The Talking Dog

May 18, 2007, TD Blog Interview with Tina Foster

Tina Foster is executive director of the New York-based International Justice Network, a human rights group. Ms. Foster was previously a staff attorney with the Center for Constitutional Rights (CCR), handling coordination of pro-bono attorneys handling Guantanamo detainee cases. Prior to that, she was an associate at the New York office of the Clifford Chance law firm, where she worked on Guantanamo detainee cases pro bono. On May 16, 2007, I had the privilege of interviewing her. What follows are my interview notes, corrected as appropriate by Ms. Foster.

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

Tina Foster: That day I was supposed to fly to Nairobi, Kenya for a three month trip, at the completion of a judicial clerkship. At that time, my apartment was next to the World Trade Center... it was so close to the WTC as to have been damaged as a result of the attacks. Because I was planning on traveling the next day, however, I spent the night with a friend in Brooklyn nearer to the airport. I woke up, and it felt that I was in a dream. For one thing, I had overslept, about which I was glad, because I was supposed to go to the Eastern Mountain Sports store at the World Trade Center to buy a backpack that morning.

I did get to Kenya a week later. There, people knew I was coming from New York, and were extremely sympathetic, having themselves been the victim of terror attacks just a few years before. On September 11th, however, I ran around Brooklyn trying to give blood. Somewhere, in a van in Brooklyn on its way to a blood center, someone had managed to say that the T.V. was showing pictures of people celebrating in Arab countries... I felt like saying that this was probably bunk, but as everyone else was obviously agitated, and it was probably not a good idea to say anything so I didn't. Ironically, I'm actually not eligible to give blood, as I had lived in England during their mad cow disease scare... but I tried anyway.

The Talking Dog: Please tell me about your experiences with the Center for Constitutional Rights with respect to coordinating representation of Guantanamo Bay detainees (and your own detainee representation work)?

Tina Foster: In June of 2004, Clifford Chance was one of around 10 firms that decided to take on detainee representation after the Rasul case. I was very proud of our firm, as at that time, not a lot of other firms were willing to do it. My first Guantanamo (GTMO) case was at Clifford Chance, on behalf of French nationals. Most of the early cases were on behalf of Europeans, who proved to be the most sympathetic clients to an American audience, and were people with families most likely to be familiar with Western legal system, and therefore, were more likely to have actually sought out legal representation.

The case I was assigned drew Judge Richard Leon in the U.S. District Court in Washington. I was one of the first lawyers to appear before him, in a group of cases called Khalid, et al., French nationals who were eventually released. Another group of cases before Judge Leon, Boumediene, Bosnian Algerians, involve detainees still at GTMO.

My initial involvement was filing of the petition and related advocacy... I had generally been interested in human rights matters, and this was most exciting and appealing work. I had a mid-life crisis at age 28, and although I got great litigation experience for a large law firm, handling many things I understand are unusual in that context, nonetheless, I decided to take six months off and volunteered at CCR, to try to recruit more lawyers to take more of these cases.

At CCR, we had received a number of requests- authorizations for representations from family members, again, generally from countries familiar with Western legal systems. But while there were many such requests, there weren't many lawyers, so it was decided that the first thing we'd better do was to get more lawyers on board. Indeed, what I found most impressive about CCR was that it brought the first cases for GTMO detainees in February 2002, when no one else would take them... even at a time when the world did not yet know that the overwhelming majority of those held there would be completely innocent of anything.

I appreciated this even more after I discovered just how difficult it was to get law firms to become involved. Generally, after enough people learned more about what was going on, and how obstreperously the government was behaving, more attorneys signed on. But it was difficult. And so, getting more attorneys to sign on became my specific role.. Originally we had had only 15 cases brought for 75 detainees, while there were over 500 there at the time. Eventually, we ran out of authorizations, and efforts to even get the names of detainees were stymied by the government.

Eventually, a blanket case was brought (John Does 1 through 570) well before the Detainee Treatment Act was passed, which purported to cut off their right to representation. The idea was to try to identify these people, among other methods, by tracking down people in countries with large populations of detainees. Yemen, for example, and Saudi Arabia. I traveled to Yemen, and Bahrain, where I could meet Saudis. I was willing to do this, and (as an Iranian-American dual national) I felt I already had a foot in the Middle East. I was more familiar with the Muslim culture than most Americans. My own background helped me in being persuasive in getting families of detainees to sign up. Getting these peoples’ trust in our legal processes is a very difficult matter, and might be more so by someone less familiar and comfortable.

Because of my dual nationality (among other reasons), I have not been to GTMO, as I wouldn't even bother to try to get a security clearance given current attitudes of the Bush Administration. In my role, I have no access to classified information. So, when I speak to former detainees, their families and so forth, and they tell me the same details that were previously told to attorneys in a "classified" context, I can speak freely about them.

The Talking Dog: In that same context, please tell me of the efforts associated with representation of detainees of the United States in other theaters, notably Kandahar and Bagram in Afghanistan, Diego Garcia in the Indian Ocean, and other locations including but not limited to CIA "ghost prisons" and outsourced detention and torture facilities in such locales as Syria, Egypt, Morrocco and elsewhere, whether by CCR, or other agencies?

Tina Foster: The International Justice Network has filed the first habeas corpus petition for people detained at Bagram, Afghanistan. One of my clients is Yemeni. Neither I, nor anyone else, can explain why he is at Bagram, as opposed to GTMO, or anywhere else for that matter. The average length of time a detainee is at Bagram, before being shipped to GTMO, is 14 months-- at least according to a military source that leaked that information to the New York Times.

My Yemeni client has been there for at least three years, and probably well longer than that. No lawyer has ever been permitted there. Legally, the case we brought is in its beginning stages-- naturally, the government moved to dismiss, based on a lack of jurisdiction. We are arguing that Rasul applies, and confers rights on the detainees there, and the government of course argues that such rights have been extinguished by the Military Commissions Act (MCA).

We argued that the MCA does not apply because no one at Bagram has had a "Combatant Status Review Tribunal", or CSRT, which the GTMO detainees all had (since Rasul, anyway). Now, almost as if by magic, the military announced, two days before a court deadline on this issue, that it has established new CSRT-like proceedings (none of which involve the detainee even present, of course), but that this somehow satisfies the prerequisites for depriving the court of jurisdiction. Thus far, we have two cases, one before Judge Kessler and the other before Judge Bates, both in the Washington, D.C. federal district court, and we are waiting to see if argument will be granted.

The Talking Dog: Let me interject, and ask, whether or not the government has asserted that the Eisentrager case effectively controls the issue (barring court jurisdiction), how would you overcome such an argument?

Tina Foster: The Eisentrager case dealt with prisoners who were already tried and convicted of crimes under military proceedings, albeit possibly irregular ones. Now, the United States government argues that no law applies to prisoners, at all... it can simply make all laws go away, because we are now in a super-special, unique "war on terror" that is different from all wars that have ever been.

Well, the government cannot have it both ways, arguing on the one hand that we are not in a traditional war, so that they don’t have to be bound by the laws of war, but then we are in a “war on terror”, and so normal criminal laws don’t apply either. But this is precisely what the government has been doing.

Getting back to Bagram, that facility is not a detention facility for those held who have been proven to be dangerous terrorists, or captured on the battlefield... indeed, one can ask why people would be sent to Bagram from places like Bosnia and Africa-- why do it? Those people were obviously not captured "on the battlefield", but brought to a facility near a war zone! Why? Because, like GTMO, Bagram is used as a facility outside of any law. We say that the Afghans control it, but this is nonsense-- the Afghans have no say or control there at all. Like GTMO, we have a lease agreement that gives us total control of the place. Well, if we control the place, then shouldn't our law apply there?

Of course, the Military Commissions Act purported to overrule the Supreme Court in Hamdan (which found that detainees from the Afghan conflict were still entitled to Geneva Convention protections) by denying the rights of anyone to assert Geneva Convention rights in court proceedings. Certainly, the government's legal position is that no law applies, and indeed, the government can do what it wants, up to and including killing people there, torturing people to death (as has been documented on more than one occasion), without any remedy at all. Indeed, with no lawful means of redress whatsoever. And so the question is asked in the rest of the world-- and especially in the Arab and Muslim world-- if the United States takes away lawful means of redress... just what do we have left?

Specifically in our case, in the government's motion to dismiss, it has asserted all sorts of new facts that aren't in our petition. This will open the door to a possible factual dispute, which may require discovery, i.e., keeping the cases going. My Bagram cases-- unlike the GTMO cases-- are not stayed.

As to the big picture, people in the Middle East are certainly aware that the CIA kidnaps people, but this had been a dirty little secret and key word "little". It is no longer-- some estimates are that as many as 15,000 people have found their way into American custody in foreign locations intended to be beyond any law. And now, our government actually argues in court that this is all perfectly legal!

Before the "War on Terror", none of us were under the impression that this "never happened"-- but it was quiet-- and relatively rare. Now it is huge, and the government tries to defend it, as lawful, and just. Indeed, we have evolved (if you can call it that) to the point where we talk about torture and indefinite detention without charge or trial as if they are necessary and essential elements of our security.

The Talking Dog: You are, of course, executive director of the International Justice Network... what does IJN do, in general, and specifically, can you tell me what IJN does with respect to asserting legal rights on behalf of those detained by the United States and its allies and contractors pursuant to the "global war on terror"?

Tina Foster: I decided to do the IJN with two major goals in mind. One, was so that I could use the same model I used at CCR to coordinate a large scale legal effort, with different attorneys (many that don't ordinarily do this) and coordinating an alliance of large private firms, solo practitioners, federal defenders, and building appropriate communications tools to manage an effective network of practitioners doing this critical work. We have finally arrived at the point where, collectively, we have comparable resources to the government, certainly in the GTMO detainee area. I think bringing those resources to bear has been the key to a lot of the attention that GTMO matters have received so far, and to the success (such as there has been) achieved. I wanted to use this same model to bring together organizations and individuals that could make a contribution in broader human rights fields.

The second contribution (and goal of IJN I had in mind) was that-- while I could certainly do "the law stuff" just fine (though other people were far more erudite and brilliant at advocacy or writing than I), I could, perhaps uniquely, bridge two culutures, to convince Middle Easterners that they could and should trust an American lawyer to try to have faith in our system, even though it had seemed to have let them down so far. So, the other thing I'd like to have IJN be able to accomplish is to bring together local and regional NGO's from outside the West, to try to use their example to improve Western models... particularly after seeing the unbelievable work being done in places like Afghanistan, Yemen, the Phillipiines and Bahrain by groups with no resources and no help, and yet, accomplishing amazing things... I feel that this presents a great opportunity to try to link these people with resources they need and hopefully the resources to make their voices heard, and indeed, to link people with similar values in the human rights area, to make the use of resources for such networks more efficient and effective.

The Talking Dog: At this point, have you managed, either from their families or any other way, to obtain representation for any individual clients currently detained by the United States, at Bagram, Kandahar, or elsewhere?

Tina Foster: I have co-counsel in the Bagram cases, and we'll see what develops after the intial motions are decided. The Baach Robinson firm in Washington, D.C. (the same firm that filed a damages case on behalf of the Tipton Three) is one of my co-counsel. Other attorneys have expressed interest, but we haven't yet brought cases on behalf of everyone we represent. We have other types of cases in mind, and prepared to go, but they have not yet been filed.

As far as I know, no one else has filed habeas corpus petitions or other cases on behalf of detainees at Bagram or anywhere other than GTMO.

The Talking Dog: Tell us about your recent trip to Afghanistan that became the subject of the New Republic article; how did that get set up, did you get access to the detention facility, and have there been repercussions from that visit?

Tina Foster: Well, no one has access to Bagram. Indeed, you would get shot if you even try to get near it. Even the Afghans have no access to it (though they are allowed in to clean and do other menial work). The prison in Afghanistan I did see-- the Pul-e-Charkhi-- -- was originally a main Soviet prison, and was notoriously awful. With United States funding, a special wing has being built, intended to house Afghan nationals now detained at GTMO and other so-called "War on Terror" detainees. I managed to get into this prison without official permission, at least while the wing was under construction. I understand that 12 people from Bagram have been transferred there, though no one has been given access to it either, and indeed, the intent is to move the Afghan GTMO detainees to "Afghan custody", even though it is really American custody (the Afghans are "being trained" to run the facility by Americans right now).

The hold up on moving the Afghan GTMO detainees there is that the Americans are pressuring Afghanistan to pass special legislation creating a special class of enemy combatants outside of Afghanistan's constitution and existing criminal laws, and Afghanistan, thus far, hasn't been willing to do it. Until Afghanistan ratifies this, or a high level international agreement is reached for transfer of custody effectively doing the same thing, custody won't be transferred... I do not believe that the United States has not transferred a single detainee without a transfer agreement.

As to the magazine article, Harper's had an interest in the work of human rights lawyers willing to travel to Afghanistan and other places to represent Guantanamo detainees. So the reporter (Eliza Griswold) tagged along for about a month... it was challenging, though she is a great reporter and I thought her story was very fair. Of course, now, on top of the other places I've visited, I have a stamp from Afghanistan in my passport – which makes airport security interesting!

The Talking Dog: Tell us about your work with respect to other venues, and I'm specifically asking about the Philippines (from which I understand you are on some sort of watch list vis a vis entering)?

Tina Foster: No one in the United States knows much, or anything really, about the Philippines. It is not a real democracy. The executive uses her alliance with the United States to disregard the will of the people. In the recent Philippine elections, numerous opposition candidates were threatened, and several other activists just disappeared. Thus far, up to 800 lawyers, judges and political activists have been murdered. The government just does it. Every human rights group is aware of this, and every group operating there is under constant threat.

I was part of a group that was the first to publish a report documenting the human rights situation in the Philippines, and I was quoted in Smithsonian magazine as suggesting that the Philippine President is using her alliance with the United States in the so-called War on Terror as a license to kill. It is, therefore, not surprising to learn that I won't be welcome to return to that country.

While I was there, they couldn't actually harm me given my United States passport, but a huge number of Filipinos have been killed. The machinery of the progressive movement that ousted the dictator Ferdinand Marcos still exists, and thus there is an active legal resistance to the increasingly authoritarian rule of the current Philippine government.

The Talking Dog: Can you describe the origins of the legal strategy (and am I correct that this IS the legal strategy!) that seems to focus almost exclusively on the Guantanamo detainees, whom I understand are the minority of those held by our government (a tiny minority, counting Iraq), as opposed to elsewhere in "the pipeline", including of course, Bagram, Kandahar, Diego Garcia and the ghost and black prisons, as well as those "renditioned" elsewhere?

Tina Foster: I do think it was an intentional strategy. GTMO is the easiest detention facility to understand: it is so far from the theater of battle, and so close to the United States. Furthermore, it is sexy, as it was the venue for a Jack Nicholson/Tom Cruise movie! It is certainly more accessible and comprehensible than Bagram, or Abu Ghraib (at least, before the photos came out).

Legally, it is also the easiest challenge, because it was the easiest to demonstrate that the United States is in full and absolute control of the place. You could also say that the in full and absolute control of Bagram, or other places, of course. But GTMO has become the symbol of U.S. detention policy, and that has not changed. Indeed, the policy itself has not changed-- at all, even after the government lost the Rasul case... it's just that the government did a better job of hiding detainees and abuses elsewhere.

There is a fear-- a wide fear among many in the human rights community-- that if the issue expands too far beyond GTMO, the public will not be able to comprehend the full breadth of the problem, and it will be overwhelming and undermine the support that has been won so far.

From my perspective, personally... I wish I had done this (bringing legal proceedings to challenge the legality of detentions at Bagram) even earlier.

The Talking Dog: What message would you say people need to know, about other American activities besides Guantanamo, and what, if anything, can we do about it, with all the publicity (and legal action) pertaining to Guantanamo, and seemingly conceding that those held elsewhere are held completely without recourse (even to Geneva Convention rights, notwithstanding that the Supreme Court has held that the Geneva Conventions clearly apply everywhere we hold anyone)? What can the rest of us do about this? Is anything pending in Congress about any of this?

Tina Foster: We need to restore the rule of law. While I favor closing GTMO, that does not solve the problem. The problem has, thus far, been transferred elsewhere, and still exists, and closing GTMO without doing anything else would just move the problem out of sight. As a people, we need to decide whether or not we want our government and military to disregard the rule of law as long as they do so in someone else's country.

What has been so infuriating to people in the Middle East and the rest of the world is that double standard regarding human rights and fundamental freedoms. For U.S. citizens at home, we ordinarily provide a panoply of legal rights... but the message is that other people are less than human-- they don't even deserve the most basic of human rights. This double standard is so galling to so many people, that it has lowered the standing of the United States in the eyes of many.

Right now there is nothing specific in Congress addressing these issues – other than in the context of Guantanamo. But the to the extent that there are bills in Congress that will restore the rule of law by restoring the rights that have been taken away-- even a restoration to rights as they existed just before September 11th-- that will go a long way toward restoring our standing.

The Talking Dog: I join all my readers in thanking Ms. Foster for being so generous with her time and for giving us such an eye-opening interview.

Readers interested in legal issues and related matters associated with the "war on terror" may also find talking dog blog interviews with attorneys Brent Mickum, Marc Falkoff H. Candace Gorman, Eric Freedman, Michael Ratner, Thomas Wilner, Jonathan Hafetz, Joshua Denbeaux, Rick Wilson,
Neal Katyal, Joshua Colangelo Bryan, Baher Azmy, and Joshua Dratel (representing Guantanamo detainees and others held in "the war on terror"), with attorneys Donna Newman and Andrew Patel (representing "unlawful combatant" Jose Padilila), with Dr. David Nicholl, who spearheaded an effort among international physicians protesting force-feeding of detainees at Guantanamo Bay, with physician and bioethicist Dr. Steven Miles on medical complicity in torture, with law professor and former Clinton Administration Ambassador-at-large for war crimes matters David Scheffer, with former Guantanamo detainees Moazzam Begg and Shafiq Rasul , with former Guantanamo Bay Chaplain James Yee, with former Guantanamo Army Arabic linguist Erik Saar, with law professor and former Army J.A.G. officer Jeffrey Addicott, with law professor and Coast Guard officer Glenn Sulmasy, with author and geographer Trevor Paglen and with author and journalist Stephen Grey on the subject of the CIA's extraordinary rendition program, and with journalist and author David Rose on Guantanamo related issues to be of interest.