The Talking Dog

April 2, 2013, TD Blog Interview with Stewart "Buz" Eisenberg

Stewart "Buz" Eisenberg is an attorney in Greenfield, Massachusetts, and together with co-counsel, represents two men currently detained at Guantanamo Bay, Cuba, both of whom have been "cleared for transfer" by unanimous consent of President Obama's inter-agency task force, but nonetheless remain held in indefinite detention. I first interviewed Buz in 2008. On March 31, 2013, I had the privilege of interviewing him again, by telephone. What follows are my interview notes, as corrected by Mr. Eisenberg.

The Talking Dog: Please identify your present GTMO-detained client or clients by name, nationality, and age, and anything else of interest about them, or about what you know about events at Guantanamo, particularly the hunger strike?

Buz Eisenberg: Our clients are Mohammad Abdullah Taha Mattan, ISN 684, whom I represent with co-counsel Jerry Cohen, Gordon Woodward and Lauren Carasik, a 33 year old West Bank Palestinian, and Motai Saib, ISN 288, a 37 year old Algerian/Syrian dual national, whom I represent with Jerry Cohen. Both were picked up in Pakistan, and both are cleared for transfer (I note that many people, including habeas attorneys, use the term "cleared for release," though this is technically not true, even though most men transferred are usually promptly released by their home countries or the other places they are sent.)

The government’s smoking gun on Mattan is that he may have stayed in the same guesthouse someone else had three weeks earlier.

As to the hunger strike, that seemed to be precipitated by events on February 6, 2013, when increased abuse of the prisoners' Korans and cell shakedowns increased, and apparently, the strike got going on February 7th, and the shooting incident took place a short time thereafter, and events have just cascaded since. The removal of iso-mats (which detainees sleep on), family pictures, tooth brushes and tooth paste, and now, amazingly, drinkable water ("Camp Justice" and evidently the detention center has tap water that looks dreadful and which we have been told is not potable... but, as prisoners are being cracked down on for the hunger strike, our understanding is that the prisoners are being told to drink it now). We have had other very troubling reports, including one from David Remes’ client Uthman who reported to David on March 7th of this year (2013) that he observed a shooting by a guard in the GTMO prison recreation yard, where another detainee was struck in the neck with a rubber bullet – and which became one of the precipitating causes of the hunger strike now going on at Guantanamo. After witnessing the shooting, Uthman engaged in hunger strike himself, and after a few days was dragged by his neck to the infirmary, which in turn caused him physical problems. His weight has dropped from around 167 to 134 lbs, and his blood sugar counts have vacillated between 28 and 205 within a 48 hour period, according to David's notes.

The Talking Dog: Please tell me the status of their habeas litigation, be it "habeas petition pending,"petition denied and appeal pending" or whatever else is applicable, and to the extent applicable, if you can identify who the judge or judges involved are and if there is any published decision or decisions of note.

Buz Eisenberg: Their habeas petitions are both stayed. Even if the courts would generally entertain habeas trials of men who have been "cleared for transfer", there is also little incentive for cleared prisoners to proceed to trial. If they win, they remain “cleared” yet firmly entrenched in GTMO from which Congress has forbidden their transfer or release. And in the event they receive an adverse court decision from the habeas court, that would only undermine their "clearance" status and make it even harder to find a country willing to receive them, if ever the NDAA restrictions get lifted.

The Talking Dog: Can you please tell me the last time you visited your client or clients at Guantanamo, and can you describe the circumstances of your visit. If you could, can you contrast that visit with what you found at earlier visits, including the condition of your client(s), the restrictions on you as counsel and on your clients during your visit, the condition in which you found your clients, and anything else you believe relevant.

Buz Eisenberg: Gordon and Jerry were last in GTMO in January. Visiting hardly is worth doing. Even the last time I saw him our always pleasant client Mattan had descended into what I can best describe as a “hopeless” state. During his last visit, and for the first time, Jerry observed Motai not even wanting to come out for a visit. These men don’t want to be a burden on us, they know we are powerless to change the terrible situation in which they find themselves. I think Motai is resigned to staying at Guantanamo until he dies. We have all observed something profound about the human condition-- when stripped of any hope that tomorrow will be better than a horrific today, part of living just sort of runs by you-- something just bleeds out. This has been the pattern. And life without hope is no life. So much time has passed, hopes dashed so many times before, it's all just too painful.

We've been doing this for nine years, and when we've talked to the men, we've always been able to tell them of some angle we wanted to try; of some legal strategy; of some creative plan. They always saw evidence that gave rise to hope, some other detainees were getting transferred. Now, for the last three years, everything hopeful has ground to a halt. We have run out of avenues to pursue, of hope to offer. All we can do is sit across from men chained to the floor, and tell them, "I don't know"... I have nothing to say to inspire promise.

Gordon and Jerry observed that these men expect little at this point – without a glimmer of light at the end of the tunnel the spark is draining from our clients. I'll be going down with Gordon myself as soon as it can be arranged, probably the first of June or so. The availability of flights has been, of course, made more difficult by the government, interfering with the lawyer-client relationship. At this point, all we can bring down to our clients is a bit of companionship for a few hours over a day or two-- a short diversion.

Mattan is extremely articulate and bright, but he is fading. Everything has been an empty promise. The men's spirits are waning-- they are shells of the men that they were.

The Talking Dog: Can you tell me if your client or clients is or are participating in the present hunger strike, and whether they have participated in prior hunger strikes?

Buz Eisenberg: We don't know if either is on hunger strike; we're trying to contact them, but with GTMO, there are always difficult logistical issues. Not knowing is driving us crazy. From other attorneys' clients' reports, we believe the vast or overwhelming majority of Camp 6- the "compliant camp" -- is now on hunger strike. The men used to be able to congregate. Of course, now there is a new military commander, and many things are different.

The Talking Dog: Can you tell me, in light of the subject of the recent letter you signed on to directed to Secretary of Defense Chuck Hagel, if you have had contact with your client since that time (by phone, mail, etc.), whether you believe the government's recent (increasingly repressive) actions are a pretext by the government, for example, to cut off adverse publicity from GTMO, or perhaps to intercept communications between prisoner and counsel? Why do you think the government relented toward getting the flights reinstated?

Buz Eisenberg: [Rear Adm. John] Smith is the new guy in charge. At several levels in the chain of command, decisions have been made for draconian, unfair, undignified and frankly illegal conditions of confinement to return from the earlier bygone days, just as things were ten years ago. It is unclear why they would do so. Other than a complete stall in transfers out, there was peaceful collaboration between jailer and jailed at GTMO, but there has been a slow erosion in the humanity of the jailers. For us, it's been harder to arrange client visits, and when we do, our time to meet is more constrained... we have observed much irritating back pedaling.

But now the new regime there seems hell-bent on exerting its power regardless of the self-destructive consequences. It will make the process of jailing tumultuous over needless, sadistic policies, unilaterally imposed on detainees and lawyers-- it is hard to get there, and hard to do our job once there. It also makes the whole thing more volatile, and the inevitable result will be hunger strikes, such as the massive one presently occurring.

The Talking Dog: Can we lay this at the feet of the White House?

Buz Eisenberg: Not necessarily. The military, as do all large government bureaucracies, has a life of its own. As we were reminded with all the tumult around Benghazi, about just how broad the Secretary of State's purview is. That's why we wrote directly to the Secretary of Defense-- we're not sure even he knows exactly what's going on. We're hoping that some one will step up and get some action, realizing that a a complete breakdown at GTMO is not what anyone needs. At this stage of the game, there is no need for extreme controversy over conditions of confinement.

The Talking Dog: Can you comment on media coverage, in particular, of events at Guantanamo in calendar year 2013, and previously, and in particular, with respect to your own clients and representation?

Buz Eisenberg: What media coverage? There has been some tiny space in the NY Times, BBC, CNN and Carol Rosenberg... and otherwise NOTHING.

On my best days, I like to think if there were no election, Syria were not exploding, there were no sequester or government shut down, maybe we'd be front and center. But on my worst days, I note it is much easier for most people to think of GTMO as "bunch of terrorists-- let them die there." It is much more comfortable just to let people wallow. I spoke to Lauren Carasik's class at Western New England Law last week-- a public interest minded, socially conscious group, and they had no idea even how many people were still at GTMO. Jaws dropped when they heard how few were charged with anything... I was incredulous as to how few knew anything. But the fact is, the media won't sell papers in this economy telling people about this. For us, we have a dreadfully silent plague ongoing as our clients continue to suffer.

The Talking Dog: We have reached the point where more men have died at Guantanamo (and invariably under suspicious circumstances) than have been "convicted" under the controversial "military commissions," and a number of those "convicted" have actually been released, while the majority held (86 out of 166) are actually "cleared for release." President Obama has been handily reelected, notwithstanding the utter failure of his "close Guantanamo within one year" promise and evident decision to continue the logical arc of policies he inherited from the Bush/Cheney Administration. Further, Justice Stevens has retired, replaced with Obama's own former solicitor general, who might or might not continue recusing herself from any Guantanamo related litigation. And so, in light of all that, do you have any predictions for Guantanamo, "preventive detention" and related issues for, say, the remainder of Barack Obama's Presidency?

Buz Eisenberg: We need people like "the talking dog" and the Washington Post and the Podunk Register to let people know just how expensive and attention grabbing (in a bad way) the detention center really is. Indeed, just in terms of the number of military careers, so much time and effort and bad will internationally in maintaining this thing.

Of course, our hopes have been dashed so many times before, that it's hard to keep the rose-colored glasses on.... but ever the pollyanna, I like to think that if the economy ever recovers and the school shootings stop, and people even pay less attention to March madness, maybe there will be interest in having Guantanamo and Bagram coming to an end. Why can't we have trials? We're great at having trials! Gorman and Bronte and Eisenberg will try to use our license for the purpose for which we took an oath-- but we need someone to speak the Lindsey Grahams of the world into recognizing the folly of their ways, and what a folly the whole thing has become.

The Talking Dog: At over eleven and a half years since 9-11, with OBL dead, GTMO open over 11 years, the "high value detainees" commission trials dragging on, the war in Afghanistan (perhaps) over at the end of next year, do you see any way of getting the American public engaged in these issues, or any possible "public relations" angle that might help alleviate the seeming decision to simply close GTMO by having all of its occupants die there?

Buz Eisenberg: No, I think the long term hope rests in big time principals going front and center to take charge. Maybe a new Supreme Court, for example-- the D.C. Circuit won't change anything-- maybe Justice Kennedy stepping up and deciding to push Boumediene to actually provide the real habeas relief that his opinion said it would. Instead, we get all this "deference"-- the court "defers" to congress or to the executive or to the military-- and ducks all responsibility. In the 60's, you had a different result on things like voting rights or Miranda or Roe v. Wade and others, when judicial review was real, and political.

The Talking Dog: Can you tell me how your Guantanamo representation has effected you personally, be it professionally, emotionally, spiritually, or any other way you'd like to answer?

Buz Eisenberg: I just came back from a vacation in the South of France. We were in a tiny little village. There is a monument there to the five fallen sons of Provence who fell serving in the French Resistance against the Nazis. The stories you hear about that time are all about the futility-- such a small group of people battling such a huge monster. But-- you still fight. Maybe it feels futile-- but, you can't not fight. We're not as heroic as those guys. My colleagues are nonetheless selfless, dedicated and unrelenting, but through their virtuous deeds, they can articulate just how much human harm is being committed in the name of prosecuting the war on terror. It has evolved to the point of drone attacks on whomever, wherever, that it is a political endeavor that utterly forgets humanity. We are now 300 million out of 7 billion, behaving as all the rest are entirely incidental to us.

I can't stop my representation-- though I'm limited by resources-- I'm self-funded out of my retirement (Jerry and I both are)-- but as long as there is a guy there, I'll take another case. I don't know how I will stop, even if there ends up being a bleak outcome. Some things you just do out of the oath you took.

The Talking Dog: I join all of my readers in thanking Mr. Eisenberg for that evocative 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 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 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.