The Talking Dog

April 3, 2013, TD Blog Interview with Matthew Melewski

Matthew D. Melewski is an associate attorney at the Minneapolis law firm of Leonard, Street and Deinard. He represents Libyan national Ismael Faraq Al Bakush, who is detained in Guantanamo Bay, Cuba. On April 2, 2013, I had the privilege of interviewing Mr. Melewski by e-mail exchange. The views and opinions expressed by Mr. Melewski are solely his own, and not the views of the Leonard Street law firm or of its member attorneys.

The Talking Dog: Where were you on Sept. 11, 2001, and to the extent you can answer, please tell me where your GTMO-detained client or clients were?

Matthew Melewski: I was living in Buenos Aires, Argentina. 9/11 was like an out-of-body experience. That morning, I had arrived at the university I was attending right after the first plane hit. There was a television in one room, where people slowly gathered. Everyone just sat in stunned silence, suggesting quietly that perhaps it was an accident. Then the second plane hit. I was glued to the television for 2 straight days. It was mostly in Spanish, except for BBC. I didn’t know what else to do. With the physical distance, language difference, and foreign city, it somehow didn’t seem real; like when I got home I would awaken from the dream.

My current and former clients were in Afghanistan during 9/11. None of them were members of the Taliban or Al-Qaeda.

The Talking Dog: Please identify your present and former GTMO-detained client or clients by name, nationality, and current whereabouts. To the extent you can, please tell me something about each of your clients, such as their age, family status, personality, circumstances of their capture, or anything else you believe of relevance.

Matthew Melewski: My current client, Ismael Ali Farag Al Bakush, has been imprisoned without charge, after being kidnapped in Pakistan, for over ten years. He is Libyan man, 44 years old, and hopeless. Like most of the detainees, he understands the reality of the situation far better than most Americans. He realized long ago that if he ever got out of GTMO alive, it would be the result of some political calculation, not a legal determination. And certainly not the consequence of any sense of fairness or justice. By the time I first met Ismael, he had been imprisoned without charge for the better part of a decade. Instilling hope into a situation like that is nearly impossible, and what little hope might have remained in that prison, Obama has now extinguished. That is what we are seeing with the most recent hunger strike.

Ironically, Ismael is ostensibly being held for being a member of the Libyan Islamic Fighting Group – an organization that just played a central role in the U.S.-supported overthrow of Muammar Gaddafi. If he wasn’t in GTMO, he’d be our ally.

The Talking Dog: Please tell me the status of your client's habeas litigation, be it "habeas petition pending,"petition denied and appeal pending" or whatever else is applicable.

Matthew Melewski: The last time I saw Ismael, he asked me and my co-counsel to dismiss his habeas case. He understood before we got there what had happened – the D.C. Circuit determined that the government of the United States can imprison someone indefinitely so long as they present a piece of paper that says “he meets the definition of bad guy under the AUMF,” even if it doesn’t identify any sources or authors (Latif). And as antithetical as that is to the constitution and modern notions of democracy, it has only gotten worse. Now you don’t even have to show that piece of paper to the accused or his attorneys. You can just show it to a judge in camera (Morafa).

So Ismael said forget it, what’s the point? I tried to argue with him. But he was right. We voluntarily dismissed his case a few months ago, citing futility.

One of my former clients had been cleared for release by the Bush administration, the Obama administration, and every intelligence agency in the federal government. And yet the Obama administration opposed his habeas case, and ultimately won under the new evidentiary rules established by the D.C. Circuit. Out of one side of their mouth they said they had no reason to hold him, and out of the other they insisted (and still insist) that he could never leave.

The Talking Dog: Can you please tell me the last time you visited your client or client 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.

Matthew Melewski: I haven’t seen Ismael in over a year. And he won’t return my letters any more. He has given up. And it gets harder the more time passes. He becomes more depressed. I struggle to be encouraging. By sheer attrition and retirement, five attorneys representing him have left since I started working on his case in 2008.

One thing that the press and Americans need to understand about the visitation problems, new inspections, flight changes, novel detainee searches, etc. (and concomitant military denials) is that the military authority at the base is constantly changing and it has no institutional memory. Every new JDG (Joint Detention Group, which runs the prison itself) commander has his own prerogatives and implements every procedure anew, and every time you visit there are brand new personnel. The differences from visit to visit are almost unbelievable, from intense security, to lax security, to new times for visits, to new procedures, with no comprehension whatsoever on the military’s part that this is happening. Anyone who has been to GTMO more than once knows that the government’s claim that nothing has changed is absurd.

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? Is there anything of relevance viz a viz detainees' grievances, or the military's treatment of the prisoners, or anything else of relevance that you can tell me about that situation, including, if possible, the current condition of your clients, as far as you know?

Matthew Melewski: I haven’t talked to Ismael since the most recent hunger strike started, but from what I understand most of the detainees are participating in the hunger strike.

The newest JDG commander, Colonel John V. Bogdan, appears to be patient zero of the recent turmoil and the cause of the strike. Under his command a guard fired a gun in the camps for probably the first time ever, and his new search policies are what set off the strike. Rather than fix the situation, which he could have done by halting the intrusive searches or allowing the men to turn over their Korans, he has doubled down, and is attempting to break the men by dropping the temperature in the camps and restricting access to fresh water. Some lawyers have filed emergency motions, and hopefully the D.C. District Court will intervene.

The strike has gotten extremely grave. The men have not eaten for weeks, and many have lost 30-40 pounds. The men have nothing to live for. More people have left GTMO in a box than have ever been convicted of a crime (9 dead, 7 convicted over the last decade). This war on an abstract noun shows no signs of stopping, and Obama has turned indefinite detention into a bipartisan, judicially supported norm. The detainees see no other way out. I hope they are wrong.

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?

Matthew Melewski: I always say that the power of human incompetence should never be underestimated. Most likely, the government’s seemingly arbitrary and punitive actions are primarily the result of the JTF (Joint Task Force, which runs the overall camp) and JDG staff turning over in 2012. They all just got there a few months ago , with little sense of what preceded them. Bogdan recently testified that he did not even know about hidden listening devices installed in the prison for which he is the warden. The JTF probably relented on flights because the they did not realize the implications of suspending them.

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?

Matthew Melewski: As every year passes the media coverage decreases. No one is interested any longer. It doesn’t move product. The most depressing aspect of the media coverage, however, beyond even the lack of interest, is the failure of the media to understand that there is no defensible reason why this idea of indefinite detention – literally imprisoning someone until they die for reasons you won’t even tell them, on the basis of information you won’t disclose – cannot be imported. I don’t expect the media to understand why, conceptually and philosophically, this practice is so inimical to the free society we convince ourselves we live in, but I am a little embarrassed that so few recognize that once you accept arbitrary, indefinite detention, it’s just a matter of time until the government finds additional uses for that power. (In fact, we’ve already done this at least once. Jose Padilla is an American citizen that we imprisoned for 4 years without trial, tortured, and then sentenced to 17 years in prison for a completely different reason, for which almost no evidence was presented). What we are doing in GTMO is immoral and indefensible, but it’s also extremely dangerous.

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 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?

Matthew Melewski: Aside from the ongoing 9/11 prosecutions, nothing significant will happen. Obama does not have the courage to do what he must know, with his background, is right. Congress has just made a difficult situation worse. The D.C. Circuit has made habeas corpus petitions virtually impossible to win – and held that even if you do win, the district court can’t order the government to release you. And the Supreme Court no longer appears interested (Kagan was not involved in the cases that the Court most recently refused to hear, and thus one presumes that she did not recuse herself). That is the most depressing thing. Not that the only sure way to leave GTMO is in a box. But that people who should know better made it that way, and apparently intend to keep it that way.

The big lie is that Obama was prevented and is prevented from closing GTMO. In truth, he tried to move GTMO to a federal prison in the US, and that’s why Congress pulled the funding. He never tried to close it, as a concept, before or since. To this day the administration has the legal authority to issue waivers to transfer people out, but has never done so. Congress provided Obama with an excuse to do nothing, and he took it. Now he’s no longer even pretending to close it.

Which is not to let Congress off the hook. Almost every single GTMO-related action taken by Congress over the years has made a difficult situation worse. Precious few people at the highest levels of our government are willing to risk their political capital to resolve this situation.

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?

Matthew Melewski: Unfortunately, no. The American public has been bombarded with propaganda from every angle, with the happy complicity of the press, for over a decade (with some very notable exceptions, of course). The overwhelming majority of Americans have no idea that most people brought to GTMO have been released, that most still there have been cleared for release by every intelligence agency and the administration itself (86 of them, to be precise), and that almost no one has ever been charged with a crime, let alone convicted. Every week I encounter otherwise thoughtful people who genuinely believe that GTMO was for “the worst of the worst,” and that those still there have been convicted of something. I see no reason why the media writ-large would ever paint a different picture, or why the American public would ever come to a different realization. The only hope for anyone at GTMO is that someone in the political class discovers some untapped courage.

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?

Matthew Melewski: It has been hard to not be cynical and fatalistic watching so many otherwise good people trade their dignity for a self-deluded sense of security. And literally destroy hundreds of people’s lives to maintain that delusion. I feel bad for everyone involved.

The Talking Dog: Is there anything else that you believe I should have asked but didn't, or that the public needs to know concerning these issues?

Matthew Melewski: The people you vote for, who you convince yourself have a conscience and are determined to uphold the legal foundations of our society, are willing to let these men die in their cages, without ever determining if they are, in fact, guilty of a crime. This is a tragedy of the highest order, something the entire world except us recognizes.

The Talking Dog: I join my readers in thanking Mr. Melewski for that powerful 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 Stewart "Buz" Eisenberg, 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.