January 24, 2012, TD Blog Interview with Kristine Huskey
Kristine Huskey is the Director of the Anti-Torture Program of Physicians for Human Rights, and is an adjunct faculty member in national security law at the Georgetown University Law Center. Ms. Huskey was counsel to a number of current and former detainees at Guantanamo Bay, Cuba, and is the author of "Justice at Guantanamo: One Woman's Odyssey and Crusade for Human Rights". On January 11, 2012, I interviewed Ms. Huskey at her office in Washington, D.C. What follows are my interview notes, as corrected by Ms. Huskey.
The Talking Dog: My usual first question (my own answer being "across the street from WTC") is, "where were you on 9-11?"
Kristine Huskey:I was actually in New York. I was working at Shearman & Sterling on an arbitration, and we were staying in the Waldorf. One of our clients came running in and said "some idiot has crashed his plane into the World Trade Center." Of course, he did not realize that it was a huge passenger plane. We turned the television on, and watched events unfolded. I was struck by how freaked out the newscasters were; that was unusual.
Our suite at the Waldorf, was decked out with boxes and office furniture, as if it were an office, and we had a t.v. in that set up. As we watched, we were dumbfounded; some of us were crying. By mid-day, I went outside finally. I looked down Sixth Avenue, usually a very busy street, and could see clear down the avenue to downtown, and it was empty. You could see smoke, and the rooftops were covered with people.
My sister lived at 71st and Columbus then. I remember walking to the Upper West Side to find her; I had talked to her on the phone, before the phones went on the blink. We hugged and cried when we saw each other.
We eventually took the train back to Washington, and I noticed both military personnel on the streets, and no air traffic. Although I had lived in war-torn Angola when I was younger, where soldiers with weapons were common, it was still unusual to see it on the streets of the United States.
The Talking Dog: . Can you identify your Guantanamo detainee clients by name, nationality, and current location (e.g., "at Guantanamo," "released to Kuwait" or whatever is applicable), and if you could tell some highlights of personality or anything of interest about their cases?
Kristine Huskey: The first case I worked on starting in March 2002—was the seminal case before the Supreme Court, Rasul v Bush, in which I represented 12 Kuwaitis. With the exception of two men—Fawzi Al Odah and Fayez Kandari, all are back in Kuwait. Andy Worthington has done an excellent job of documenting the men who have passed through Guantanamo ), so you can find the Kuwaitis easily in Andy’s book and on his website. I also represented Omar Khadr—the Canadian citizen who was picked up when he was 15 and sent to Guantanamo when he was 16. He pled guilty before military commissions because it was the only way he was going to get out of Guantanamo and back home to Canada. He’ll serve the rest of his six or seven year sentence in Canada—at least he will see his family there. Then, I represented four Afghan citizens right when I started the national security clinic at the University of Texas Law school—but those men were released back to Afghanistan and I did little work on their cases nor did I ever meet them. From 2008-2009, I represented a Syrian man—Moammar Dokhan—he did not want to go back to Syria and the United States was happy not to send him back. Portugal accepted him and he is trying to regain his life back there—learning the language, working, etc. I spoke with him on the phone right after he was released and asked him if I could help him with anything. He said “thank you for everything you’ve done, but I don’t need your help any more. I want to leave Guantanamo behind.” A farewell, but I was so happy for him. My last client who I represented from 2009-2011—Obaidullah—who is still in Guantanamo is from Afghanistan—first charged by military commissions and then the charges dropped. But, he is still detained.
The Talking Dog: I realize that you began your career in Shearman & Sterling, a large corporate law firm, which, despite its [small c] conservative nature, ended up, perhaps largely thanks to Tom Wilner's force of will, as the first major firm involved in Guantanamo representations. Notwithstanding that you have gone on to academia and work for an NGO, can you describe how your Guantanamo representations have affected you personally, professionally and in any other way you'd like to answer?
Kristine Huskey: When I started at Shearman, I didn't think I'd be there that long. Of my law school friends, I had the most interest in the civil and human rights area, and yet, I went to Shearman & Sterling, the big corporate law firm. There, I met Tom Wilner, and a couple of other attorneys who I still keep in touch with (they are "2 Toms and a Jobie" from that chapter in my book). I enjoyed working at Shearman; I liked the travel, I liked the work, but not the hours.
And then, the Guantanamo work came along. It was an opportunity to do human rights work; it was also controversial, international, exciting, interesting, and as Tom Wilner said, "it was the right thing to do." Tom and I often looked at each other in the face of opposition, and realized that the more opposition we got, the more convinced we were about it being the right thing to do. Frankly, we were shocked about how vehemently some people, even lawyers, were against what we were doing, when, at the time, all we wanted to do was just get these men fair hearings.
Guantanamo ended up changing my own professional track. I did press conferences, and public speaking, especially at law schools about my clients at Guantanamo and the issues involved. I realized how much I enjoyed educating people and realized that I liked teaching. In my case, I was a clinical law professor, and so I could continue working on litigation and teaching at the same time, and I found working with students to be a great source of energy and insight. My alma mater, the U. of Texas Law School asked me to start a clinic on national security law. And then I got married, and moved back to the D.C. area, but continued my work for UT from here.
Eventually, I decided to try policy work; I had known about Physicians for Human Rights [PHR] for a long time; they came out with one of the most important objective reports on Guantanamo in 2005; PHR continues to issue outstanding reports on issues of relevance. I had met the executive director, and through my work at Shearman, had also met a number of the physicians, including Steve Xenakis, a retired general and psychiatrist who spoke out on these issues. After the 2005 report, PHR continued to address the plight of the Guantanamo detainees, using science and medicine as a basis for issuing several more reports revealing evidence of physical and psychological torture. And so for me, the meeting of international human rights and national security issues was a perfect fit. Guantanamo has ended up shaping my career in the direction I had hoped for when it began.
I will say that actually going to Guantanamo Bay and meeting the men behind the legal briefs and fear-mongering and rhetoric opened my eyes, making me far more sensitive to humanity and people in need... it gave me "sensitivity on steroids!" These are people tortured and abused by our own government-- men who haven't seen their families in years and may never see them again. It certainly puts things in perspective and makes one think.
The Talking Dog: To what extent are you still involved in Guantanamo litigations, and can you comment on the D.C. Circuit's seeming "relaxation" of the apparent standards of evidence to justify continued detention that might have been expected after Boumediene? Given that detainees are now on quite the "losing streak" in their habeas cases given this "standard," what do you see as the future of GTMO-habeas litigation, if any?
Kristine Huskey: Well, while not as day-to-day active as I once was, I keep track of litigations, especially those I have been involved in.
As to Boumediene, Jonathan Hafetz wrote a piece last fall observing that the D.C. Circuit has ostensibly gutted Boumediene; after all, what's the right (to legal review of the legality of detention) worth if it's never really enforced in a meaningful way, and if the "standard" for legally holding someone is so loose that not a single detainee can ever be found to be unlawfully detained... quite a coincidence that the government seems to be winning every case! And, of course, no one has gone through the habeas process and actually been released as a result of the writ: all of the releases have been a result of political and diplomatic processes, and not via habeas. "Innocent" or "guilty" has been irrelevant: early on, the courts took themselves out of the equation.
The Talking Dog: Can you tell me about your visits to GTMO-- specifically, your first, and your most recent visits, and can you compare and contrast the experiences, including your expectations, and your observations... in particular, I'm wondering if there is any impact on the fact that it has been over a year since anyone at all has been released from GTMO, and that under Pres. Obama, far fewer detainees have been released (and at a much slower pace) than under Pres. Bush [notwithstanding that nearly half have been cleared for release by the Obama administration itself]?
Kristine Huskey: It's been about a year since my last visit to Guantanamo.
Nothing compares to the first visit: you see people chained to an O-ring in the floor, and see what the law really means to men in this position... it’s a big proverbial whack in the head about why you became a lawyer in the first place!
For a time, Tom Wilner, another Shearman lawyer, and I went to Guantanamo every 6 weeks to two months. In the beginning, it was shocking, but uplifting. The detainees, for a time, were extremely happy that they had lawyers. It wasn't as if, at first anyway, a lot of lawyers were visiting-- we were among the first lawyers to go to Guantanamo. But certainly, the clients were excited about our presence, and that the Supreme Court had ruled that they were entitled to a hearing.
Within a year or so, however, things began going downhill. Both Congress and the government were asserting that they didn't have the right to a habeas hearing, and we encountered clients not merely depressed and discouraged, but wondering "what good are you guys?" I don't blame them-- it was an utterly depressing situation.
And we had clients on hunger strike. How do you talk to them-- how do you tell them, "look, it's going to get better"? There are times one believed things would get better and Guantanamo would close and the men would get hearings and they would be released... but, after a while, how can you keep that sentiment?
Another noteworthy visit was with Omar Khadr (I represented him as part of my clinical work at American University). At the time, he was about 19. I was meeting a person who spent his teenage years in a prison like Guantanamo, mostly with men at least twice his age, and realized he would never get to experience "normal" teenage life, whatever that is. I came out of the meeting thinking that he was behaving like a hybrid of a teenager and a grown man-- he had both teenage bravado (I'm fine here and don't need your help") and also had an adult sense of the unfairness of the military commissions situation, and indeed, had the maturity to realize that his own active participation made no sense.
My last visit was about a year ago. By then, I admit I was somewhat jaded. But when you see the condition of your clients, and they STILL-- to this day-- just want the chance to tell their story and have a chance to be released, because they know they haven't done anything wrong-- you take some heart-- as they try to make their case that the United States can't possibly want to hold someone like them.
A case in point is my former client Obaidulla (still detained), who happens to be one of the nicest, gentlest people I have ever encountered; he writes poetry among other things. I recently brought him a book by the poet John Berry, which he appreciated. Obaidullah is from Khost; he is accused of setting up a roadside bomb, which landed him a legal limbo. He was one of those for whom potential military commission charges were pending, but he was never referred for prosecution. Of course, there is no time limit for referring such charges. At the same time, he has a pending habeas case before Judge Richard Leon. His habeas case had been stayed, because of the possibility of a commissions (military trial) charges. Ultimately, Tthis was a case where the D.C. Circuit actually ruled in favor of a detainee, at least for the proposition that his habeas case had to go forward unless the government actually charged him. And so his habeas case went forward, and then the charges were dismissed by the government, and then he lost his habeas case. I keep up with Obaidullah's case through his military counsel, Derek Poteet; but of course, this is quite different from the face to face meetings.
But I will say that over the years, particularly the Congress and its multiple attempts to frustrate the rights found to apply by the Supreme Court (such as the Military Commissions Act or the Detainee Treatment Act)... one finds it extremely difficult to have to go to Guantanamo and tell the men whose rights are frustrated as to what happened, and why, nonetheless, they should continue to have a lawyer.
The Talking Dog: Your book, titled "Justice at Guantanamo," ends on a somewhat optimistic note, that of candidate Barack Obama having been elected President, with the promise of ending the policies that created Guantanamo Bay, and of course, closing the infamous facility itself and presumably dispersing its occupants either to their home countries (or some acceptable alternative... such as the United States itself) and providing fair trials to those who may have committed crimes... my reaction to our fellow [Columbia] alum and my own ['83] college classmate Barack Obama's performance in this area has been, in one word or less, "disappointing." Can you comment on the President's performance to date in these matters (and I would like you to comment on the recent NDAA), and what you would anticipate as "the future," be it under a second Obama term or perhaps a Romney or Gingrich Administration, for Guantanamo, Bagram, and related issues?
Kristine Huskey: One starts with a "big sigh." I think what happened is that somewhere deep down President Obama probably wants to do the right thing, but he quickly found that he didn't have the support of his own party. After an exciting start with his executive orders, then things happened in Congress in the other direction. Various laws were passed, such as, you can't release detainees in the United States, but you can try them here. While Democrats controlled Congress, such legislation was passed (and not vetoed!), which served to heighten the already existing fear factor.
Then again, intentions or otherwise, one observes that in 2009, Obama gave his famous national security speech. Guantanamo itself was not the issue-- at least, the President said so. But, he proposed indefinite detention, though he intended largely relocating prisoners to the mainland United States; arguably, locating our indefinite detention facility in the United States would be the lesser of two evils, but it was quite clear that Obama's intention was to close Guantanamo but not to shut down the policy of indefinite detention.
And hence, he caved quickly into any resistance against his policies relating to Guantanamo. He certainly could have taken leadership on this, and stood up to, or otherwise led, members of his own party-- but he didn't.
When he came in, we all thought, "well, Obama is a constitutional law teacher-- this is a good sign." And, in some cases early in the Obama Administration, the scope of decisions seemed consistent with this. In cases called Gherebi and Hamlily (which I led on briefs and did the oral argument for, before Judges Walton and Bates, respectively, of the D.C. District Court), I recall a government brief dated March 13, 2009 where it seemed the government's expression of its authority to detain was based on an attempt to follow the laws of war and armed conflict under international law. And in theory they were correct, but ultimately, the government has gone much further. It's one thing with respect to men captured in "battle"-- but what about men kidnapped from all over the world and transported to Guantanamo or Bagram? Of course, there is now a "relaxed" standard even of what "the laws of war" means as basis to hold someone, that has gotten much worse with the recent NDAA. Especially as we seem to have a "war against" just about anything the government wants, as we have a nebulous, never-ending vaguely defined "war on terror". And so, the legal positions taken in cases now are disappointing.
The Talking Dog: We're now, of course, ten years into this Guantanamo situation, with seemingly no end in sight. Can you, in light of the ten year spectrum and your own experiences, comment on how the media has treated Guantanamo/detention/war on terror issues, and in particular, how it has treated your own work? You can segment into local, national, international media, broadcast or print, or any other way that you believe appropriate to answer this.
Kristine Huskey: In the beginning –back in 2002 and 2003--I certainly remember doing a lot of work trying to get media attention for Guantanamo issues. I recall a meeting with John Hintz of the Washington Post, and at one stage, he was one of the few reporters to give attention to these matters at all.
Then again, there was a period after 2004 when the media was putting out a great deal of information made available from lawyers returning from Guantanamo.
On the whole, I would say that the media has been essential in getting out the truth, and in what the public knows of Guantanamo. We clearly needed a tireless reporter like Carol Rosenberg, who presses on despite the Defense Department's constant efforts to thwart everything she does. Any society purporting to be open and fair certainly needs reporters and the media to do their job, and overall, I'd say they have done so with respect to Guantanamo.
The Talking Dog: Finally, once again, as we come to a point in time ten years after the opening of Guantanamo Bay for military detentions of persons captured in Afghanistan and elsewhere, is there anything else I should have asked you but didn't, or anything else you believe that the public needs to know about this?
Kristine Huskey: Some of my "tenth anniversary" thoughts are in my recent blog post on the subject. Guantanamo, it must be realized, is two things. The fact that men are being held there for the last 10 years and quite possibly forever, at a particular place in Cuba, AND Guantanamo symbolizes an evolving national security apparatus that we've scared ourselves into thinking is necessary. A statute has just been passed that requires military custody for those even suspected of terrorism -- this is a tragedy that no democratic society should or can suffer. I'm reminded of Noriega or other Latin American despots-- if nothing else, our nation could always say, hey, we're certainly not as bad as that country... and now of course, we ARE that country. We have become what we used to despise.
A final thought I have is the work of a medical colleague here at Physicians for Human Rights, Dr Vince Iacopino, who has studied medical reports of detainees from Guantanamo, when available, and has observed a dichotomy: On the one hand, the records that show detainees complained of torture and abusive interrogation methods to health care staff at Guantanamo but, the records show that Guantanamo doctors never inquired or documented the cause of the symptons they observed. Later examinations of the men themselves by sources independent of the government show all the signs of torture... but, of course, “torture” or abuse is never recorded in the Guantanamo medical records. The government simply doesn't want the real facts to come out. But they have to come out.
The Talking Dog: I join our readers in thanking Ms. Huskey for that interesting interview, and commend interested readers to take a look at "Justice At Guantanamo:One Woman’s Odyssey and Her Crusade for Human Rights."
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, with Charles Gittings of the Project to Enforce the Geneva Conventions, and with Laurel Fletcher, author of "The Guantanamo Effect" documenting the experience of Guantanamo detainees after their release, to be of interest.