Who is The Talking Dog?

The Talking Dog

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

He ain't The Man's best friend

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.


September 11, 2014, Depends on what the meaning of Is Is... er, ISIS


Did the President's Big Speech [TM] threatening to kick ass and take names re: "the Islamic State[TM]" bring back that awesome 9-11 spirit? Because Paranoia Is Patriotic [TM].

It's That Day [TM] all over again. Just forty-one years ago on 11 September, a CIA-sponsored coup d'etat military junta that the United States was happy about toppled the democratically elected government of Chile and then murdered that nation's rightful president Salvador Allende President Salvador Allende committed suicide.

And, of course, it is just two years after Benghazi [TM].

In case you're wondering just what these seemingly disparate (or not so disparate) events have in common, they are all what happens when the empire bites off just a little more than it can chew, and the costs of maintaining garrisons in over 140 countries finally exceed the value of sucking those over 140 countries dry-- a point we may not have reached at the time we engineered the overthrow of Allende, but have certainly reached now-- and as such, the empire starts to reap the seeds of its own destruction that are intrinsic to it being an empire.

Yes, it's only been thirteen years since the ultimate Rube Goldberg-esque combination of clusterf***s imaginable (for those convinced the whole thing was some kind of inside job-- to you, I ask, do you really attribute that level of competence to the people to whom you are attributing it?) Then again, maybe not so fast... please feel free to look at my own more contemporaneous take, called "Let's roll: alternative version.." Whatever actually transpired (as opposed to what we are told transpired), the events just thirteen years ago today have been consistently used to justify the necessary internal crackdown on the rubes in the imperial mother country which we have been enjoying these last thirteen years. Yes, a few irregulars mostly from Saudi-- the principal energy supplier of the empire-- caused a great deal of trouble, and set quite a few things in motion that, in a political vacuum, appear to still be in motion.

Even now, polling shows that, while Americans have no faith in their President, they still want him to blow sh*t up (as long as its foreign).

In short, game, set, match: democracies are about reasoned discourse, and tyrannies are about appeals to raw emotion. Which one are we about? Don't answer that.

Thirteen does not appear to be the charm re: this 9-11 thing. I have no grand insights. And if I did, they would be lost on Americans anyway, it would seem.

August 14, 2014, Rock [star] paper scissors

One wondering what would take the situation in Ukraine (now featuring a Russian aid convoy on its way to Eastern Ukraine which, as Brother Dmitry observes, will likely be delayed or outright barred from entry while the Ukrainians figure out how to shake it down) off of the front page, might think, "the situation in Gaza."

There, of course, a tentative cease-fire seems to be holding, as both sides may have achieved their respective political ends from pummeling Palestinian civilians (or in the case of Hamas, getting them pummeled), fulfilling Clausewitz's famous axiom that war is just politics by other means. But what could take that off the front page?

Perhaps events in Iraq, where long-time unreliable American puppet Iraqi prime minister Nuri al-Maliki finally resigned amidst pressure to have someone else take that role, as the "Islamist State of Syria and Iraq" or "ISIS" (sometimes known as ISIL, sometimes known as the latest group of Saudi/Qatari-backed extremist nuts to overrun an already bad neighborhood) as the humanitarian situation worsens.. and American airstrikes, air drops (which Brother Dmitry notes will hopefully help the Devil worshippers) and shit.. which will probably help our friends in Kurdistan.

Now that seems awfully impressive... I wonder what could take the possible reentry of this country into a war in Iraq off the front page?

Of course: big celebrity news, specifically, Mortis Mork (apparently, at his own hand). While I liked Robin Williams just fine, his suicide wasn't, in my view, even the premier celebrity death of the moment, notwithstanding that in terms of media coverage, it utterly and totally blew away the death of the much more culturally important Lauren Bacall (our old neighbor in Greenwich Village, btw) just a few weeks short of her 90th birthday.

But hey... being disposable is the highest American value is it not? And hence... rock star smashes scissors and the front page of the paper! (We'll have to do something to keep Ferguson, MO out of the papers and air-time soon too... while martial law demonstrations, such as last year's Boston Marathon false-flag attack terrorist bombing and the resultant lock down of the nation's tenth largest metropolitan area are useful in their own right... we don't want to make it too obvious for the rubes.)

Anyway, you didn't think our highest value was breathable air, did you? My own lungs are finally filling up with crappy American air again after a brief lungs-clearing sojourn to our neighbor to the North, to compete in my first international event, Saint John, NB's Marathon by the Sea (running it being the easy part, compared to the 11 hour drive each way).

Oh well... this has been Rock [star] paper scissors. Now back to you, Wolf Blitzer!

August 4, 2014, Happy birthday

It's (my college classmate) President Barack Obama's 53rd birthday... I hear he's keeping a low profile for the occasion.

Given the way things are going... understandable move.

July 21, 2014, Rashoman

Regarding the most recent Malyasian Airlines disaster (maybe God just doesn't like that airline?)... as he does with so much going on in our world, Brother Dmitry explains it all for you, in this brilliant thought experiment. Bottom line: now that we are safely thirty years beyond 1984, aside from everything being "doubleplusgood"... we apparently no longer need ask for "evidence" from those purporting to "report" the "news." We are simply provided the regime's narrative, and voila, everything is settled for us. No further thought needed. In this case, we are at war with Eurasia; we have always been at war with Eurasia John Kerry tells us that Putin and Russia are eeeeevil, and have now taken their eeeeevil to shoot down a civilian airliner, either at their own hands or at the hands of their allied separatist rebel friends in Eastern Ukraine near Donetsk... the only problems with this are the various pieces of evidence (i.e., the "pro-Russian separatists" lacked the means, motives, opportunities or MOs to do this, whereas the Ukrainian regime had all of the above)...

Dmitry himself suggests his own explanation is but a thought-experiment, and you (whomever you are), should consider the evidence on your own terms. But alas, John Kerry's job (as it was Hillary Clinton's before him) seems to try to draw Russia (or someone) into some kind of broader war that, hopefully, will become the kind of (magically non-nuclear, or at least nuclear where "our side" wins) World War that completely distracts our addled (and, as recent events show, clearly not very bright) population from their domestic woes (an ongoing economic contraction, an income/wealth distribution that would make most banana republics gag, health-care costs exploding even as health care "outcomes" continue deterioriating, the full brunt of "Obama-care" ostensibly finishing off any possibility of growth in full-time employment, etc., etc.). Thus far, at least, thankfully, Mr. Putin and his minions, somewhat addled themselves as they are by recent developments, still apparently refuse to take the bait.

BTW... in a similar note, we should probably recall that the current Israeli incursion into Gaza originated in a stepped up assault by Israel against Hamas in supposed retaliation for the murder of three Israeli teenagers... but you'll excuse me if I don't recall any "evidence" linking Hamas (or for that matter anyone in particular) to the murders of the three teens. No question that Hamas was suspected... indeed, that organization may well have had the means, motives, opportunities or MOs to do it... but I have still not seen any evidence linking Hamas to the deaths of Naftali Frankel, Eyal Yifrach and Gilad Shaar... although, without doubt, the stepped up assault on Hamas (razing of buildings, arrests of officials, etc.) did seem to coincide with Hamas engaging in stepped up rocket fire towards Israel, which has culminated in the current Israeli assault against Gaza (which has now managed to kill hundreds of Palestinians, and, for a change, a couple of dozen deaths on the Israeli side as well) ... has anyone noticed how uncritically we have been trained to accept the premise that Hamas was somehow responsible for the (supposedly) precipitating event, the specific murders of three Israeli teenagers? It's now a reflex. (As with the Ukrainian situation above, I join Dmitry in suggesting "consider the evidence yourself"... Hamas may well have been responsible for the murders and pro-Russian separatist responsible for downing the airliner... I'd simply rather not take these things completely on faith, which is how they are being presented.)

Kind of how, oh, uncritically we have accepted the guilt of men held at Guantanamo Bay, notwithstanding that, so far at least, none of them have been tried or found guilty of anything specifically associated with the 9-11 events (and of course, all but a handful have never been charged, let alone tried, for anything at all... and yet, their guilt is simply assumed.)

God knows, as we quickly approach 100 years since the commencement of the Great War... which, to this day, the full causes of the First World War remain in dispute, it was agreed that it was "a series of unfortunate events" (many of which were completely half-assed, including a belief by everyone involved that any conflict would be quick and decisive)... maybe it's time we recalled that "our betters" didn't know what the f*ck they were really doing then... and we have no reason (let alone "evidence") that they do now.. and maybe we should start using our own minds for a change, and demanding actual evidence for premises before accepting them... particularly when the consequences are likely to be grave and catastrophic?

Just saying.

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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