The Talking Dog

January 12, 2011, TD Blog Interview with Laurel Fletcher

Laurel Fletcher is a Clinical Visiting Professor of Law at Yale Law School. She is also a Clinical Professor of Law at the University of California, Berkeley, School of Law (Boalt Hall) and is director of the school’s International Human Rights Law Clinic. She is active in the areas of transitional justice and humanitarian law, as well as globalization and migration. Before joining the Berkeley Law faculty in 1998, she practiced complex civil litigation, including representing plaintiffs in employment discrimination class actions. She is the author, with Eric Stover, of “The Guantanamo Effect: Exposing the Consequences of U.S. Detention and Interrogation Practices,” which provides the findings of a two-year study of former detainees who were held in U.S. custody in Afghanistan and Guantánamo Bay, Cuba. She earned a B.A. from Brandeis University and a J.D. from Harvard Law School.  On December 9, 2010, I had the privilege of interviewing Professor Fletcher by telephone.  My interview notes, as corrected by Professor Fletcher, follow.

The Talking Dog: Where were you on Sept. 11. 2001?

Laurel Fletcher: I was at home in Berkeley, California. I got a call from a friend who wanted to know if my brother- in- law-- who lived and worked in New York City-- was o.k. Well, why shouldn't he be?, I thought. In the chaos that morning, no one knew where anyone was for a while. My brother in law was fine, we learned eventually. However, my partner was flying home from New Orleans, and was in the air that morning. The more personal impact of that day on me was the five days that it took him to get home from where the plane was forced to land in New Mexico via his parents’ home in Boulder, Colorado and then an Amtrak train back to the Bay area. My recollection of the events of that day is between trying to figure out where he was and how he would get home and then trying to make sense of the events themselves.

The Talking Dog: Can you tell me what led you to the project that became "the Guantantamo Effect" (and a bit about its methodology)? I understand that you interviewed 62 former detainees in 9 countries, as well as attorneys, government officials, etc.

Laurel Fletcher: In the summer of 2006, Patty Blum, then with the Center for Constitutional Rights, and a founding director of Berkeley's International Human Rights Law Clinic, was talking to me about our work. She said that there was a real need to know what was happening to Guantanamo detainees who had been released. Habeas lawyers were getting more notices from the government that their clients were to be transferred to their countries of origin. Attorneys feared that a number of released detainees were in danger of being abused by their home governments. At that time, we expected to see more transfers-- and we did-- but none of the advocates at that time had a clear picture of how detainees were being treated after their release.

Eric Stover, director of the UC Berkeley’s Human Rights Center, and I decided to do an empirical study to try to answer this question. We felt we could do so because we had done previous studies of the effects of war on individuals and communities. The issue of Guantanamo certainly related to a conflict situation, but was different from our past work in the sense that it did not involve a civil war, but nonetheless, involved an armed conflict. Unlike our other work, there was an explicit United States government role, and the whole subject was controversial. In this case, we thought it appropriate to look at the actions of our own government, and how it conducts itself in combating the threat of terrorism.

We interviewed 62 detainees and about 50 others who were working in and around the detention system, including former American government officials. We also interviewed former guards, interrogators and so forth, who served in Afghanistan or Guantanamo. In addition to those who served in the government or military, we interviewed a number of habeas attorneys and representatives of human rights organizations active on the issue. We were trying to get a meaningful picture of "the Guantanamo experience." Our first concern was doing so based on the perspective of former detainees.

We knew that the government had framed this population as "the worst of the worst", but then, was steadily releasing them. Despite the best efforts of habeas attorneys, only a little bit of detail as to who these men were, what they had done (or not done) and how they were treated was coming out publicly.

Our goal was to address two main questions: (1) what was the nature of "the Guantanamo experience," and (2) what was the impact of that experience on the detainees, their families and their communities. We were looking to see what meaning former detainees had given to the experience and what impact the experience had exerted on their lives.

And while we were not trying to determine the “forensic” truth of what former detainees told us, we did try to establish the credibility of common patterns. We "triangulated" the information that former detainees told us by and comparing it to the government's own reports and other NGO reports and accounts.

The Talking Dog: What struck you as the most troubling discovery about what you learned from this project-- be it, the specific treatment these men received while in the custody of our government, the treatment received after (including the lack of compensation, apology, or even acknowledgment that anyone has been wrongly held), the response and reaction of our own government, the arbitrary cruelty of the whole thing... or anything else? Without necessarily identifying the individual, did any individual's response (whether in writing, in person, recorded, or however taken) strike you as particularly of note, and of course, if so why?

Laurel Fletcher: There have certainly been reports of abuse at Guantanamo, as well as about the flawed screening process in Afghanistan where "enemy combatants" were supposed to have been captured. Certainly, none of that was "new".

The "new" information was about what happened to these men when they returned home. They arrived at Guantanamo in the first place as a result of a flawed screening process. No one we interviewed was so much as charged, let alone convicted of a crime. None have received so much as an apology or even an acknowledgment (from our government or their own) that they were captured in error. The men we interviewed were, as best I recall, held an average of over three years and then released.

But the Guantanamo experience, such as it is, did not end once these men returned home. The experience continued to impact them negatively. Only 6 of the 62 men we interviewed had permanent employment. Around two thirds of the men reported suffering from had psychological problems they attributed to their time in Guantanamo. They found it hard to reintegrate with their families-- they had been gone for years, and had to be re-introduced to their own children, some of whom they had not seen since infancy. They found it difficult to resume their role as head of their households, without incomes. During their absence, often, their families had gone into debt, and these men found they have no ability to re-start their lives. And this was true whether they were small shop owners, or farmers, or taxi drivers... they found their capital gone, no jobs, and no ability even to borrow money. Their own government wouldn't clear their name, and neither had ours, and so they came home with a cloud of suspicion. This was not a universal situation, but it was surprisingly common, and this seemed to be true regardless of country.

And of significance, none of these men were subject to the popular media's description of the harshest “enhanced interrogation techniques.” practices that led to "ruined detainees"-- none were the so-called "high value" detainees, none reported they had been water-boarded or held in the harshest conditions. These men simply went through the system. None were deemed "highly significant" by theier captors. Still, over half talked about abuse during their interrogations, although many reported they did not have a problem with interrogators. In fact, some said that their interrogators did not understand why they were in Guantanamo.

So given that, the question is, why are these men still so damaged? It caused us to take a look at illegal torture and cruelty in a different way. The men reported a lot of repeated exposure to individual methods, which, when used in tandem with other methods and conditions-- and they were-- might well cross over the line to torture. The cumulative effect of harsh conditions, combined with cruel and often arbitrary punishments (solitary confinement of up to 30-days for the most minor of infractions, for example) could have caused long term psychological problems. We term this the “Guantanamo Effect,” and there hasn’t been enough attention paid to the harm that can come from subjecting captives to extremely harsh conditions over an extended period of time.

The Talking Dog: You've studied human rights issue associated with such matters as the aftermath of Hurricane Katrina and the 2004 tsunami, forced labor within the United States, and other issues pertaining to the Dominican Republic and Bosnia, among other places. Do you have a basis for comparison with respect to what you have researched and discovered with respect to these other contexts for the Guantanamo "experience" (or Guantanamo Effect" as your book is called)? Among the worst abuses suffered by people whose experiences you've encountered... where would you place the former GTMO (and let's throw in Bagram) detainees... and where would you place the current and ongoing GTMO/Bagram detainees in the broader context?

Laurel Fletcher: I will resist the arc of the question to "rank" the abuses described against each other; a human rights abuse is a human rights abuse. In terms of the disruption of people's lives, whether it was in terms of discrimination in the Dominican Republic, or the access to assistance after Katrina... all of these events disrupted people's lives. Is there a measurement of some metric applicable to all of these situations?

A depredation of human dignity causes harm, and that harm can manifest in different ways. To the extent the harm is a result of state-sponsored violations of rights, they have that in common. Nonetheless, each of those situations had differences and similarities.

The Talking Dog: Let's talk a bit about the guy who it just so happened went to school with both of us (he was in Columbia's class of '83, as was I, and in Harvard Law School's Class of 1991 ... where you were a year ahead of him)... that guy being, of course, Barack Obama, President of the United States. Your book closes at an optimistic moment, to wit, the apparent end of the Bush era just before Barack Obama took office. The book proposes the creation of a non-partisan commission vested with subpoena (and presumably, criminal referral if not indictment) power, designed to ferret out exactly what happened with respect to American detention policy, particularly the extent that laws were violated. I take it that, two years into the Obama Administration, it's pretty clear that President Obama's "look forward not backward" record thus far makes clear that that's not going to happen any time soon, correct? Do you have any "alternative" proposals, that you think, in context, have say, a greater than zero chance of being implemented by the Obama Administration... or, like me, do you fear we will have to wait for yet the next Administration-- or the courts-- for an ultimate "solution" (short of the eventual death by natural causes of the last GTMO prisoner, or perhaps, the "end" of the "War on terror" or at least the Afghan component of it)?

Laurel Fletcher: Although like you, I remember him in one of my classes, I've certainly gotten a better sense of his record as President than I do of him personally. From the perspective of detainees, there has certainly been a disappointment.

Still, one of the more interesting aspects of the recent Wikileaks disclosure is that the Obama Administration is actually doing a lot behind the scenes to try to resolve some of the key questions, particularly, about transferring detainees to other countries when they can't be returned to their own country because they may be tortured. Quite frankly, the Obama Administration’s record on this has been much better than the Bush Administration's; the Obama Administration has been getting transfers to such third countries, and that is significant.

Nonetheless, there are still 170 or so detainees left at Guantanamo. Those who can or will be prosecuted for anything remain a tiny fraction-- and that has not changed. Some of these problems have of course been inherited from the Bush Administration. Since Obama took over, there have been a tiny number of prosecutions, and some number of men have been transferred out. The Bush Administration could not figure out what to do with the Yemeni detainees-- now the largest nationality group left at Guantanamo-- and neither can the Obama Administration.

The so-called category of "too dangerous to release but cannot otherwise be prosecuted" remains. We continue to ask the question, "where is the judicial review supporting that determination?" If the law of war applies, then combatants can be held until the end of hostilities. The policy has, nonetheless, been to keep these people locked up.

And we see the problem of "just what is the adjudicative process?" Is it sufficient to say that the United States can detain them? The answer from the Supreme Court in the Boumediene case is that the detainees get habeas review to challenge their detentions. And these reviews are taking place, but unfolding slowly. And yet, it leads to the next question-- if a federal judge says "you should be released"... will the Administration -- MUST the Administration-- release them? And to what country? That question has not been firmly resolved, notwithstanding the Supreme Court's recognition of a habeas right arising from the Constitution itself.

And so the question of what's going to be the ultimate outcome remains. So far, the government has lost most of the habeas cases, but not all, and yet, the government still holds a number of detainees who have prevailed.

As far as an ultimate "grade" for the Obama Administration, it's really too soon to judge it; I'd give it a "pass" under the Berkeley Law grading system, i.e. good but not great.

The Talking Dog: Let's talk a bit about the big picture and perhaps a little about the methodology of relying on CCR and detainees' lawyers and so forth... you've done, albeit in a more systematic say, and with a different mix of players, essentially what I've tried to do for the last 5 or 6 years on this blog, to wit, get a bunch of "first person perspectives" from players such as soldiers, ex-detainees, attorneys and others... I should note that in my own case, present and former government officials responsible for the policies invariably declined to speak with me when I asked, and hence, although I personally believe so-called "journalistic balance" is a cop-out for the lazy and/or corrupt, I recognize that my presentations might seem to some arguably "one-sided" (although as I like to point out, that one-side is likely to be "the truth")... but it's not that I didn't try to get "the other side's perspective." While you certainly quote from (and provide) a number of governmental sources, given the weight of responses you received (correct me if I'm wrong on this) were from detainees and attorneys for detainees, and presumably, from people sympathetic to the proposition that there is something wrong with American detention policy, while you've obviously made a great contribution to scholarship, my question, if I ever get it out, is "how would you respond to the argument that your respondents all had a political motive to try to maximize their accounts of abuse at the hands of the American military and the extent that they continue to suffer personal trauma and other ill-effects of their detention?"

Laurel Fletcher: I look at this as a selection bias question. We have a small sample-- 62 men out of over 500 released detainees, and our sample is not representative. How do we know that the former detainees we talked to didn't have their own biases? Well, given the level of dispersion, we are reasonably sure these men were not in contact with each other. And we weren't looking for individual outliers of experience-- we were looking for trends and commonalities, reporting of the same kinds of treatment.

Further, we only considered reports from detainees that they themselves experienced or witnessed first hand, and not rumors or hearsay. We did what we could to control for selection bias. Again, none of the people we interviewed were held in the most severe, restrictive housing or received the harshest interrogation techniques-- factors that, in some sense, go both ways for our conclusions. In other words, we didn’t interview those most likely to have experienced the harshest treatment so in this sense those we interviewed might have better things to say about their treatment. On the other hand, those who spoke to us may have wanted to talk particularly ill of the U.S. government. But given the range of responses, that does not appear to be the case.

The Talking Dog: Can you briefly describe media interest and coverage of your work for "the Guantanamo Effect," and, say, how it compares to your other human rights work, and can you describe it in general, and whether you are satisfied, unsatisfied, or something else, both with respect to your own work, and Guantanamo and American detention policy in general?

Laurel Fletcher: These things are a little hard to gauge. You can take a look at book sales, or media hits, and draw whatever conclusions you want or can. We certainly got attention when our report was released. It was right after the elections of 2008, and candidate Obama certainly talked about Guantanamo and generated more interest in the subject.

Overall, and certainly now, there is "media fatigue" with the subject-- we see fewer stories on this than we did two years ago. As a general matter, getting press attention for human rights abuses is hard. And news about abuses received by foreigners is a harder sell still. Overall, we have probably seen more interest in Guantanamo than we have for other abuses, but this in some sense, reflects the national attention, which right now, would be more focused on the economy.

The Talking Dog: Let me briefly to ask you to predict the future-- in a micro sense-- for the men released by our government from GTMO (mostly by the Bush Administration), and for the men still held... in any sense you chose-- material, emotional, existential... and do you see anything (such as an official apology, compensation, accountability commissions, an American special prosecutor for war crimes committed by the American government, etc.) as likely to change any of this?

Laurel Fletcher: My guess will be that, if things hold as they have thus far, we will continue to see a slow trickle of men off the base. The biggest question is "what about the Yemenis?" I don't know-- I assume they'll stay in Guantanamo for the foreseeable future, and Guantanamo will remain open. It does not look like any will be released, or even moved into other prisons, in the United States itself.

And we will see military commissions, in those limited number of cases in which prosecutions go forward. As for the men released, the government says very little about them. Released detainees only seem to get attention when there has been one who has "returned to the battlefield". Those numbers are very, very low. Nevertheless, the United States government has made no investment in reintegrating or reeducating detainees, although rehabilitation could and should be seen as an investment in our security. It is in the government’s interest that detainees who leave Guantanamo be given some support in reintegrating into their communities. But giving released detainees an alternative to seeking help from a local, radical Mosque-- just doesn't seem to be in the offing. If one is concerned about minimizing the risks of future attacks, this might be a good reason to consider such an investment.

The Talking Dog: Let me close with my usual lawyer's weasel question, and ask you if there's anything else I should have asked you but didn't, or anything else the public needs to know on these important subjects?

Laurel Fletcher: What does the public need to know? We don't have a full picture. There are still memos out there that have yet to be released. We know that our government now says "we are no longer torturing" and has made reforms in detainee treatment. But do we have even that same level of information regarding reforms to insure that the screening process for picking up men to detain are any better than they were in 2001? What's to say next time that we'll do a better job? And so, of the two questions, (1) why are the wrong people at Guantanamo? and (2) how are they treated?, we seem to have only paid attention to the second question, and less so to the question of, do we get the right picture? What happened, exactly, to get us to the point we are now at, and how can we make sure the apparatus for doing so works better than it did in the immediate aftermath of 9/11.

The Talking Dog: I join all of our readers in thanking Laurel Fletcher for that interesting interview, and encourage those interested to take a look at "The Guantanamo Effect".

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 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 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.