The Talking Dog

March 8, 2010, TD Blog Interview with Ellen Lubell

Ellen Lubell is a partner at Tennant Lubell, a law firm in Newton, Mass.  Ms. Lubell and her partner Doris Tennant represent Abdul Aziz Naji, an Algerian national detained at Guantanamo Bay, Cuba. On February 18, 2010, I had the privilege of interviewing Ms. Lubell by telephone; what follows are my interview notes, corrected as appropriate by Ms. Lubell.

The Talking Dog: The customary first question: where were you on 11 Sept. 2001?

Ellen Lubell: On 9-11, I was in my office in Newton, Mass., when a colleague came in and said that a plane had hit the World Trade Center.  We turned on the TV, watched the news briefly, and then I started trying to reach my mother and other relatives in New York City to see if they were o.k. I kept trying most of the morning and finally succeeded. I picked my children up from school at midday and spent the rest of the day with them, talking about what had happened.

The Talking Dog:   Please identify your GTMO client by name and nationality, and tell us something about his personality, family, circumstances of his capture, what, if anything, he has been accused of doing (such as "accused of staying in same guesthouse as someone who might be bad"), or anything else you believe of interest about him?

Ellen Lubell: Our client, Abdul Aziz Naji, is from Algeria. His family is there and we’ve spoken with them a number of times.  Aziz is 34 and he has been imprisoned at Guantanamo for nearly eight years.  He’s very likeable. He is an observant Muslim. Despite having attended school only through the sixth grade, he is bright, insightful, and has an excellent memory.  He readily expresses his feelings and views on issues. He is extremely appreciative of our efforts on his case and lets us know this frequently.  He loves children and very much wants go get married and have his own.

When Aziz was living in Algeria, around the time he was 17 or 18, he and his brother were attacked by a group of terrorists.  After that, his brother left the country and so did Aziz, after completing his required military service.  He went first to Mecca on a pilgrimage, and then traveled to Pakistan to perform "zakat"- charitable work – as is required of observant Muslims. Aziz worked for a charitable organization in the mountains of Kashmir for only a few months when he accidently stepped on one of the many landmines still buried left in this war-torn region. The explosion blew off the lower half of his right leg.  He was taken to a hospital in Lahore, where he was treated, and over the course of a year received rehabilitation and a prosthetic leg.  He decided then that he would try to find a wife. He was directed by friends to another Algerian man living in Peshawar, who was known to be helpful in arranging marriages.  Aziz visited the man and while he was there, the man’s house was raided by the Pakistani police. The raid may have been the result of the bounties that were offered by the US at the time to local people if they identified possible “terrorists” among them. The Pakistanis interrogated Aziz, concluded that he had done nothing wrong, and told him they would release him. Instead, they turned him over to the Americans. Aziz was taken to the US prison at Bagram, Afghanistan, where he was tortured, and then on to Guantanamo.

When we took Aziz’s case, we were provided a file from the U.S. Department of Defense that included a list of allegations against him, with alleged “confessions.” None of the allegations or confessions was backed by any credible evidence. Ultimately, our view that the U.S. had no case against Aziz was validated by the Obama Administration, which cleared him in June 2009.
The Talking Dog:   Please tell me your impressions  of Guantanamo "the place"... the military personnel you have encountered, the physical place, the "gestalt" or anything you believe or note? 

Ellen Lubell: My reactions to Guantanamo have been mixed.  I’ve encountered both pleasant and unpleasant people there.  I don’t feel particularly welcome, as the military personnel on the base know what we and the other “habeas” lawyers are doing, but we’re treated with civility. Our interactions with the guards are often tense. The landscape is green and hilly and the views out to the ocean are beautiful. Unfortunately, when you turn around from the ocean view, you see the vast windowless prison complex surrounded by barbed wire, secured gates, and guard towers.

I like visiting Guantanamo, however, because that’s where Aziz is. I’m pained for him because he’s there, but our visits with him include wonderful moments. In addition to discussing his case, we talk about our families, we share food, imagine the future, and surprisingly-we laugh a lot. Aziz has retained a marvelous sense of humor. Perhaps that’s what has helped him survive.

The Talking Dog: I understand that your client (Mr. Naji) has been "cleared” by the Obama Administration.   Please tell me the status of his litigation(s)... such as "habeas stayed dead in tracks because of purported clearance" or whatever else is accurate.

Ellen Lubell:  The U.S. Government requested that our client’s case be stayed on the theory that the US is prepared to repatriate him to Algeria and this is no different a “remedy” (transfer out of Guantanamo) than he would obtain by prevailing in his habeas case. We don’t agree. It is critical that our client and other detainees like him have an opportunity to challenge the legality of the detention they have suffered for nearly eight years at the hands of the US government and to seek exoneration. The right to challenge their detention was hard fought for years and finally granted by the U.S. Supreme Court in the Boumediene case. The situation for our client is made more difficult by the fact that he fears forcible repatriation to Algeria, so the government’s “remedy” is not at all a viable remedy as far as he is concerned. Our judge ruled for the government on this issue, however, so our client’s case is stayed.

The Talking Dog:   You and your partner Doris Tennant participated in an effort by the aldermen of your city of Newton, Mass. to join Amherst, Mass. in proposing to request the US congress to lift the ban on admitting cleared detainees in the US and, if they do, to welcome your client (symbolically if nothing else), to live in Newton. I understand your client fears persecution or worse should he be returned to his native Algeria.  Perhaps unsurprisingly given what a number of commentators are rightly calling "terrorist derangement syndrome" resulting in some level of popular opposition (i.e. most Americans simply hear that the government has accused someone of being a terrorist, and with nothing more, simply conclude that this is the end of the matter, even where the Government itself tells us that it was wrong), the Newton aldermen were put under enormous pressure by opponents in the city and withdrew the resolution.  Obviously, the fact that the debate over the resolution coincided with the Christmas underpants bomber probably didn't help much.  Notwithstanding how many times you've been asked this question, what do you think went wrong, and what advice would you have for the next municipality who considers such a proposition?

Ellen Lubell:  My understanding is that the opposition to the Newton resolution was quite small, but extremely vocal. Many residents of the city who supported the resolution were either shocked at the vitriolic and blatantly anti-Muslim ranting and didn’t know how to respond, or they were cowed into silence. When those who supported the resolution did finally speak out, it was too late and the resolution was withdrawn.

It’s difficult to know what could have done differently for the resolution to have succeeded. Clearly, more planning was needed. We probably should have sought advice from towns beyond Amherst that attempted such a resolution. We probably should have engaged more with clergy in the city and secured support from at least a few individual clergy, if not congregations. I like to think that a greater opportunity for public debate might have been helpful, but I’m not sure it’s possible in this country at this period in time to have a civil debate about many of the issues raised by Guantanamo. I wish Newton’s human rights commission, which strongly favored our efforts, could have played a greater role.

We also faced a problem from The New York Times. The Times has an online resource called the "Guantanamo Docket,” which purports to include in database form information from US Department of Defense records, as well as information about the detainees’ court cases and media reporting. In fact, the Docket includes only the U.S. Department of Defense records. Worse, it provides no context in which to understand the records. For example, it does not explain that the information was selected for public disclosure by the Department of Defense, that it was comprised of summarized and redacted portions of transcripts, that it included only preliminary conclusions of the government, and that it was outdated and did not represent a current factual record. The information that was posted on the Docket about our client was picked up by the opposition group in our community, interpreted as accurate and current, and provided fuel for the fiery reaction. I’ve contacted the Times about the misleading nature of the information on the Docket and the reporter with whom I spoke clearly understood the problem. I’m hoping the Times will now modify the Docket, at least to provide a context within which to interpret the information that’s posted. 

The Talking Dog:   Can you tell me what efforts you have made other than with respect to Newton, whether with respect to our own national government or the governments of other nations (and whether this includes Algeria) with respect to resettling Mr. Naji?  How have those been received?

Ellen Lubell:  Two years ago we petitioned Switzerland for asylum for our client, with the assistance of several Swiss asylum attorneys. These attorneys had approached the Center for Constitutional Rights (CCR) and offered their assistance because Switzerland has a relatively unique law that permits applications for asylum from people outside the country. The Swiss attorneys selected our client and two other detainees. All three cases were initially denied (as we all expected), but we then appealed.  The Swiss Appeals Court held in our client’s case that the lower court had not provided due process for our client by failing to take into consideration sources of information about him other than the outdated information that had been disclosed years earlier by the U.S. Department of Defense. The Swiss Appeals Court sent the case back to the lower court for reconsideration. We are now waiting for a decision from the court. We have also made inquiries with other countries in Europe and Central and South America, but without any success so far.
The Talking Dog:   We're just over a year into the Obama Administration; my college classmate the President has now unquestionably blown the promise of "closing Guantanamo in one year."  Let me ask you to predict where we'll be, say, in one year's time (when we will probably have more Republicans, if not an outright majority in one or both houses of Congress) or in three years (when it is certainly not inconceivable we will see a Republican in the White House). Will most of the over 100 "cleared" detainees be released "somewhere," shifted to the Thomson prison in Ilinois, or something else?  Will many of the 50 "too tortured to try even in a kangaroo court, but too politically dangerous to release" have had their day in habeas court, and joined the "cleared for release?" Will any GTMO detainee see a civilian trial, given the NIMBY hysteria of even having such a trial?  Or, as I fear, will we still be in the unfortunate holding pattern we now seem to be in?   Also... given the troubling doctrines of "indefinite detention" and "liquidation of enemies of the state," along with the de facto legalization of torture and murder if done by high enough officials, do you have a broader view of where our human rights laws (and standing in the world) is going?

Ellen Lubell:  I’ve stopped believing that I have any idea of what will happen to the men in Guantanamo. I would never have believed when we took on our client’s case four years ago that we would be where we are now. I try to be optimistic, but part of me despairs that this country will ever again be a leader of human rights. I hope that in one year’s time the "cleared" men like our client will be able to leave Guantanamo, but I don’t know whether they will be resettled in a safe place or will simply be transferred into a prison in another country.

As to the Thomson, Illinois prison, it’s not clear yet which of the men would be transferred there. Would they transfer men like our client who have never been charged with a crime to rot in a supermax prison? This would be unthinkable except for the fact that it is precisely what happened in Guantanamo, albeit off-shore. Perhaps Thomson will be only for men who have been charged and for the 50 or so men who have not been cleared and will continue be detained indefinitely without charge. The fact that the Obama Administration intends to hold this latter group is egregious. I have listened closely to every argument I’ve heard in favor of indefinite detention and have not heard a single one that does not ultimately come down to fear and a lack of confidence in our own judicial system..

The Talking Dog: How would you characterize media coverage of (1) Guantanamo in general, (2) your representation of your client, and (3) the Newton resolution, and its aftermath?

Ellen Lubell:  Media coverage of Guantanamo has been variable—from great to horrendous.  In my view, the New York Times editorial pages have been consistently thoughtful and intelligent and address important questions; Carol Rosenberg of the Miami Herald has been excellent; The Wall Street Journal and Fox News have been one-sided and engaged mostly in fear-mongering. I was disappointed in the quality of coverage of the Newton resolution by our local newspaper, the Newton Tab. The Boston Globe has run a few stories about our work that have been reasonably accurate, but some of the television reporters who have interviewed us have been woefully ill-informed. I did, however, have a good interview with Ari Shapiro of NPR. He was smart, insightful and understood the issues. Of course all the media has been hampered by the paucity of information released (or permitted to be released) by the US government.
b>The Talking Dog: How did you first get involved in Guantanamo representation, and how has it effected your legal practice or your life in general?

Ellen Lubell:  In 2006, after the media reported that three of the detainees had committed suicide, my partner Doris and I decided as a matter of conscience that we had to do something.  Neither of us is a constitutional lawyer or even a litigator, but we were encouraged by colleagues at WilmerHale, who had already gotten involved in representing a group of detainees, to contact CCR and inquire about being assigned a client. We did so, and CCR explained that although representing a detainee would be very expensive (aside from our time), there would be a great deal of support available to us from our fellow attorneys. We decided to forge ahead and were assigned a client by CCR.

I’ve been changed in many ways by the experience. I’ve been privileged to work with some of the most amazing lawyers in the country. I’ve had to become conversant with areas of law that are entirely new for me – constitutional law, federal court procedure, international law, and asylum law. I no longer keep my political opinions to myself. I no longer look at problems around me and think someone else will fix them. I’ve become terribly skeptical of everything I read in the newspaper. Most importantly, I’ve been changed by getting to know our client and his family. While it’s easy to see all the ways the life of a Jewish woman from Newton with a law degree differs from that of a young Muslim man from Algeria with only a primary school education, we’ve discovered so many things we have in common. We’ve been able to enjoy each other’s company, disagree and laugh, and trust each other. Despite the struggle, this is something I will value forever.

 The Talking Dog: I join all of our readers in thanking Ms. Lubell for that most interesting 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 prosecutor Darrel Vandeveld, with former Guantanamo combatant status review tribunal/"OARDEC" officer Stephen Abraham, with attorneys Ramzi Kassem, George Clarke, Buz Eisenberg, Steven Wax, Wells Dixon, Rebecca Dick, Wesley Powell, Martha Rayner, Angela Campbell, Stephen Truitt and Charles Carpenter, Gaillard Hunt, Robert Rachlin, Tina Foster, Brent Mickum, Marc Falkoff H. Candace Gorman, Eric Freedman, Michael Ratner, Thomas Wilner, Jonathan Hafetz, Joshua Denbeaux, Rick Wilson,
Neal Katyal, Joshua Colangelo Bryan, Baher Azmy, and Joshua Dratel (representing Guantanamo detainees and others held in "the war on terror"), with attorneys Donna Newman and Andrew Patel (representing "unlawful combatant" Jose Padilila), with Dr. David Nicholl, who spearheaded an effort among international physicians protesting force-feeding of detainees at Guantanamo Bay, with physician and bioethicist Dr. Steven Miles on medical complicity in torture, with law professor and former Clinton Administration Ambassador-at-large for war crimes matters David Scheffer, with former Guantanamo detainees Moazzam Begg and Shafiq Rasul , with former Guantanamo Bay Chaplain James Yee, with former Guantanamo Army Arabic linguist Erik Saar, with former Guantanamo military guard Terry Holdbrooks, Jr., with law professor and former Army J.A.G. officer Jeffrey Addicott, with law professor and Coast Guard officer Glenn Sulmasy, with author and geographer Trevor Paglen and with author and journalist Stephen Grey on the subject of the CIA's extraordinary rendition program, with journalist and author David Rose on Guantanamo, with journalist Michael Otterman on the subject of American torture and related issues, with author and historian Andy Worthington detailing the capture and provenance of all of the Guantanamo detainees, with law professor Peter Honigsberg on various aspects of detention policy in the war on terror, with Joanne Mariner of Human Rights Watch, with Almerindo Ojeda of the Guantanamo Testimonials Project, with Karen Greenberg, author of The LeastWorst Place: Guantanamo's First 100 Days, and with Charles Gittings of the Project to Enforce the Geneva Conventions to be of interest.