The Talking Dog

April 22, 2013, TD Blog Interview with Eric Lewis

Eric Lewis is a partner at the Washington, D.C. law firm of Lewis Baach, PLLC. Mr. Lewis previously represented four British nationals detained at Guantanamo Bay, Cuba, and currently represents a Pakistani national detained at Bagram Air Base in Afghanistan. On April 19, 2013, I had the privilege of interviewing Mr. Lewis by telephone. What follows are my interview notes, as corrected by Mr. Lewis.

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

Eric Lewis: I was in London. I was the U.S. counsel to the liquidators of BCCI, and I was working on that case. At that time, I had two small children, both back here. I was out at lunch in the Smithfield Market in London, when I heard that a plane had flown into the World Trade Center. I thought, what an unusual accident. Then, we heard about the second plane, and I knew it was not an accident. I called home immediately and found my kids were o.k. After that call, I couldn't get through to them for another day, and then I couldn't come home for about a week.

Before heading back, I went to a service at St. Paul's Cathedral in London (actually outside the cathedral, with loudspeakers set up to hear what was transpiring). I have never seen such an outpouring of warmth by the British toward their American friends.

The Talking Dog: Please identify your present and former GTMO-detained or "war on terror" client or clients by name, nationality, and current whereabouts. To the extent you can, please tell me something about each of your clients.

Eric Lewis: I previously represented four British detainees (the Tipton Lads, and Jamal Al Harity), and they're now out of Guantanamo. I also represent a Pakistani named Amanatullah, who is held at Bagram. My GTMO clients were most fortunate to be British; it was at a time when Tony Blair had sufficient influence to get my clients released, although he could achieve little else.

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 of note.

Eric Lewis: Amanatullah's case was assigned to Judge Royce Lamberth. He denied the petition, finding that a detainee at Bagram is beyond his jurisdiction, applying al Maqaleh and other cases. That decision is now on appeal to the D.C. Circuit; our brief is due in the next few days.

The Talking Dog: Would the much vaunted handover of control of prisons to Afghan control make any difference?

Eric Lewis: As to the Afghan prison handover, the government has already argued that the prisons there are under Afghan sovereignty, and habeas petitions would "interfere with Afghan sovereignty." But the Afghan government has already decided that it will not take on third country nationals brought to Afghanistan by the United States. Amanatulleh was a Pakistani handed over to British forces in Iraq, and then handed over to American forces and sent to Bagram (which, by the way, is a grave breach of the Geneva conventions on the part of the British for handing him over without an assurance that the prisoner would not be rendered somewhere else,) Indeed, we brought a habeas petition for him in London, and the British Secretary of State for Defense and Foreign Affairs was ordered to produce Amanatulleh. Under the Memorandum of Understanding between the United States and Great Britain, either party has to turn over any prisoner the other asks back... and the U.K. asked for Amanatulleh's return, but the U.S. government responded "don't worry, we'll deal with Pakistan"... and then declined to turn him over to Britain. We filed a complaint before the London Metropolitan Police concerning the officials involved in his rendition. The complaint was denied, but we have sought judicial review.

The Talking Dog: Can you please tell me if you visited your clients at Guantanamo, and can you describe the circumstances of your visit?

Eric Lewis: My British clients were released from Guantanamo in 2004, before attorneys were permitted to visit, and we are not permitted to visit clients held in Afghanistan at all.

The Talking Dog: Can you tell me any significant developments concerning other litigation involving your clients?

Eric Lewis Our British clients, who were released in 2004, sued Rumsfeld and a number of generals for engaging in torture and religious abuse; we lost our Bivens action, but actually won on our claiming the trial under the Religious Freedom Restoration Act, which provides that all persons are to be permitted to practice their religion without restraint. Unfortunately, on appeal, the D.C. Circuit held that our clients were "not persons." this ended up being the case of Rasul v. Myers. Yes, this is the same Rasul as in Rasul v. Bush, and Shafiq Rasul is basically a kid with Nike sneakers and a baseball hat, and we had to convince him to bring a damages action; he was actually quite concerned that he might be put back in Guantanamo. But then Shafiq Rasul brought his case, and won.

Well, the British detainees went home. Then we won in the D.C. District Court, but the D.C. Circuit held they were "not persons," and as such, they had no right not to be tortured. We petitioned for certiorari to the U.S. Supreme Court, and then it issued the Boumediene decision, and vacated and remanded the D.C. Circuit's ruling consistent with Boumediene. In 2008, the D.C. Circuit set a schedule for briefing that would have been completed by the Bush Administration; we secured a change in the schedule so that the Obama Administration would be permitted to weigh in.

Notwithstanding the campaign rhetoric about "restoring the rule of law", the Obama Solicitor General (Justice Kagan, whom I went to college with) ended up filing exactly the same brief the Bush Administration filed, and then the D.C. Circuit issued a decision also dismissing our clients' case. The Supreme Court then denied certiorari review. This is all problematic. Even if you look at the doctrine of qualified immunity, by failing to take the case, the next time government officials torture people, there is still no judicial precedent that there is a right not to be tortured, somehow independent of the right of habeas corpus.

I did a piece a while back in which I noted that whether or not Obama says "no torture," because of the failure to institutionally do anything actually against torture, there will always be another John Yoo to come along and provide legal cover to torturers of the future. An unfortunate loss, as we are still in the same position, and constitutional rights aren't protected. Even the Bivens "special factor" had not been extended to this case until the D.C. Circuit managed to tie that up as well. As such, at the end of the day, there is still no civil legal remedy for torture and no clearly established right for foreign detainees not to be tortured..

The Talking Dog: Can you comment on recent developments associated with the GTMO hunger strike, and to the extent possible, can you put these developments in some context?

Eric Lewis: At the hearing held earlier this week (in the al Madwhani case), someone is clearly lying about what is going on, before Judge Hogan. The detainees detail a number of conditions that result in his being near death; the government simply says "not true." And for his part, in denying the detainee's motion, Judge Hogan concludes "the Military Commissions Act [of 2005] precludes it," as an impermissible "condition of confinement" issue, and also finds the detainee's actions to ostensibly be "voluntary." The Constitution cannot say "no remedy" under these circumstances. If the government has the right to "destroy the body" (rather than produce it, as the literal translation of habeas corpus means), then there is no remedy at all. The right to life in these circumstances must be antecedent and permit a challenge to the conditions of confinement. Otherwise, the government can simply take you out and shoot you This is morally incoherent and odious.

The hunger strike is spreading. The men have no hope and no certainty; hopelessness is pervasive... people have died already, and will continue to die. The government, of course, controls the pictures coming out, and hence, controls the story. The images the government wants to come out of the hunger strike are images of lunches being thrown away. Of course, control of images is all too consistent with authoritarian regimes.

Guantanamo, like many things, has a certain ebb and flow. The military, in its infinite wisdom, decided to change assignments, and brought in a hardass officer evidently committed to return to the Geoffrey Miller days. Making a decision to do something this ridiculous under these circumstances utterly escapes me; it is absurd and counterproductive. Now it appears there is a new man in charge. We will see whether it is "Miller Time" again, or whether there will be changes.

I do legal work in the Middle East, and in that part of the world, Guantanamo and our "indefinite detention" policy remains a stain-- a moral stain on the Bush Administration, and a moral and competence stain on the Obama Administration. Does this President want men never charged with anything (and over half of whom his own Administration has "cleared for release") to have been imprisoned for fifteen years by the time he leaves office?

The "worst of the worst" such as they are, are being charged with crimes, and prosecuted; the rest of "the worst" had perhaps a week in a training camp, or held an AK 47 in a dangerous part of the world where almost everyone else does... they'll be left there. What is the danger at this point? Men will have served fifteen years without charge... and if they are "hardened and angry" as a result of the decision to hold them in this way, we will punish them for that. We have amazing surveillance capabilities everywhere-- we can spot the dimples on a golf ball from satellites. Holding men in this moral abomination to avoid their "return to the battlefield" is not the answer-- there are better solutions than having these guys sitting for fifteen years without hope or any route out.

The Talking Dog: Can you comment on media coverage, in particular, of events at Guantanamo in calendar year 2013, and compare and contrast to earlier coverage?

Eric Lewis: I think there is a Guantanamo fatigue out there-- an ADHD associated with the issue as people have moved on to other things. American coverage ha been more than a little jingoistic, overall.

Certainly, the New York Times has been aggressive on its Guantanamo coverage, and the British press has been proactive-- but people these days get their news in different ways. In a great sense, if you control the pictures, you control the story. And the U.S. government controls the pictures and has made them a feature of its propaganda campaigns. Certainly, after the Rasul and Boumediene cases, there was attention paid. And now we have this Constitution Project, with Asa Hutchinson, a former Republican Congressman from Arkansas, and Jim Jones, a former conservative Democratic Congressman from Oklahoma, who call torture... torture.

Their report has received "respectful" coverage, but hardly the coverage required. We have a President who famously said "we have to look forward and not backward" when it comes to dealing with our own torturers. That is not, of course, how societies come to moral outcomes. How he assuages his political enemies is, unfortunately, what has come to define his political reality. Part of this, to be sure, is the 24 hour news cycle. Also, he felt the need to jettison or sideline the Greg Craig's and others who advised him to do the right thing... but at the end of the day, the news coverage reflects the "out of sight, out of mind" problem with the entirety of Guantanamo and indefinite detention and "the war on terror."

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?

Eric Lewis: It is my hope that as Barack Obama begins to contemplate his legacy, he will start to solve some of the problems surrounding these issues-- he just cannot leave this where this is.

At this point, of the men remaining the government's best case (and that's for the 80 of 166 or so men not cleared for release) is that they were at most trivial players in the great scheme of things, and by the end of Obama's term, it will be fifteen years that they have been held without charge. I would hope that he would deal with this and not leave all of this to a successor; that is just more than we can reasonably countenance. I may be, of course, a cockeyed optimist on this point.

As he comes to "legacy time," he'll not want to leave this mess as he found it. My prediction is that men will start to be sent out of Guantanamo after the 2014 mid-term elections, and we will start to revisit these issues.

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, and finally, is there anything else that you believe I should have asked but didn't, or that the public needs to know concerning these issues?

Eric Lewis: I can remember studying the Korematsu case with my Con Law professor-- Robert Bork-- back in law school. I was left with the impression that we have had some kind of "moral progression." The "war on terror" representation seemed like the Korematsu of our time. Unfortunately, what we have learned is that without the political will, the rule of law has little independent gravity on its own.

The Supreme Court did a better job in this area than in Korematsu, but the practicalities have proven ineffective. Much of the blame of this is the role of the D.C. Circuit, and shows the power of a Circuit Court to frustrate the policy directives of the Supreme Court. I suppose we can be hopeful that one day, law students will look back at this and there will be a realization of how unstuck we came after September 11th. While not excusing the Bush Administration for its excesses, the Obama administration certainly lacks the excuse of the "shock of the new."

As to me, I have never had a client do anything negative towards me as a result of my representation, and my clients abroad have been extremely supportive. We don't know here how negatively even very conservative players abroad view us concerning how we conduct our policy. Our conservative commercial clients think we're doing some very important work here.

The Talking Dog: I join all of my readers in thanking Mr. Lewis for that informative 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 Cori Crider, Michael Mone, Matt O'Hara, Carlos Warner, Matthew Melewski, 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 former military interrogator Matthew Alexander, 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.