Bush did it, Obama defended it.

We learned of the illegal wiretapping because, during previous administrative proceedings, the government had accidently given the charity’s attorneys an incriminating copy of a top secret document. The government asserted the state secrets privilege to oppose our use of the document to demonstrate our clients’ standing to sue. We litigated the privilege issue for years, during which time enough non-classified information emerged to enable us to demonstrate standing without using the document. Relying solely on this public information, we won in the district court, obtaining a ruling from U.S. District Judge Vaughn R. Walker that our clients had indeed been wiretapped in violation of the Foreign Intelligence Surveillance Act of 1978. The Ninth Circuit reversed Judge Walker, holding that the government has sovereign immunity from civil actions for violating FISA. So, Bush’s warrantless wiretapping program goes down in history as having been illegal but untouchable by legal process.

Al-Haramain was part of a bigger picture of more than three dozen lawsuits filed nationwide challenging Bush’s warrantless wiretapping program. It was the case that survived the longest, probably because of the unique situation of the secret document. Ultimately, all of the other lawsuits foundered on the state secrets privilege. We managed to sidestep the privilege but then lost on sovereign immunity. The Electronic Frontier Foundation continues to litigate valiantly against government eavesdropping.

I spent some time in a funk over the denouement of Al-Haramain, but got over it. I then moved on to Guantánamo Bay litigation.

Is the government secretly eavesdropping on me? How should I know? It’s a secret! Let’s just say I wouldn’t be surprised.

The Talking Dog: As you probably know, President Obama happens to be my college classmate. At the time his Justice Dept first asserted state secrets in the Al-Haramain Islamic Foundation case back in 2009, you suggested it was too soon to tell what his government was up to...we are nearly six years on...do you have any doubt that in many respects he has been a worthy successor to Bush and Cheney if not their third and fourth terms?

Jon Eisenberg: Actually, my absence of doubt in that respect dates back to the day before President Obama’s 2009 inauguration, when—having in mind Obama’s public denunciation of Bush’s warrantless wiretapping program as illegal—I proposed to the lead Department of Justice attorney in Al-Haramain that we stipulate to a suspension of further proceedings pending reassessment by the new Administration. I got the shock of my career when he replied that he had already consulted with the Obama transition team and there would be no change in the government’s handling of Al-Haramain. That was my moment of epiphany about Obama. No change, no hope. But I didn’t want to say that publicly, at least not yet. So I quoted Zhou Enlai.

When it comes to national security and privacy issues, Obama has proved, time and again, to be just awful—as bad if not worse than Bush and Cheney. When you were in college with Obama, did you ever imagine that he would turn out to be Big Brother?

The Talking Dog: How did you get involved in the Guantanamo litigation? What effect has it had on you, personally, professionally, or any other way you'd like to answer? Do you see any common threads in the current force feeding cases, a comparable scenario in the Terri Schiavo case (also a "right to refuse medical care" case, in which you were once also involved), and the eavesdropping case of Al Haramain?

Jon Eisenberg: One of my Al-Haramain co-counsel, Lisa Jaskol (who has been my friend for nearly 20 years and was formerly one of my law firm partners), invited me to help her out with an appeal she was handling on behalf of a Guantánamo Bay detainee named Obaidullah whose habeas petition had been denied. Toward the end of that case, the 2013 hunger strike began. When investigative reporter Jason Leopold somehow managed to get hold of and publish the written “standard operating procedures” governing the detainees’ force-feeding, I read them and began to formulate an idea for a legal challenge. I made some inquiries and found my way to Cori Crider at Reprieve, who’d had the same idea. The next thing I knew . . . .

The common thread in each of these cases—warrantless wiretapping, indefinite detention without trial, force-feeding, right of personal autonomy—is their implication of liberty interests protected by the constitutional right of due process. These are all human rights cases.

I spent about 3,000 hours on Al-Haramain, and so far I have about 1,800 hours into the force-feeding cases—all uncompensated, in case you’re wondering. I do well enough financially with the billable side of my practice, but there’s been an emotional toll. Sometimes I despair. The victories are gratifying, but the defeats are very hurtful.

The Talking Dog: Assuming, as I do, that the force feeding videos will never see the public light of day, and assuming that a few detainees (say, ten, maybe twelve) in the next year, get released (to Uruguay, for example)... where do you see this [the Guantanamo enterprise] going, say, in one year, two years, five years... Absent videos shown over and over (or at least salacious photos) would you agree that the American people are just not capable of developing any concern that would alter the state of public discourse (beyond a few gadflies of course)? Or... am I wrong on this-- is it now legacy time for Obama, and is he now perversely freed up [now that he has managed to lose both houses of Congress] to largely empty out Guantanamo?

Jon Eisenberg: As I write, at end of 2014, we are in the midst of a modest thinning of the Guantánamo Bay population. Come 2015, however, I fear the releases may cease for the remainder of Obama’s presidency—if the new Republican-controlled Congress wishes it to be so. I think Obama would like to finally make good on his promise to close the detention facility at Guantánamo Bay, but he squandered that opportunity in 2009 when the Democrats controlled both houses of Congress, and now I think the best he can do is to transfer most of the detainees who have been cleared for release. Our 45th president will inherit at least some of the mess that Obama has failed to clean up.

The Talking Dog: Do you see any significance to the release of six men to Slovakia, Georgia and Saudi in the last few days ...is this him slipping in a sincere effort to close the place while Congress sues him over immigration, is this just the first installment of the 15 or 20 guys released that I fear will be his end game, or is there any or no other significance to this?

Jon Eisenberg: Too soon to tell.

The Talking Dog: Can you comment on the prevalence of Orwellian terminology in present events-- such as "non-religious fasters," or "declining the honor of being approved for enteral feeding," "asymmetrical warfare" or numerous others at Guantanamo, and how much has this unfortunate trend accelerated under [alleged] "Constitutional scholar" Barack "No Drama" Obama's government ?

Jon Eisenberg: Well, it’s . . . Orwellian. That it has happened under Obama is something I still find astounding. We could endlessly debate whether the U.S. military is too strong to be controlled by any President, or whether this particular President is too weak to control the military, or perhaps both.

The Talking Dog: Media coverage of these issues-- the hunger strikes, Guantanamo in general, your representation-- do you have any comment on it?

Jon Eisenberg: When it comes to Guantánamo Bay, media coverage in England, continental Europe, and alas even Russia is generally superior to that in the United States—with several notable exceptions such as Carol Rosenberg at the Miami Herald, Jason Leopold at Vice, and Charlie Savage at the New York Times. A few American reporters have told me that they don’t write much about Guantánamo Bay anymore because the American people don’t care much about Guantánamo Bay anymore. But if we can keep Guantánamo Bay in the news, the American people will care—which is why it’s so important to secure public release of the force-feeding videotapes.

The Talking Dog: As an all-purpose legal observer, do you have a comment on what the Guantanamo project has done to, say, "the law," the practice of medicine and medical ethics, such as they are, penology, or any other aspects of American life?

Jon Eisenberg: For me, the only positive outgrowth of the “Guantánamo project” is the rise of the “Gitmo bar”—hundreds of attorneys across the country who have stepped up to provide pro bono representation of the Guantánamo Bay detainees, in the great tradition of John Adams. I have been amazed and uplifted by the dedication and talent of these fine lawyers. In my moments of despair, I think of them, which helps.

Other than that, I’ve seen little but darkness in the “Guantánamo project.” The rule of law, the practice of medicine, medical ethics, and penology have all been debased by what Bush and Cheney wrought, and I think Obama’s failure to effect significant change is a national tragedy.

The Talking Dog: Anything else I should have asked you, but didn't, or anything else the public should know about these important issues?

The public should understand that these men are not seeking to starve themselves to death, but rather are using the hunger strike as the only means available to them to protest their indefinite detention without trial. These are not “right to die” cases. This is speech, not suicide.

The Talking Dog: I join all my readers in thanking Mr. Eisenberg for that thorough and informative 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 Guantanamo military commissions defense attorney Todd Pierce, with former Guantanamo combatant status review tribunal/"OARDEC" officer Stephen Abraham, with attorneys David Marshall, 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, Laurel Fletcher, author of "The Guantanamo Effect" documenting the experience of Guantanamo detainees after their release, and with John Hickman, author of "Selling Guantanamo," critiquing the official narrative surrounding Guantanamo, to be of interest.

November 17, 2014, Family Values

I suppose now that the Republicans have recaptured both Houses of Congress, Charles Manson thought it was time to get a marriage license.

Sure. Why not?

October 30, 2014, TD Blog Interview with Todd Pierce

Major Todd Pierce (U.S. Army, Retired) is an attorney who served as a Judge
Advocate General (J.A.G.) officer in the United States Army. In that capacity,
he has served on the defense teams for two Guantanamo military commissions
defendants. On October 13, 2014 I had the privilege of interviewing Maj. Pierce
by telephone. What follows are my interview notes, as corrected by Maj. Pierce.

The Talking Dog: The customary first question is "where were you on Sept. 11th". In your case, I know you were on active duty (in Army Reserve command), and I know you've described almost the gestalt of the world changing as the day went on... can you describe that day, in terms of where you were geographically,
and anything else of note-- either small picture or big picture or both?

Todd Pierce: I was stationed, and on duty, at Fort Snelling, MN with the 88th U.S. Army Reserve Command in Minneapolis, MN. The Command covered 6 Midwestern states. A fellow officer came into my office and told me that a plane had hit
the WTC, and we thought, like everyone else, an accident, so I continued working until he came back in again and told me of the second plane hitting and we both knew then it was a terrorist act. I was the only JAG Officer in the Headquarters for most of the day as the senior JAG officer did not come in that day until about 3:30 pm, for some reason. Shortly after the second plane hit, a staff meeting was called where we discussed what had happened, and how to harden the many reserve centers in the command. Later in the day we knew we would be mobilizing soldiers for contingencies and preparations began to be made for that.

To me, there seemed to be a bit of hysteria taking hold of some of my fellow soldiers in their response as more details came in that day along with speculation on who was responsible. It was like being on the set of Fox News, which, unfortunately, was watched by far too many officers in their offices, guaranteeing an irrational, near-hysterical response from them. I thought if that was typical, there would be an over-reaction by the U.S. in many ways that would be detrimental to our interests. On the way home, I hit a traffic jam with the traffic backed up for about 5 miles. This turned out to be due to an elderly man standing on a highway overpass waving a flag frantically. I didn’t see that
as unusual under the circumstances but he was out there the rest of the week backing up traffic so that I finally complained to him. After all, I was serving my country and appreciated getting home after some long days. But it was further evidence of the hysteria that had taken hold of too many people, and we saw how President Bush, Dick Cheney, and the neocons would exploit that in the succeeding years; all to the detriment of the United States as their “strategy” was the exact opposite of how to respond to terrorism.

The Talking Dog:: As a JAG officer, you came to volunteer to defend those accused of violations of the law of war before the Guantanamo military
commissions. If you can, what led you to volunteer for such service-- was there anything particular in your own background that led you to do so? Please identify your clients, and their current whereabouts or dispositions (for example, we know that Mr. al-Bahlul's address remains "Guantanamo Bay, Cuba, apparently serving life sentence”).

Todd Pierce: I have represented two prisoners as a member of teams: Ibrahim al Qosi in his Military Commission (now back in his home country after serving an additional two years after his commission), and Ali al Bahlul in the appeal of his convictions, which is still going on, and also served as resource
counsel on a third case. I explained why I volunteered an article which appeared in the National Law Journal in 2011, “Guantanamo at 10.” There, I explained that I had grown up learning about harsh and illegal treatment of prisoners who should be treated as POWs because my father was taken prisoner by the Japanese in the Philippines 4 months after the beginning of World War II and survived the Bataan Death March and then three more years of captivity under the most grueling of conditions. Though he didn’t talk about it except when I would ask questions as I got older, it was clear that he had suffered severely as a result of the Japanese violations of the International Law standards for treatment of POWs.

The Talking Dog:: Segueing over to Mr. al-Bahlul, the D.C. Circuit recently issued a broad "en banc" opinion finding that some of what al-Bahlul was charged with and convicted of [during a proceeding where the defendant stood mute] aren't exactly "war crimes". Can you tell me, procedurally, where Mr. al-Bahlul's case now stands (notwithstanding Mr. Al-Bahlul's refusal to participate in his own

Todd Pierce: Oral argument was heard October 22nd before a panel of the D.C. Circuit. The only issue is whether conspiracy to commit terrorism is a war
crime. The court has already held that material support for terrorism and solicitation to terrorism are not war crimes, so only the conviction of conspiracy remains. The government's theory of war crimes is based on conflating martial law-- military governance over occupied territory or under a declaration of martial law in domestic territory -- with other aspects of the law of war, in order to try to create "war crimes." For purposes of the commissions, if the conduct alleged is not a war crime, then the commissions have no jurisdiction to try al-Bahlul, or anyone else, for that conduct. Again, after the Hamdan II decision, inchoate crimes of "material support" and "solicitation" associated with terrorism are no longer deemed war crimes. Traditionally, war crimes were thought to include conspiracy only if it was conspiracy to commit genocide or aggressive war-- conspiracy to commit acts of terrorism has never before been a basis for war crimes jurisdiction. Procedurally, the en banc D.C. Circuit acting as a whole vacated al-Bahlul's convictions for everything except conspiracy, and that is the issue in front of the Court now. While the government concedes that conspiracy is not a war crime under International Law, they have invented a “domestic common law of war,” taken mostly from the Civil War martial law cases.

The Talking Dog:: Following up on that point, can you expand on "domestic common law of war," and tie it to something you said that to me is the most
succinct shorthand for developments in law these last dozen years: "national
security law = martial law"? Please spend as much, or as little, time as necessary with Civil War precedents as a basis for these developments (though David Addington and John Yoo and the gang would have presumably gone to Hundred Years War or Peloponnesian War or Storage Wars if necessary to bring about Dick Cheney's dream of a shining interrogation center on a hill), as well as discussing "we're all Cheneyites now”.

Todd Pierce: The government is indeed relying on a conflation of the law of war and the application of martial law in the Northern states during the Civil
War. Taking those cases as precedents, even though they only applied in U.S.
Union territory under the declarations of martial law in certain areas of the North and then throughout the North with Lincoln’s declaration of martial law in September 1862, the U.S. government is essentially asserting they can exercise martial law throughout the world. It has to be noted that in the Civil War, martial law was only declared for the Union States, not the Confederates as the Confederates were treated as combatants and received belligerent rights so that they were not prosecuted even for killing Union soldiers.

But what the U.S. government has been doing since John Yoo and his cohorts
invented the scheme is to constantly assert that we “are at war,” and therefore the President, as Commander in Chief, has virtual powers of a dictator under the law of war, to which martial law is a branch of. The apparent contention is that we don't need a declaration of martial law, because a state of war in any non-constitutional country IS effectively a state of martial law. Of course, our Constitution prevents this. And so, the architects of the war on terror's legal paradigm go back to the era of Lincoln and the Civil War, when, of course, the nation did face a genuine existential threat. Martial law was actually declared in September 1862 specifically to suppress “ disloyal acts” in the North, which primarily was “speech" and as a result, military commanders had broad authority
to pick up what they believed to be pro-Confederate sympathizers, with detention
authority and trial by “drumhead courts,” military commissions. This is what government officials, such as Military Commissions Chief Prosecutor Brig. Gen. Mark Martins proudly hale as part of our legal traditions, even though they were thoroughly repudiated immediately after the Civil War by the U.S. Supreme Court in the Ex Parte Milligan case.

The new danger is that the "domestic common law of war" has creeped into our
overall statutory scheme: we now have Section 1021 which actually permits domestic military detention of persons, not excluding American citizens, merely suspected of “supporting” terrorism, without Bill of Rights protections. It has not been implemented, but we know, as a result of the position taken by the government in Hedges v. Obama that, under this provision, even a journalist such as Chris Hedges could find himself
subject to military detention. This has introduced a degree of martial law into the ordinary course of daily life; it is very dangerous, and we do not know how it will play out. Certainly, Barack Obama has not used this provision for the purpose of detaining citizens (or journalists) for speech, but his Administration has asserted the right to do it, and we certainly have no idea how a future President would use these provisions.

The Talking Dog:: Please discuss the revelations of Edward Snowden, Chelsea Manning, and/or Julian Assange-- particularly in the context of law of war issues and the other items we've been discussing, and tell me, please, how a
democracy can function when the government operates in secrecy?

Todd Pierce: The simple answer to that question is, it can't. Without the people's right to know, there is no meaningful democracy. The people under our
Constitutional system as the ultimate sovereign cannot operate without critical information as to what their government is up to. Indeed, they cannot even make
a meaningful judgment as to electing candidate A vs. candidate B when they have
no access to real information. We just do not end up with a meaningful democracy
without meaningful information that isn't classified!

Snowden, Assange, Manning-- all did a great service to this country. Going back to Vietnam, we have learned that our military leaders are not all-wise. Even an ultra-conservative like the American James Burnham understood this in recognizing that the World War II Germans had entrusted all information and decision making in the hands of a few individuals, all having only a military background as far as leadership, and who had internalized that way of thinking. With that background, too often they are incapable of thinking more broadly beyond just achieving an immediate military objective, with inevitable victory to follow in their eyes. Unfortunately, we have been giving virtually unfettered discretion to similar minded militarists, such as when President Obama acceded to demands by Generals Stanley McChrystal and David Petraeus, and former military officers John McCain and Lindsay Graham, when they called for surges in troop numbers in Iraq and Afghanistan, making matters worse. We are getting an idea of just how much the government and the military are trying to keep secret.

This amounts to a dereliction of duty in a democracy by both our political and military leaders, and it ends up being to the detriment of the conduct of the war against terrorism, and redounds to the benefit of our enemies. The Constitution is our greatest strength-- not a weakness- and it gives we the people the absolutely right to know what we need to know to make meaningful democratic decisions, especially vital issues of how to conduct foreign policy, contrary to John Yoo’s and Dick Cheney’s claims.

The Talking Dog:: Anwar al-Awlaki... please discuss, particularly in the context of law of war issues and the other items we've been discussing (feel free to also discuss my college classmate Barack's handling of legal issues associated with what used to be called "the war on terror").

Todd Pierce: The government will not reveal the information associated with the decision to kill Mr. al-Awlaki, or its legal rationale for doing so, except a heavily redacted version. We know that they have determined that they can target "operational leaders" of al Qaeda, and they have said al-Awlaki was designated as an operational leader, but we have to take everything that the military says with a grain of salt as its their policy to dissemble. It may seem to be funny to start characterizing a propagandist like al-Awlaki as an "operational leader." But under the expansive meaning of “belligerency,” even propaganda amounting only to opinions contrary to U.S. policy can result in elevation to "operational leader" status and then personal targeting, which is similar to what was done under the Phoenix Program of assassination during the Vietnam War.

Once again, this is based on an expansive reading of military law precedent from the martial law context during the Civil War. Then, newspapermen, publishers, even just outspoken persons with opinions, who might "say something embarrassing about the army"-- might end up being designated as "operational leaders" because their speech could "discourage enlistments"—an arguably hostile act!

I wrote about this in the context of Vietnam era generals... their ridiculous contentions that "discouraging speech" could serve to result in a loss of
national will to fight. This is precisely the logic employed by Germany in the 1930's and 1940's, and used in their infamous "people's courts" and "special courts" and similar structures. "War treason" was found to be anything embarrassing to the regime.

Troublingly, it appears we have adopted similar legal forms as Nazi Germany
for these principles. A German Jewish lawyer named Ernst Fraenkel, in a book called The Dual State, observed that martial law was the constitution of the Third Reich (he was writing in the late 1930's, before the full brunt of the Holocaust and World War II had taken place). He analyzed the legal forms of the
Third Reich as a prerogative state, which coexisted (albeit in a superior position) with the normative state. The prerogative state under der Fuhrer is, of course, martial law, or as our Supreme Court once called it: Martial Rule. Under Section 1021 of the NDAA, we have a degree of martial law baked into our system now. Of course, the Supreme Court's case of ex parte Milligan rolled back the martial law of the Civil War, after it ended. Indeed, much of the conduct of Union Authorities during the Civil War violated the Constitution. But that was the one period of our history when there was an existential threat to the continuing existence of the U.S. as it was then known, unlike today.

The concept of the President as commander in chief with unlimited war powers is what amounts to a prerogative state as are any authoritarian states in history and was revived from that very brief and repudiated Civil War period by by legal authoritarian John Yoo and the Bush legal team; their notion that the President has unfettered dictatorial powers is obviously wrong-- but it is shoving its way into legal doctrine still under the Obama legal team with opinions such as the Drone memo.

The Talking Dog:: Can you tell me how your Guantanamo commission representation has effected you personally, professionally, ethically or any
other way you'd like to discuss?

Todd Pierce: For me, working on these cases has revealed just how dangerous the government's positions are. I have been outspoken in trying to "out" the
government's contentions, and in arguing as to why we should not be follow this tack. Second, the government's position actually puts us in greater danger. Our leaders are guessing-- they actually do not know what they are doing. But as a result of these policies-- attack everyone, anywhere based on any perception of threat-- huge wealth transfers in favor of the military industrial complex (and allied corrupt foreign leaders) have taken place. And so, I am trying to become even more outspoken. Through getting together with others (like our friend Andy
); and trying to form groups involved in upholding the rule of law.

The Talking Dog:: Do you have a prediction for, say, five years out from now, and ten years out from now? Presumably, the Afghan war will technically be long over... other than the "high value" detainee commission trials still not being
finished, do you have any other predictions for the Guantanamo project?

Todd Pierce: We have to acknowledge that our government contains genuine authoritarian militarists. Sure, there are the McCains and Grahams, but there is
also the Hillary Clinton wing of the Democratic Party. We have Leon Panetta, the former Defense Secretary, telling us that he anticipate that the wars coming up will entail thirty years of fighting! It is amazing that someone can look forward into the future and suggest exactly how long a war will last... But of course, if we plan on occupying so many countries, this is what happens.

The "Pentagon's New Map" lays out the world into core countries, meaning the United States and allies Western Europe-- and then we would everything else into categories of the periphery, and then police the rest of the world. Of course, there might be some rebellion from this arrangement! As I've written before, we're all Cheneyites now-- the whole world is now subject to our military domination. We have actually decided to define rebellion against U.S. occupation as terrorism. (Another definition, of course, might be "blowback" as Chalmers
Johnson defined it

So when Panetta says we will be at war for thirty years, it means we will be looking for places to intervene, resulting in yet more "terrorism" resulting in yet more war. It will end catastrophically both constitutionally and financially.

In that context, Guantanamo is an ideal detention facility for authoritarians! Island prisons have historically been favored for this purpose. Bagram is working out to be another... the United States is now taking other prisoners from all over the world to Bagram-- in the middle of a war zone! At this point, extra-legal "courts" and military detention apparatuses are now firmly in place. How far will this goes? It's anybody's guess. It will continue to erode our basic protections, and, if unchecked, will bring about an end to our constitutional system (except for what Fraenkel would call "the normative
state"-- things like routine divorces, property conveyances and the like), while the "prerogative state" swallows everything else, in gross violation of both our Constitution and international law.

The Talking Dog:: Please comment on the recent machinations re: "the Islamic State" (ISIS, ISIL, or whatever you want to call it) in the context of issues we have been discussing, particularly our nation's apparent predilection to try to occupy every other country on Earth.

Todd Pierce: That's just it-- our response to ISIS appears to be part of our need to occupy everything everywhere! Our fingers are still all over Iraq! While
Obama is accused of having a failed policy for withdrawing troops from Iraq, all he did was what Bush had previously agreed to do.

At a book signing by Thomas Ricks after he had exalted Petraeus for an hour, Ricks immediately conceded the surge had been a failure, agreeing with an audience member (me) that it was a failure because there was no reconciliation reached among the parties already there. And so we have a fiction about "success" in Iraq, but all American policies led to the creation of ISIS, beginning with the American invasion of Iraq, and actually before with the years of sanctions on Iraq which Madeline Albright admits killed at least 500,000 Iraqi children.

Now, of course, ISIL is being used as a pretext to go back in! This, of course, will only accelerate disaster. And as we ramp up, ISIS gets stronger, because demonizing of that group by the United States is an effective combat multiplier for them, as we go into a
new war! ISIL is clearly willing to have this fight-- and our demonizing only bolsters the position of those who see the United States as the cause of the problems over there and seeing ISIS as willing to confront American imperialism.

The Iraq war has been called the greatest strategic blunder in American history-- by General William Odom! General Odom was once Director of the Defense Intelligence Agency and seems to have been the last high ranking American General who understood real strategic interests and not confusing them with immediate, transitory tactical interests which always call for another war. Obama compounded the disaster by adopting Bush's policy of trying to topple regimes we didn't like. General Wesley Clark told us that the Bush Administration was planning exactly that- to topple regimes-- and it was their intent to do so all along. So, this is what we've been doing-- the line is continuous-- Iraq, Libya, now a try for Syria... this led directly to the birth of ISIL, at the behest of Obama in trying to take out Assad, we created ISIL ourselves! The quandary of course, is that we're now facing the inevitable blowback that this kind of activity creates. The more of it we do, the more we ultimately lose. Right now, giving up some of our "control" would be the best policy... instead we're trying to find a "fix" that amounts to more of same.

The Talking Dog:: Anything else I should have asked you but didn't, or anything else you believe needs to be discussed on these issues?

Todd Pierce: As a military officer, the oath I took was not to the country,
or to the President. It was to protect and defend the Constitution of the United States. Indeed, to defend this nation is to defend the Constitution as that has been shown to be our greatest strength in permitting dissent to government policy which has so often been misguided. This is particularly true during wartime, especially a feigned war as is the present. Americans had better take an interest in how their Constitution is being eroded before their eyes, or it will inure to all of our detriment. The people must demand a genuine rule of law, and end to these continuing wars and their ongoing subversion of the Constitution. It damages all of us and diminishes national security, paradoxically.

The Talking Dog: I join all of my readers in thanking Major Todd Pierce for that fascinating and informative 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 David Marshall, 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, Laurel Fletcher, author of "The Guantanamo Effect" documenting the experience of Guantanamo detainees after their release, and with John Hickman, author of "Selling Guantanamo," critiquing the official narrative surrounding Guantanamo, to be of interest.

October 28, 2014, Family reunion (after 9-11 changed everything)

Candace let me know that her client Abdul al-Ghizzawi has finally been reunited (after thirteen years) with his wife and daughter (the latter, whom he last saw as an infant) since American policy ripped them apart, and then arbitrarily kept him at Guantanamo Bay until 2010 (he was released then to the Republic of Georgia, and made his way home to post-Qaddaffi Libya last year).

Interestingly, al-Ghizzawi notified Candace of the happy news (and Candace forwarded to me) two days ago-- on my 52nd birthday; I accepted it as a birthday gift from providence, just as I once accepted a postcard from al-Ghizzawi (forwarded via Candace and "the secure facility," the postcard, one of the few "comfort items" provided to him by the Red Cross, was also one of the few things he could enjoy presenting as a gift to those he believed were helpful to him, or who had otherwise shown him kindness).

In less happy news, the petition for certiorari review to the U.S. Supreme Court for Candace's other GTMO client, Razak Ali, has been denied (unsurprisingly, but still disappointingly).
As Candace's late great friend Studs Turkel used to say, "hope dies last." But, I'm afraid, it's not necessarily immortal.

October 22, 2014, Apocalypse begins at home

The road to hell is paved with good intentions, and leads to a couple of bowling allies in Brooklyn, and is traversed by Uber cabs... so we learned from the cautionary tale of Dr.
Craig Spencer,
a self-described goofball who heroically treated ebola cases in Guinea, West Africa, as a physician with Doctors Without Brains Borders... decided that his "self-quarantine" was too restricting, so he "voluntarily" checked out of... his apartment, and hopped a couple of car services across the East River from Upper Manhattan (near his regular job at New York Presbyterian Hospital) to Williamsburg, Brooklyn... so he could go bowling. Only God knows what else he did, and who else he contaminated came in contact with. Oh... did I mention that he has now tested positive for ebola? Maybe that's kind of important to know... [Hey, why should Ottawa get all the excitement?]

So far, so good, until the good doctor spiked 103 degree fever, and was carted involuntarily off to Bellevue, where his quarantine will no longer be "self-managed." [Bellevue seems somehow appropriate, no?] Seems... Dr. Spencer tested positive for... ebola.

Defies further comment. Should do wonders for Uber's business. Dr. Spencer apparently is here to go bowling, update his Facebook page and otherwise be an infectious goofball. The rest of us only have to try to live in this city. Nice-- a physician who has seen the gruesomeness of this disease intimately-- gets back here and handles it all... as a goof. A huge joke on the rest of us.

Except that it's really hard to imagine any other American not behaving the same way... I mean, everything is about instant gratification, self-indulgence, damn the broader consequences... I mean, Dr. Spencer seems like... any one of us.

A goofball.

October 1, 2014, Winter is coming

For a rather grim math lesson about the ebola outbreak, this post from John Michael Greer will more than do the trick. To summarize, absent successful intervention, various factors that slow these things down some, dumb luck, etc., if the present reports of the ebola virus doubling in infections every three weeks or so are in fact accurate, and human transmission patterns proceed apace in our ever more "globalized" world... an outbreak like this, at that rate (with somewhere between 50-90% fatality rate of those contracting ebola)... would result in something like everyone on Earth being exposed by, say, end of next year, with between roughly 1/3 and 1/2 of humanity dead as a result. More or less, of course.

But... please tell us about ISIS, or Ukraine (it's been a while). or the NFL and its enlightened attitude toward battering women or child abuse... or about the sainted Derek Jeter (suggested to be "the most ineffective defensive player in any position,".. the "worst fielder in the majors")... or much of anything else. Please don't tell us how the number of cases of ebola now in Texas... may have doubled (albeit "only" to two, but hey-- surely our fabulous Western medicine will save us from any kind of really nasty outbreak... because... we want it to?).

We'll have to count for leadership on protecting this planet from a possibly unstoppable and viciously fatal outbreak on a White House that can't seem to keep track of break-ins on itself.

Ironically, this would be an excellent time for "hope" and "change"... we can hope that this isn't "the big one," and it can be contained, which will involve change in American leadership (and that of its usual allies) away from their usual dumb-ass-ery.

Prayer may or may not be ineffective... but it seems like a pretty good idea right about now.

September 20, 2014, Same old

It actually slipped my mind that, two days ago, this blog slipped through its thirteenth anniversary; I suppose I should give it a bar mitzvah, but then, just how old is it in [talking] dog years? Damned if I know.

So many things seem so old and tired (besides my nearly fifty-two year old self).

Anyway, we can start with this Atlantic observation (and of course, hit-piece) of Hillary Clinton (she hasn't gone away either; btw she and I share a birthday). The piece notes Hillary's campaign shtick (including her recent book) are all about playing it "safe," and not coming out with bold policy pronouncements or prescriptions or anything particularly interesting, the money line being "Has America ever been so thoroughly tired of a candidate before the campaign even began?" The piece fails to question why we can believe she wouldn't be the logical continuation of the existing order, meaning Barack Obama's third term/George W. Bush's fifth term/Bill Clinton's seventh term. Since that's what Wall Street wants us to have [note this observation, also from The Atlantic, about how all too often, financial criminals avoid paying back restitution for their crimes in the few instances they even are held accountable any more], we can be reasonably sure that's what we're going to have. Hillary won't rock boats, maybe she'll be even more hawkish in trying to hold the empire together as it falls apart, and probably will be... indistinguishable from her recent predecessors. You'd think even her opponents (many of whom simply object to a woman wielding apparent power, even a dynastic like Mrs. Clinton) would be as tired of opposing her as everyone else is of seeing her, by now. Sigh.

One thing we can expect to continue from either Mrs. Clinton (or whomever instead of her Wall Street decrees is sufficiently favorable it to be permitted to accede to the office) is a continuation of our draconian policies toward swarthy people in general, and those whom we arbitrarily accuse of terrrrrrrorism in particular. If there's a poster boy for what I have been trying to call your attention to here at TTD for lo these years, it would be tortured American citizen Jose Padilla. You will recall that in 2002, Padilla was arrested "on the battlefield" of O'Hare Airport (the whole world is now the battlefield, boys and girls), summarily stripped of his rights, thrown into years of total isolation in a military brig, and then just as abruptly [on the eve of the Supreme Court granting his second habeas petition [the first dismissed on a bullsh*t technicality of "improper venue"] moved to civilian custody and charged, tried and convicted on made-up charges of conspiracy to conspire to maybe make phone calls to bad people, yada yada yada... seventeen years four months in a super-max. Our friend Andy Worthington gives us the details of a court decision by his sentencing judge (Judge Marcia Cooke of federal court in Miami) who, following an appeals court decision that her 17 year sentence wasn't draconian enough and increased it to 21 years. As Padilla is a former Chicago gang banger, but most importantly, he is a Latino who converted to Islam, most Americans probably wouldn't care what happened to him-- no matter how arbitrarily and harshly (and illegally) he has been treated-- even if they actually knew (which, of course, they do not), and even if what happened to him was widely reported (which, of course, it is not).

And as to Scotland, after all the trouble William Wallace went through to get Scotland its freeeeeeedummmmm!!!!... it seems the Scots don't actually want it. They apparently want the same old arrangement they've had for over 300 years... freedom is one thing... but pensions and National Health Service... are quite another.


The Story of
the talking dog:

Two race horses have just been worked out on the practice track, and are being led back into the stable.

After the stable boy leads them into their stalls, the first race horse tells the second, "Hey, did you notice something odd about that guy?  I don't know, he just doesn't seem right to me".

The second race horse responds, "No, he's just like all the other stable boys, and the grooms, and the trainers, and the jockeys – just another short, smelly guy with a bad attitude, 'Push, push, push, run harder…We don't care if you break down, just move it, eat this crap, and get back to your stall".

The first race horse says, "Yeah, I know what you mean!  This game is just a big rat race, and I'm really tired of it."
A stable dog has been watching the two of them talk, and he can't contain himself.

"Fellas", he says.  "I don't believe this!  You guys are RACEHORSES.  I don't care what they say about lions, YOU GUYS are the kings of the animal world!  You get the best digs, you get the best food, you get the best health care, and when you run and win, you get roses and universal adulation.  Even when you lose, people still think you're great and give you sugar cubes.  And if you have a great career, you get put out to stud, and have an unimaginable blast better than anything Hugh Hefner ever imagined.  Even if you're not in demand as a stud, you still get put out to pasture, which is a mighty fine way to spend your life, if you ask me.  I mean, you guys just don't appreciate how good you have it!"

To which, the first race horse turns to the second race horse and says, "Would you look at this!   A talking dog!"

Your comments are welcome at:  thetalkingdog@thetalkingdog.com

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