The Talking Dog

July 29, 2016, TD Blog Interview with Pardiss Kebriaei

Pardiss Kebriaei is a Senior Staff Attorney at the Center for Constitutional Rights, where she works on challenging U.S. government abuses in the national security context, including representation of current and former Guantanamo detainees, and others implicated in or affected by the "war on terror." She also advocates on behalf of other cases as part of the No Separate Justice Campaign, a grassroots initiative formed to shed light on unjust domestic terrorism prosecutions. Prior to coming to the Center for Constitutional Rights she worked at the Center for Reproductive Rights. She has also taught courses at Hunter and Brooklyn Colleges of the City University of New York. She graduated from Northwestern University and the University of Pennsylvania Law School.
I had the privilege of interviewing Ms. Kebriaei by telephone on May 17, 2016. My interview notes, as corrected by Ms. Kebriaei, are below.

The Talking Dog: Can you please tell us where were you on 11 Sept. 2001?

Pardiss Kebriaei: I was in my third year at law school at the University of Pennsylvania. I was coming out of classes. There were televisions set up in common areas, with students gathered around. We saw one of the planes go into the tower on t.v.; there was some confusion about what we were seeing. Other than that, I remember leaving school with my friend, and there was already speculation that this was a terrorist attack. Walking out of the school, we were in a daze. We walked into an ice cream shop to sit down and process this. I remember an unfortunate exchange with someone in the store in the nature of, "Now we should deport all foreigners", or something of that nature.

The Talking Dog: Please identify your still-detained-at-GTMO clients, by name and nationality. Please tell us something about each, such as their families, age, background or anything of interest, and finally, what their GTMO "Status" is, i.e., "cleared for transfer," "awaiting trial by commission," or "awaiting Periodic Review Board" or whatever is applicable.) Although they have been released, please tell us about your father/son Syrian clients (the Khan Tumanis), and whether they have had a chance to reunite since their release.

Pardiss Kebriaei: There are two men still held at Guantanamo who I am still actively representing, and visiting with some regularity; CCR, of course, represents quite a few more. These two men are Ghaleb Al-Bihani and Zahir Hamdoun.

Ghaleb Al-Bihani, ISN 128 He is Yemeni. His is about 35, and has been held at GTMO since 2002 without charge. He is one of the men that Obama had once designated as "too dangerous to release." The contention against him is that he was an assistant cook for a group aligned with the Taliban in Afghanistan. There is no allegation of fighting or firing a weapon, and his "associated group" no longer even exists. His detention was upheld by the District Court in Washington, and affirmed by the D.C. Circuit Court, and the U.S. Supreme Court denied cert. review. The Obama Administration reviewed his case, and put him the category of "can't charge but too dangerous to release."

When the Periodic Review Board, or PRB process, was set up, Ghaleb was the fourth person before the PRB. He had a hearing in the spring of 2014, and he was cleared for transfer by the PRB. The Board heard his statement about just wanting to go on with his life. His statement was acknowledged, and he was cleared for transfer... and yet he remains detained.

Ghaleb loves to paint. He is a real artist; it is a new found talent that he has discovered in prison. I have over sixty of his drawings. He has made a gift of them to me and to CCR-- they are a thank you for our efforts on his behalf. We have a few at CCR. They do have to be stamped by the military unit running Guantanamo - JTF-GTMO - in order to be released out of Guantanamo. Some drawings of a political nature, like depictions of the Statue of Liberty in chains or barbed wire, don't get out. Ghaleb paints a number of landscapes-- what he imagines life outside of prison looks like, or images of flowers as he imagines them.

He has diabetes and related complications. He is very physically sick, and struggling both physically and emotionally.

The other client I represent is Zahir Hamdoun ISN 576 . He too is Yemeni, and he is also cleared by the PRB (his hearing was in December 2015 and he was cleared in January 2016). The allegations against him are very low level-- that he stayed in a safe house in Pakistan, and as a matter of "guilt by association." Nonetheless, he was still found "too dangerous to release" and his review for transfer took years because of bureaucratic delays. He remains in prison with no clear prospects for transfer, before Obama leaves office.

Zahir was a good student. He is now in his mid-30's, but he was offered a scholarship to college after high school. While waiting for his scholarship, he left Yemen for Pakistan. He was ultimately captured in Pakistan. Zahir is smart, and is trying to pursue his education. He is close to his family, particularly to his mother and his siblings. Unfortunately, he has not been able to speak to them for
over a year because of the conflict in Yemen. The United States military requires the Red Cross to be present with the family at the time and place of their phone call, and as a result, Zahir hasn't been able to speak to his family; Zahir is particularly troubled that he hasn't been able to speak to his mother.

As to the Khan Tumanis, unfortunately, they have not been able to see each other since their release, not since the father, Abdul Nasser, was released to Cape Verde- another island- in 2010, or the son to Portugal in 2009. They skype, and talk by phone and the internet, but they have not been able to meet. The son, Muhammad, has seen his Syrian family (now refugees from the conflict in that country) in Turkey, but Abdul Nasser is stuck on Cape Verde, and even his wife cannot visit him there. Though Abdul Nasser communicates with his wife by phone and the internet, he has not had a single moment with his wife since he has been detained at Guantanamo.

The Talking Dog: Please tell us the status of your "drone" cases, Al-Aulaqi v. Panetta, which challenged the killings of three American citizens in U.S. drone strikes in Yemen [and, to the extent any part of the case is viable, Al-Aulaqi v. Obama, which challenged the authorization for the targeting of an American citizen added to secret government “kill lists” although obviously, Anwar al-Aulaqi and his then 16-year old son Abduulrahman were both killed in separate U.S. drone strikes]. I am interested as much in the "public relations" or "atmospheric" fallout as in the legal system's handling of these cases (i.e. "abdication"). What do you think are the broader implications of what now appears to be an enshrined "liquidation of enemies of the State" doctrine into American law?

Pardiss Kebriaei: There were two court cases. The first case was called Al-Aulaqi v. Obama in 2010, challenging the authorization for the killing of Anwar Al-Aulaqi before the killing took place. And then we brought the second case Al-Aulaqi v. Panetta, in 2012 as a damages case after the killings of Anwar Al-Aulaqi and two other American citizens, Samir Khan and Al-Aulaqi's 16 year-old son, Abdulrahman. Both cases ended in the U.S. District Court in Washington, D.C. on jurisdictional grounds. In the first case, our argument that the Fifth Amendment due process clause was violated by the execution of someone on a secret kill list was rejected, and the case was found to present a "political question" and was dismissed. Nasser Al Aulaqi, Anwar's father (and Abdulrahman's grandfather) who was our client, decided not to appeal. In the second case, which also terminated in the D.C. District Court, the court actually rejected the government's "political question" argument, but ultimately dismissed the case on Bivens grounds-- that the question raised national security concerns, and hence "counseled hesitation." This dismissal took place in 2014. By then, Nasser and the Al Aulaqi family, as well as the family of Samir Khan, who was also killed in the drone strike that killed Anwar, decided that they could not receive justice in American courts, and decided not to appeal that case either. and so, both cases ended at the District Court level.

Because of these dispositions, the constitutional questions have never actually been answered by the higher courts. The government, of course, claims that there is "agreement" on the validity of extra-judicial killing by the judiciary, the executive and Congress, but the only court to weigh in on this was the D.C. District court, and even it did not opine on the broader question of the validity of the practice.

I note that there has been progress outside of the judicial process, however. We did manage to shift focus away from the government's specific allegations against Anwar Al-Aulaqi to the broader question of the government's claimed authority to secretly identify, target and kill enumerated "enemies" without any public accounting. The most significant moment of public debate took place in 2013, after the leak of a white paper (a redacted Justice department memo) which discussed the authority for the targeted killing of Anwar Al-Aulaqi.

There has also been some greater degree of transparency-- not full or meaningful transparency, but more, and our litigation was the key to spurring that.

Of course, since 2012, the landscape of the world has changed. The challenge is the distance-- both metaphorical and geographic-- between the U.S. public and the government's conduct. The geographic distance is obvious-- these actions take place far off in other countries, and the public just doesn't see what the government is doing. Furthermore, the secrecy of the actions provides invisibility-- there is a lot known, but very little information from the government.

But now there are raging wars in Iraq, Syria, Afghanistan, now in Yemen in addition to continuing strikes outside of conventional battlefields, in Pakistan, Somalia and other places, and there is just a fog about the United States and its war making. Indeed, it is overwhelming even in trying to critique the government's conduct, when it is so difficult to know what the government is doing.

And so, in the last few years, there has been quite a bit of backsliding. The world is different- before we "just" had wars in Afghanistan and Iraq, and regular strikes "outside" of the"battlefield"-- but now the U.S. has managed to create "battlefields" in multiple countries all over the place and what it's doing in each of those places is largely in a fog.

The Talking Dog: And in the "American justice system," you also have involvement in the representation of Fahad Hashmi, who pleaded guilty to the nebulous charge of "material support of terrorism," for supposedly allowing an acquaintance to stay in his apartment in London for about two weeks, and "store military gear" there, consisting of socks and rain ponchos; Hashmi, as I understand it, is serving fifteen years sentence at the federal super-max prison in Florence, Colorado, largely in solitary confinement in circumstances perilously similar to many GTMO detainees, who themselves will soon be approaching fifteen years there, albeit with no established release date. Please tell me your impressions of Hashmi, and the system that imprisoned him. The tie-in question I have is whether you would concur with my observation that extraordinarily draconian prison conditions-- both the prison conditions and the length of sentences, even for minor "crimes," particularly for people White Americans perceive as "the other" (and I understand Hashmi is of Pakistani origin and a devout Muslim)-- have become perceived as a "normal" circumstance in American life, making it, in some sense, hard for many Americans to perceive GTMO as a particular aberration, all things considered? Further, do you observe something eerily similar to Hashmi, who allegedly received the full panoply of due process rights (whatever that means these days), but was ostensibly imprisoned for allowing socks and ponchos to be stored in his apartment in another country, to GTMO detainees who may have simply stayed at the wrong guesthouse or been wearing the wrong watch or some other unfortunate trivia (deemed extraordinarily "material" as a pretext for ongoing detention) at the time of their apprehension?

Pardiss Kebriaei: Fahad's situation is that he was charged with material support of terrorism, support of al Qaeda, based on having stored an acquaintance's luggage at his flat in London for about two weeks, and that luggage was supposedly delivered to an al Qaeda senior member in Pakistan. The luggage as you noted contained socks and rain ponchos. Fahad faced seventy years in prison-- he pleaded guilty only after having been held for three years in solitary confinement and "special administrative measures" or SAMs limiting communication with the outside world, to one count of material support of terrorism and got a fifteen year sentence. The conditions he was held included 22-24 hour a day total isolation, and three years of SAMS pre-trial. SAMs are in part a restriction on speech-- an effective gag not only the prisoner, but on his family and advocates. After three years of this, that was the condition under which Fahad's conviction was obtained.

After conviction, he was transferred to the federal ADX "super-max" at Florence, Colorado, where he continues to be held in that level of isolation-- indeed, the prison is half underground-- and hundreds are held there in similar conditions. He was in the Florence Admin. Max, or ADX, from 2007 to 2011, under SAM conditions, isolated and gagged. In 2012 he was transferred to the so-called "Communication Management Unit" in Indiana -- he is not in solitary confinement, but it is a type of group isolation. There are two such facilities (one in Indiana, one in Illinois). They are disproportionately full of those convicted of terrorism, heavily Muslims. Communications management is another euphemism for a gag on speech. And all visits have specific restrictions. Fahad's parents have not been permitted to embrace him since 2007... their visits happen through a thick glass partition. His situation is that he continues to serve his sentence, and hopefully he will be released in 2019, although he has doubtless been damaged from years of solitary confinement conditions.

As to his treatment via the judicial process, when compared to how Guantanamo prisoners are treated, one does not see a great deal of daylight between them today. If you look at the basis for Fahad charges and the basis of detention for my GTMO clients, on both sides it's often a matter of a guilt by rather broad association. Fahad's criminal process was a plea deal after three years in solitary confinement. Fahad's torture did not look like "enhanced interrogation" techniques-- there was no dog leash or sexual abuse or water-boarding or other Medieval type tortures-- but solitary confinement for years is torture in a different form. There were a lot of similarities in what I have seen at GTMO, what I have seen in Fahad's case, and in other situations I have seen stateside.

I no longer see GTMO as an aberration or unique in the American context. Its roots clearly exist in the United States. At best, GTMO is just a grotesque manifestation of things that were happening here already, and unfortunately, still are.

The Talking Dog: Please tell us the status of your cases involving the alleged prisoner suicides in 2006 (I note that last year I did my own interview with Joseph Hickman, a soldier who called into question the "official story" of those events), both in U.S. federal courts (to the extent still extant) and to the extent applicable, other fora, such as the Inter-American Commission on Human Rights. To the extent you can answer this, have the events of that night-- which I also understand may have involved now released UK resident Shaker Aamer-- resonated with the public (be it the American public, or any other public)?

Pardiss Kebriaei: The status of that case is that it was first brought as a Bivens action in the D.C. District Court. We first alleged that the deaths were unlawful under the military's own publicly disclosed theory. It was dismissed on national security grounds. There was then a good deal of new information disclosed by Joe Hickman's observations, that the "suicides" may well have actually been murder. We alleged this in a second amended complaint, which was also dismissed.

What the families we represent want is a meaningful inquiry-- an accounting of how their children actually died. This has yet to happen. There are military investigations, and some redacted reports of those have come out, but they raise more questions than they answer, and thus far, only the military has been permitted to investigate. Whether the men were actually murdered or took their own lives because of depression or despair over the conditions of their confinement is an open question. There has been no accountability of any kind for anything associated with these deaths.

We appealed the dismissal of the civil case to the D.C. Circuit, which affirmed the dismissal. We did not take this any further in U.S. Courts.

We filed a petition in the Inter American court of Human Rights, and that body's decision on admissibility (i.e. whether it can or will even hear the case) is still pending. There is a huge backlog of cases before that body, and it often takes substantial time before it decides if it will even hear a case at all.

The families we represent just want to know why their children are dead. The father of Yasser al-Zahrani still carries around a picture of his son, and he has been waiting for ten years to know what happened to his son. Yasser, who was only 17 when he was taken into custody, was actually about to be transferred.

These deaths were right after the long "incommunicado" period-- secrecy enabled the brutality of the early years at Guantanamo to largely still be unknown. Neither of the families of the two men we represent (the second is the family of
Salah Al-Salami; from Yemen (the family of the third deceased detainee did not want to litigate) know the real details of their sons' death. The two men had not even met with a lawyer at the time they died-- the only information we know about them has been provided by the government itself. We at least know some more details thanks to Joe Hickman and a few soldiers who said they needed to speak out and clear their consciences.

The Talking Dog: Please tell us about the "No Separate Justice" campaign, and other advocacy efforts (besides CCR) in which you are engaged? Again, this is a broad "general interest" question, but do you see these campaigns as particularly resonating with the American public, and do you have a view of why that is? Do you have an overall view on media coverage of these issues-- i.e., adequate, inadequate, no interest on the part of the public, or any other way you think is relevant to answer?

Pardiss Kebriaei: No Separate Justice grew out of frustration on the part of families of people who have been charged domestically with crimes relating to terrorism and the invisibility of abuses in their proceedings. There has been little analysis of what goes on in these proceedings. These cases get thin reporting at best, and little scrutiny or analysis, if any.

No Separate Justice is an attempt to shine light and generate awareness of government abuses in this context. It's something that I expect to evolve, in the manner of Guantanamo activism, which grew into a large scale international campaign, but it certainly did not start out that way. And so we are starting from scratch, domestically, addressing domestic terrorism prosecutions.

We have to recognize that human rights groups have had a role in the invisibility of domestic terrorism prosecution. The messaging surrounding Guantanamo is that "we need to return to the federal system and the federal courts." But, in hearkening to "the competence and strength" of the federal system, and its high conviction rate and the like, the effect has been to whitewash what actually happens in the federal courts themselves, which also needs to be carefully examined.

So we activists have had a role to play in generating the invisibility of abuses in these domestic terrorism prosecutions, and No Separate Justice is trying to expose the broader issues.

The Talking Dog: In a recent Guardian article, you provided some quotes from GTMO detainee Zaher Hamdoun; one of them is:

Will Obama’s conscience weigh on him when he remembers that tens of human beings who have fathers, mothers, wives and children have been waiting here for over 13 years, and some of them died before even seeing their loved ones again? Will his conscience weigh on him and make him finally put an end to this matter? Or are we going to remain the victims of political conflicts, which we have nothing to do with?

My question to you concerns (my college classmate) President Barack Obama, who, of course,campaigned to close GTMO, promised to close it within a year of his inauguration, didn't succeed, promised ongoing periodic reviews of the men there, which are slow at best (and mostly incomplete) , has recently submitted a plan to close GTMO that ostensibly simply moves it stateside. and, although he has managed to release over 100 men, has been a disappointment to many who have been paying attention. What do you see happening for the remainder of his ten months or so left in office (i.e. will he undertake extra effort to end this situation as "a legacy thing," or do you believe he'll hand this mess to his successor (Hillary Clinton? Donald Trump?), who, in turn, will muddle along with it, until, perhaps, at least some detainees are four or even eight years older? And quite frankly, do you see any circumstances besides the collapse of American global military and political dominance that will bring about the final end to the Guantanamo predicament [and even if GTMO itself is shuttered and razed, where do you see American policies of indefinite detention going?] Do you have any comment on how GTMO is playing in the American political process now (Republicans promise to expand it, Democrats don't talk about it much)?

Pardiss Kebriaei: The bottom line is that Obama's plan to close Guantanamo is not a plan to close Guantanamo at all. The idea is not to actually close the prison, but to reduce its population, and, at the end of the day, whether the literal prison facility in Cuba is shuttered and the remainder of its prison population is moved elsewhere or the existing place stays where it is, the Administration intends to continue the underlying policy of indefinite detention, unabated. The only question is just "how many people," followed by whether those people will be detained in Cuba, or moved here (to the United States mainland). And that number is unknown. And this is all the Administration's own words.

I believe that between now and next January when Obama leaves office, they will try to transfer the two dozen or so "cleared men" (some of whom were first cleared by the Obama Administration in 2009). The State Department is definitely working on this. Of course, there are serious concerns about the circumstances that men released from Guantanamo face upon resettlement or repatriation, and, not enough attention has been paid to post release experiences. But State is definitely trying to transfer men to third countries (or to their own countries when possible).

The PRB process will continue. It was first set up in 2011, and should have cycled through all the men at least once by 2012-- but the first hearing was not held until 2013, and still, many men are waiting for their first look by the PRB. There is a lot to be said about these delays. Obama has tried to point a finger at Congress when it comes to obstacles to closing GTMO, especially Republicans there, but the PRB process is entirely within his Administration's control, and he simply has no defense as to why it took two years to have even the first hearing. Of course, in 2011, GTMO had fallen off the agenda, and only after the 2013 hunger strike, when the detainees themselves finally took action, did this become a priority of the administration again.

And so the PRBs will continue, notwithstanding how delayed this process has been so far. The issue now is that so many men are having their proceedings go at a breakneck pace, that there is a genuine question as to whether prisoners can have meaningful participation in this process.

And there is the separate question of the fact that the PRBs don't address the underlying legitimacy of the "indefinite detention" paradigm, i.e., that we can hold people without charge forever is an intrinsic assumption of the whole process. The PRBs were at least supposed to accomplish a "meaningful look" at each prisoner-- but it's not clear that is how it's all playing out, especially for those men still waiting for their first review.

The Administration's "preferences" would be for PRBs for men who have not yet been cleared but won't be charged, and release of those who can be released. The preference was at one time to use the federal courts to try the tiny number at GTMO who have even been or ever will be charged, but the military commissions process obviously still exists, and is so far the only system that has been used.

At the end if the day, there will also be a group of people supposedly "needed" to be held without charge-- soon to be in their 16th year, and under their third different Administration.

I think GTMO will continue for some time to come. The main issue is where it will be (and how many men it will hold) and, of course, what will a new President do-- expand it? Or limit it to people already there?

The Talking Dog: I understand that you have devoted your career to international human rights work. How have you been effected by your Guantanamo and "war on terror" representations, from the standpoint of personally, professionally, or any other way you'd like to answer?

Pardiss Kebriaei: I've certainly been personally transformed. The work has taken quite a personal toll-- you cannot care and get up close to our clients-- and I say this both for myself and my colleagues-- and not have it get to you. It's been very hard that way, but then, it's also been the most meaningful, as well as the hardest work experience I've had.

Through the years, I've come to realize the limitations of a purely legal and litigation-based strategy, I've seen the need for other ways of working through these issues. And so I look now at efforts developing to start a new generation of habeas cases, and see this as possibly necessary and appropriate, but realize that we should learn lessons from the limitations of Guantanamo advocacy over years past, and what works, and what has not worked, and move forward on that basis.

I also think Guantanamo has to be placed in a broader context, concerning the wider questions of how we punish people, how we treat our "enemies," how we define our enemies. We have to be cognizant of how much we have talked about Guantanamo in isolation, and how we need a broader movement and to address issues at a much deeper and more basic level, and not just address one particular situation at one particular place.

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

Pardiss Kebriaei:As I think about the personal and professional effects on myself, I think about Michael Ratner, who was such a source of support. I think about his sustainability. You look ahead, and whether you see a President Clinton, or worse yet, a President Trump, and you can see an endless cycle of abuses continuing and repeating itself over and over again, and it can be daunting. So I think about Michael, about his life's work, and his stamina and dedication. Was he optimistic? He had a certain hope-- I'm trying to channel that.

The Talking Dog: I join all of my readers in thanking Pardiss Kebriaei for that extremely 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 Nancy Hollander, Jon Eisenberg, 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 sergeant-of-the-guard Joseph Hickman, 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, and with Rebecca Gordon, author of "The New Nuremberg" identifying potential war crimes prosecutions arising from the conduct of the War on Terror,to be of interest.