The Talking Dog

November 25, 2014, TD Blog Interview with Jon Eisenberg

Jon B. Eisenberg is an attorney “of counsel” with Horvitz & Levy,LLP, a law firm based in Encino, California. He has more than 35 years of experience in appellate litigation, and is the principal author of the leading treatise on California civil appellate practice, The Rutter Group’s “California Practice Guide: Civil Appeals and Writs.” He has argued a dozen cases in the California Supreme Court and some 75 cases in the California Courts of Appeal and the United States Court of Appeals for the Ninth Circuit. He is also on the legal team representing a number of Guantanamo detainees.
On November 25, 2014, I had the privilege of interviewing Mr. Eisenberg by e-mail exchange.

The Talking Dog:Where were you on September 11th?

Jon Eisenberg: I was home in Oakland, California, still in bed, listening to the radio. When I heard the news of the terrorist attacks I switched on the television and watched in shock as the twin towers came down. I wondered whether I should go to San Francisco for the class I was teaching that semester at Hastings Law School. I went. The streets around the school (in the city’s civic center) were cordoned off and police were everywhere. Only one of my students showed up. I returned to my office thinking back to the JFK assassination (when I was ten years old) and how this was a national trauma on a similar scale.

The Talking Dog: I understand you are involved with lawyers from Reprieve and others on legal teams who are suing to challenge confinement conditions at Guantanamo Bay on behalf of a number of prisoners. Multiple part question... Please name your clients and nationalities, identify your co-counsel, and state where your clients' litigations currently stand procedurally, which clients are "cleared for release" (if not all of them) and which of your clients are still on hunger strike. And, please let me know whether you are at liberty to talk about when or whether any of your clients are presently the subject of possible repatriation, to Uruguay, their home countries, or otherwise?

Jon Eisenberg: For the past year and a half, I have been working with Reprieve on a series of cases challenging the manner in which hunger-striking prisoners at Guantánamo Bay are being force-fed.

My clients (all represented by Reprieve for various periods of time) have been Abu Wa’el Dhiab (Syria), Shaker Aamer (Saudi Arabia, resident of Great Britain), Ahmed Belbacha (Algeria), Nabil Hadjarab (Algeria), Emad Hassan (Yemen), and Mohammad Ahmad Ghulam Rabbani (Pakistan).

My co-counsel: Cori Crider, Alka Pradhan and Clive Stafford Smith of Reprieve (London and New York); Eric Lewis and Elizabeth Marvin of Lewis Baach, PLLC (Washington D.C.); and Lisa Jaskol of Public Counsel (Los Angeles). I have also gotten sage advice from Guantánamo Bay habeas attorneys Stephen Truitt and Sabin Willett.

The status of the various cases:

Abu Wa’el Dhiab has become the most actively litigated case, simply because his is the one on which the assigned district judge, Gladys Kessler, has acted most expeditiously.

Throughout the spring and summer of 2014, Judge Kessler granted us a limited amount of discovery, the most significant of which has been access to secret videotapes of Dhiab’s forcible cell extractions and force-feedings. In early October of 2014, Judge Kessler held a three-day hearing on our application for a preliminary injunction, at which we presented testimony by three doctors, excerpts from Dhiab’s Guantánamo Bay medical records, excerpts from secret written policies (called “standard operating procedures”) to which Judge Kessler ordered the government to give us access, and the secret videotapes. We presented a solid case, but on November 7, 2014, much to our surprise and disappointment, Judge Kessler denied the application in its entirety. We immediately filed an appeal, which is now pending in the D.C. Circuit.

Dhiab was cleared for release in 2009. Recent news media reports (on which I shall not comment) suggest that a particular country is willing to accept him. Meanwhile, he remains on hunger strike.

Shaker Aamer, who was cleared for release in 2007, was our lead petitioner (joined by Abu Wa’el Dhiab, Ahmad Belbacha and Nabil Hadjarab) on our previous trip to the D.C. Circuit, which led to that court’s pivotal ruling in Aamer v. Obama that the federal courts have jurisdiction over challenges to conditions of confinement at Guantánamo Bay. For various reasons, however, his case has taken a different turn since then and we have not yet resumed his force-feeding challenge.

Ahmad Belbacha was released to Algeria on March 23, 2014, shortly after the D.C. Circuit’s decision in Aamer v. Obama.

Nabil Hadjarab was released to Algeria on August 29, 2013, shortly before we presented oral argument before the D.C. Circuit in Aamer v. Obama.

Emad Hassan, cleared for release in 2010, has been on hunger strike for more than seven years. He has been force-fed approximately 5,000 times—a truly shocking number. We commenced Hassan’s force-feeding challenge shortly after the decision in Aamer v. Obama, but later withdrew it for various reasons and have not yet resumed it.

Mohammad Ahmad Ghulam Rabbani has been neither tried nor cleared for release. We commenced his force-feeding challenge shortly after the decision in Aamer v. Obama, and it is currently pending before D.C. District Judge Royce Lamberth. Rabbani remains on hunger strike.

The Talking Dog: You were part of a significant win in the not always detainee friendly D. C. Circuit Court of Appeals, recognizing detainees have a right, albeit limited, to challenge conditions of confinement such as force feeding. And you won a significant victory in that the hearing at the District Court would not be closed to the public. In light of the recent denial of the challenge to force feeding by Judge Gladys Kessler regarding your client Abu Wa'al Dhiab of Syria, does the D C Circuit's earlier ruling now take on less significance (if seemingly a detainee cannot win no matter how egregious the government's conduct), or do you see an opening for the Circuit to reverse Judge Kessler on this? Follow up-- can you tell us- in Cliff Notes form, perhaps, but with appropriate gory details-- what the most compelling evidence was at the recent evidentiary hearing before Judge Kessler?

Jon Eisenberg: It does indeed seem that the big victories in Guantánamo Bay litigation, such as in Boumediene (establishing habeas jurisdiction to order release from Guantánamo Bay) and Aamer (establishing habeas jurisdiction over conditions of confinement at Guantánamo Bay), turn out to be little more than theoretical. No detainee has yet managed to secure release or relief from abusive conditions solely because of judicial compulsion. But I do believe the continuing pressure of litigation, along with the ongoing hunger strike, is at least partly responsible for causing the Executive Branch to resume the releases of cleared detainees (which had been suspended for several years), and I know for a fact that Dhiab’s case caused the Department of Defense to suspend several of its more egregious force-feeding practices.

There is indeed an opening for the D.C. Circuit to reverse Judge Kessler’s decision of November 7, 2014. The pivotal threshold question before Judge Kessler was whether the Guantánamo Bay detainees possess any constitutional rights that are implicated by the challenged force-feeding practices. The answer determines the standard of proof. If the answer is yes, then Dhiab need only prove that there are “ready alternatives” to the challenged practices. But if the answer is no, then Dhiab must prove that the government was “deliberately indifferent” to the pain and suffering caused by his force-feeding—a standard that is nearly insurmountable. Judge Kessler did not expressly decide this threshold question, but seems instead to have assumed an absence of constitutional rights, and thus she assessed each challenged practice according to the “deliberate indifference” standard. On appeal, we will ask the D.C. Circuit to rule that the challenged practices do implicate constitutional rights that extend to Guantánamo Bay, so that Judge Kessler should have assessed those practices under the “ready alternatives” standard.

As for the most compelling evidence we presented to Judge Kessler, here’s a partial list:

1. The force-feeding videotapes. They are very, very disturbing. The American people need to see these videotapes as much as the Abu Ghraib photographs.

2. An interrogatory response by Col. Bogdan in which he admitted that the purpose of a short-lived experiment in more lenient force-feeding practices was to “incentivize” detainees to stop hunger-striking—which, of course, is the carrot counterpart to the stick of more painful practices. This admission belies the government’s claim that everything done to the hunger-strikers is motivated by “humane” intent. The government is inflicting unnecessarily painful force-feeding practices for the purpose of coercion, not out of beneficence.

3. Medical records demonstrating that the May 2014 order to force-feed Dhiab was based on a false accounting of his previous usual weight.

4. Evidence that the Guantánamo Bay “standard operating procedures” for force-feeding are substantially harsher than the regulations governing force-feeding in federal prisons within the sovereign borders of the United States.

5. A notation in Dhiab’s medical records stating that Guantánamo Bay medical personnel deprived him of the use of a wheelchair because of his “disciplinary status”—i.e., as punishment for hunger striking.

6. The routine use of olive oil to lubricate feeding tubes, which the government recently ceased after one of our expert witnesses, Dr. Steven Miles, pointed out that the use of oil-based lubricants in enteral feeding can cause a rare form of pneumonia. (Interestingly, a report on the autopsy of Guantánamo Bay detainee Adnan Latif, who died in 2012, states that Latif not only overdosed on medication but also was suffering from pneumonia.)

7. The manufacturer’s instruction pamphlet accompanying the feeding tubes used at Guantánamo Bay, which recommends replacing them every four weeks—rebutting the government’s claim that it is dangerous to leave feeding tubes in place and they must be inserted and removed twice daily.

8. A medical journal article reporting that doctors and patients overwhelmingly agreed in a survey that the insertion of a nasogastric feeding tube is the most painful of common emergency room procedures—more painful than urethral catheterization.

The Talking Dog: Turning to the other portion of Judge Kessler's earlier ruling directing public disclosure of videos made of your clients' force feeding, and forcible cell extractions, which your co counsel Cori Crider saw and said made it difficult for her to sleep, again, multiple part question... Has the government appealed that order yet, and do you have any insight on what will happen with that appeal (both from the stand point of an advocate and a guy who wrote the book on appellate litigation)? Have you seen the videos? If so, how close is this animated version of them derived from detainee accounts? And how strong do you think "public's right to know arguments" will play against the over thirteen years of bipartisan national hysteria we have been enjoying (with the Islamic State as only the latest reason we should all be scared to leave our homes)?

Jon Eisenberg: As of this writing (November 25, 2014), the government has not yet appealed Judge Kessler’s October 3, 2014 videotape order. She has given the government until December 2, 2014 to decide whether to do so. In my opinion as an appellate specialist (you have alluded to my authorship of a treatise on California appellate procedure), that order is not even appealable, because it is not Judge Kessler’s final ruling on public release of the videotapes. At this point, all the government has been ordered to do is redact the videotapes and submit a proposal for the logistics of their public release. Only when Judge Kessler approves the redactions and issues her final order for public release will there be an appealable order. If the government files an appeal from the interlocutory order of October 3, 2014, we will move for dismissal of the appeal as premature.

In any event, if the government wants to keep the videotapes secret, then sooner or later the question of public release will go to the D.C. Circuit (and perhaps even the Supreme Court). I won’t hazard a guess as to what might happen on appeal.

I have seen the videotapes. They are classified secret, and I am forbidden from describing them to you.

The Talking Dog: Let me use that public right to know thing to segue to the Al-Haramain Islamic Foundation case, in which it was established that the Bush administration knowingly violated the FISA law in eavesdropping on an Islamic charity (now no longer extant I believe) but ultimately two lawyers who established that their conversations were illegally spied on could not recover because of sovereign immunity... do I have the details right, what was your role in that case, and where do you see this case in the big picture (even as it was the only case of its kind I know of to survive a state secrets assertion)? Bonus question: there is no doubt whatsoever, I assume, that your attorney client communications involving Guantanamo detainees, and probably all of yours and my communications, are being captured by the government, and we presumably have no recourse to challenge any of it... can you comment on that?

Jon Eisenberg: I was part of a legal team that spent six years litigating a challenge to President Bush’s warrantless wiretapping program on behalf of an Oregon-based Islamic charity and two of its attorneys who were illegally wiretapped. The case started as Al-Haramain Islamic Foundation Inc. v. Bush, and ended as Al-Haramain Islamic Foundation, Inc. v. Obama. That’s right—Bush did it, Obama defended it.

We learned of the illegal wiretapping because, during previous administrative proceedings, the government had accidently given the charity’s attorneys an incriminating copy of a top secret document. The government asserted the state secrets privilege to oppose our use of the document to demonstrate our clients’ standing to sue. We litigated the privilege issue for years, during which time enough non-classified information emerged to enable us to demonstrate standing without using the document. Relying solely on this public information, we won in the district court, obtaining a ruling from U.S. District Judge Vaughn R. Walker that our clients had indeed been wiretapped in violation of the Foreign Intelligence Surveillance Act of 1978. The Ninth Circuit reversed Judge Walker, holding that the government has sovereign immunity from civil actions for violating FISA. So, Bush’s warrantless wiretapping program goes down in history as having been illegal but untouchable by legal process.

Al-Haramain was part of a bigger picture of more than three dozen lawsuits filed nationwide challenging Bush’s warrantless wiretapping program. It was the case that survived the longest, probably because of the unique situation of the secret document. Ultimately, all of the other lawsuits foundered on the state secrets privilege. We managed to sidestep the privilege but then lost on sovereign immunity. The Electronic Frontier Foundation continues to litigate valiantly against government eavesdropping.

I spent some time in a funk over the denouement of Al-Haramain, but got over it. I then moved on to Guantánamo Bay litigation.

Is the government secretly eavesdropping on me? How should I know? It’s a secret! Let’s just say I wouldn’t be surprised.

The Talking Dog: As you probably know, President Obama happens to be my college classmate. At the time his Justice Dept first asserted state secrets in the Al-Haramain Islamic Foundation case back in 2009, you suggested it was too soon to tell what his government was up to...we are nearly six years you have any doubt that in many respects he has been a worthy successor to Bush and Cheney if not their third and fourth terms?

Jon Eisenberg: Actually, my absence of doubt in that respect dates back to the day before President Obama’s 2009 inauguration, when—having in mind Obama’s public denunciation of Bush’s warrantless wiretapping program as illegal—I proposed to the lead Department of Justice attorney in Al-Haramain that we stipulate to a suspension of further proceedings pending reassessment by the new Administration. I got the shock of my career when he replied that he had already consulted with the Obama transition team and there would be no change in the government’s handling of Al-Haramain. That was my moment of epiphany about Obama. No change, no hope. But I didn’t want to say that publicly, at least not yet. So I quoted Zhou Enlai.

When it comes to national security and privacy issues, Obama has proved, time and again, to be just awful—as bad if not worse than Bush and Cheney. When you were in college with Obama, did you ever imagine that he would turn out to be Big Brother?

The Talking Dog: How did you get involved in the Guantanamo litigation? What effect has it had on you, personally, professionally, or any other way you'd like to answer? Do you see any common threads in the current force feeding cases, a comparable scenario in the Terri Schiavo case (also a "right to refuse medical care" case, in which you were once also involved), and the eavesdropping case of Al Haramain?

Jon Eisenberg: One of my Al-Haramain co-counsel, Lisa Jaskol (who has been my friend for nearly 20 years and was formerly one of my law firm partners), invited me to help her out with an appeal she was handling on behalf of a Guantánamo Bay detainee named Obaidullah whose habeas petition had been denied. Toward the end of that case, the 2013 hunger strike began. When investigative reporter Jason Leopold somehow managed to get hold of and publish the written “standard operating procedures” governing the detainees’ force-feeding, I read them and began to formulate an idea for a legal challenge. I made some inquiries and found my way to Cori Crider at Reprieve, who’d had the same idea. The next thing I knew . . . .

The common thread in each of these cases—warrantless wiretapping, indefinite detention without trial, force-feeding, right of personal autonomy—is their implication of liberty interests protected by the constitutional right of due process. These are all human rights cases.

I spent about 3,000 hours on Al-Haramain, and so far I have about 1,800 hours into the force-feeding cases—all uncompensated, in case you’re wondering. I do well enough financially with the billable side of my practice, but there’s been an emotional toll. Sometimes I despair. The victories are gratifying, but the defeats are very hurtful.

The Talking Dog: Assuming, as I do, that the force feeding videos will never see the public light of day, and assuming that a few detainees (say, ten, maybe twelve) in the next year, get released (to Uruguay, for example)... where do you see this [the Guantanamo enterprise] going, say, in one year, two years, five years... Absent videos shown over and over (or at least salacious photos) would you agree that the American people are just not capable of developing any concern that would alter the state of public discourse (beyond a few gadflies of course)? Or... am I wrong on this-- is it now legacy time for Obama, and is he now perversely freed up [now that he has managed to lose both houses of Congress] to largely empty out Guantanamo?

Jon Eisenberg: As I write, at end of 2014, we are in the midst of a modest thinning of the Guantánamo Bay population. Come 2015, however, I fear the releases may cease for the remainder of Obama’s presidency—if the new Republican-controlled Congress wishes it to be so. I think Obama would like to finally make good on his promise to close the detention facility at Guantánamo Bay, but he squandered that opportunity in 2009 when the Democrats controlled both houses of Congress, and now I think the best he can do is to transfer most of the detainees who have been cleared for release. Our 45th president will inherit at least some of the mess that Obama has failed to clean up.

The Talking Dog: Do you see any significance to the release of six men to Slovakia, Georgia and Saudi in the last few days this him slipping in a sincere effort to close the place while Congress sues him over immigration, is this just the first installment of the 15 or 20 guys released that I fear will be his end game, or is there any or no other significance to this?

Jon Eisenberg: Too soon to tell.

The Talking Dog: Can you comment on the prevalence of Orwellian terminology in present events-- such as "non-religious fasters," or "declining the honor of being approved for enteral feeding," "asymmetrical warfare" or numerous others at Guantanamo, and how much has this unfortunate trend accelerated under [alleged] "Constitutional scholar" Barack "No Drama" Obama's government ?

Jon Eisenberg: Well, it’s . . . Orwellian. That it has happened under Obama is something I still find astounding. We could endlessly debate whether the U.S. military is too strong to be controlled by any President, or whether this particular President is too weak to control the military, or perhaps both.

The Talking Dog: Media coverage of these issues-- the hunger strikes, Guantanamo in general, your representation-- do you have any comment on it?

Jon Eisenberg: When it comes to Guantánamo Bay, media coverage in England, continental Europe, and alas even Russia is generally superior to that in the United States—with several notable exceptions such as Carol Rosenberg at the Miami Herald, Jason Leopold at Vice, and Charlie Savage at the New York Times. A few American reporters have told me that they don’t write much about Guantánamo Bay anymore because the American people don’t care much about Guantánamo Bay anymore. But if we can keep Guantánamo Bay in the news, the American people will care—which is why it’s so important to secure public release of the force-feeding videotapes.

The Talking Dog: As an all-purpose legal observer, do you have a comment on what the Guantanamo project has done to, say, "the law," the practice of medicine and medical ethics, such as they are, penology, or any other aspects of American life?

Jon Eisenberg: For me, the only positive outgrowth of the “Guantánamo project” is the rise of the “Gitmo bar”—hundreds of attorneys across the country who have stepped up to provide pro bono representation of the Guantánamo Bay detainees, in the great tradition of John Adams. I have been amazed and uplifted by the dedication and talent of these fine lawyers. In my moments of despair, I think of them, which helps.

Other than that, I’ve seen little but darkness in the “Guantánamo project.” The rule of law, the practice of medicine, medical ethics, and penology have all been debased by what Bush and Cheney wrought, and I think Obama’s failure to effect significant change is a national tragedy.

The Talking Dog: Anything else I should have asked you, but didn't, or anything else the public should know about these important issues?

The public should understand that these men are not seeking to starve themselves to death, but rather are using the hunger strike as the only means available to them to protest their indefinite detention without trial. These are not “right to die” cases. This is speech, not suicide.

The Talking Dog: I join all my readers in thanking Mr. Eisenberg for that thorough and 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 Guantanamo military commissions defense attorney Todd Pierce, with former Guantanamo combatant status review tribunal/"OARDEC" officer Stephen Abraham, with attorneys David Marshall, Jan Kitchel, Eric Lewis, 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, Laurel Fletcher, author of "The Guantanamo Effect" documenting the experience of Guantanamo detainees after their release, and with John Hickman, author of "Selling Guantanamo," critiquing the official narrative surrounding Guantanamo, to be of interest.