The reports Americans receive from Iraq consist of a number of varieties, either (and most frequently) casualty reports of car bombings or attacks on convoys resulting in Iraqi and American deaths, or (on occasion) reports from the President or the Pentagon or other "official" sources that our media "is not reporting the good news out of Iraq." Somewhere in that spectrum, as usual, a great many "human stories" are not being reported. I have the good fortune of being able to convey at least part of one of those stories to you.
After an e-mail "introduction" from Mark Goldrup of Spirit of America, I was "introduced" to Staff Sergeant Shanona Gregozek, now serving with a Civil Affairs unit stationed in and about Mosul, Iraq. Sgt. Gregozek was kind enough to provide thoughtful, detailed answers to some questions I posed to her concerning herself, her mission, and a notable project, specifically her work with the KWU (Kurdistan Women's Union).
The "interview" consists of an e-mailed "Q&A"; I have not edited Sgt. Gregozek's responses in any manner.
Talking Dog: Where were you on September 11th, 2001?
Shanona Gregozek: I was on vacation in San Luis Obispo california- woke up in the morning and found out.
Talking Dog: I understand in your civilian life, you're not exactly a
civilian; can you tell me what you do back in Huntington Beach [California] for
the Police Department there? When did you join your reserve unit?
When were you activated for your current mission?
Shanona Gregozek: I work as a patrol cop in HB- been on the job about 8 years now. I first joined the national guard in May of 1993. I left the National Guard in May of 2002 and took some time off. The war started in March 2003- I couldn't sit by as it happened- so I signed back up. I joined this unit to get deployed to Iraq. I got notified in February 2004 I was most likely going to be deployed. In June we learned we were definately going- and in July we left for our pre-deployment training- we were in Theatre by early September.
Talking Dog: Do you have a significant other and/or children back
stateside? How difficult has it been for you to be away from your
loved ones?
Shanona Gregozek: I don't want to give detailed info on my homestead-- but I do come from a large family. I love them and miss them. My mother and a cousin of mine have been exceptionally supportive. Some members of my family were not happy I was coming here- they didn't believe in the war- but I do, and my convictions were strong to stay in this unit and deploy. It's not been very difficult- I've lived away from my family for many years- so I am used to only communicating thru emails and phone calls. This isn't much different than normal.
Talking Dog: I understand that you are in a "civil affairs" unit. How important do you believe public affairs are to the overall
American and coalition mission in Iraq in particular, and the war
on terror as a whole?
Shanona Gregozek: The bad guys have excellent Public Affairs resources, such as Al Jazeera. I believe getting the word out about what the Coalition forces are doing in Iraq is an excellent way to combat the negative media we hear a lot of. The truth is in war, people are going to die, they are going to get hurt- but there is also a lot of good that no one seems to know about. You know, as a writer, that there are many people who believe everything they read. If the only thing for them to read is the bad stuff, they have only negative opinions- if anything, good reporting creates doubt about which is real and causes people to look into it more if they care enough.
Also- on a sidenote- you know Civil Affairs and Public Affairs are completely different branches? Look up CA on the Army website- it'll fill you in.
Talking Dog Do you believe we are devoting enough effort to civil affairs, public relations and other efforts to get the Iraqi people to "buy
in" to our mission there, as opposed to winning military victories
on the ground-- or more specifically, do you believe that we would
be well served to increase resources, people and money that we
devote to the types of missions that your civil affairs units and
others like it are engaged in?
Shanona Gregozek I believe the Army is dedicating lots of effort into CA missions. It is difficult to do CA work because we are trying to re-structure a country that is still in turmoil. Our units frequently come under attack, and the work we do is sometimes destroyed- which is very frustrating.
The ground mission- winning military victories- is still crucial. Soldiers are dying every day coming under enemy attack. We're not safe on the bases because of mortar fire, sniper fire, and threat of suicide bombers (several successful strikes have occurred since I've been here). Finding and destroying the members of the insurgency is vital. It is vital for our lives as well as the lives of the Iraqis- who have been targeted more frequently as of late.
Civil Affairs is short handed- they have high standards to get in, so it's not available for everyone- it's good because we get higher quality soldiers- but also it hurts us because we are low in numbers.
I cannot pick between the combat forces and the CA elements to say who needs more resources- I just know that those two branches are extremely important at this point in the war. CA is important because of the huge impact on restructuring efforts, and combat troops are important because they are making the cities safer for us to do our work. We are symbiotic.
>
Talking Dog Please tell me about your work with the Kurdish (Kurdistan?) > Women's Union, and especially about its work. How did this come
to be your mission? Without disclosing anything sensitive, can
you tell me what other types of functions you and your unit are
performing, and in what parts of Iraq you have been involved in?
Was the KWU project in place before you arrived in Iraq, and is it
something that will continue after your tour ends?
Shanona Gregozek: The KWU has a website that will give you tons of info. Just google them. You can also get the info from Mark Goldrup. But in a nutshell, they were in place long before we got here. The KWU knows exactly what they need and what to do with what they get from us or other sources. They are very resourceful, take care of property in their charge, they are motivated, and very effective. They are taken seriously by the government in their region. They were hugely intrumental in getting the women in the population to vote- if you are aware the new leader of Iraq is Kurdish. The Kurds understood to get the women, who are 51% of their population out to vote to get their numbers (they are the minority in the country) up high enough to elect their own guy into office. It was smart and it worked.
This came to be my mission because the town we worked in as the sole CA element there- I was the only female NCO. However, because I am a police officer back home, I was also assigned to work with the police department. Also, I was on a four soldier team assigned to work two districts in our governorate. In those districts we looked after school renovations, well digging, donations, etc. So I was very busy and could not dedicate all the time I wanted to the KWU. Also, which I agree to, the Army felt National Security of Iraq was most important. So my work with the PD was priority.
My AO was the north Iraq (Kurdish) region. The rest of our battalion is spread through the Arab areas of North Iraq- Mosul and Samarrah.
Talking Dog Are you aware of similar women's groups operating elsewhere in Iraq (or the Islamic world, for that matter)? Anything additional
we should know about the group? Anything additional we should
know about Spirit of America and its projects?
Shanona Gregozek: The KWU actually has branches all over Iraq- 81 total. There's even one in San Diego California. The HQ is out of Erbil and run by a woman named Shirin- who is also a member of the Kurdish Parliament. They are equal opportunity, although they are called Kurdish Women's Union, and most Kurds are Muslim- there are members who are Christian, Arab Muslims, and Yazidi. I know Spirit of America does many projects in this country. I am not affiliated with them. I know there are women's groups in Afghanistan- I have read articles about some amazing women.
Talking Dog Have you been involved in any combat operations, or combat situations? Has your unit?
Shanona Gregozek: Yes. Unfortunately we have lost soldiers, and had several significant injuries in our soldiers from enemy action. There are many units that have suffered heavier losses- but losing any American soldier is a huge tragedy to units here.
Talking Dog: Have you encountered any journalists, embedded or otherwise, and how many? Has your story, or your work with the KWU been
widely reported... or reported at all? Have you observed any
journalists operating in Iraq?
Shanona Gregozek: Yes. Nic Robertson of CNN came to stay with us. I took him to interview the Chief of Police I work with (Brigadier General Chief Nazar Aziz) as well as the KWU director Jula Haji. He had both stories on his broadcast later. I have had other reporters request interviews but I turned them down- for various reasons. Mostly because I want good publicity for these groups.
Talking Dog. What kind of access do you have to how events in Iraq are covered here? As far as you are aware. do you believe the
reporting is "fair"? Is there anything in particular that you
believe people here should know, or need to know?
Shanona Gregozek: I have lots of access to reading the news. The bases have lots of amenities now compared to the start of the war. We have satellite TV, Army Times newspaper & internet.
No, not all reporting is fair, but that's well known. There are many groups out there with their own opinions and agenda and either report false stories or don't include all the facts in order to make the story go along with their way of thinking. Frankly that pisses me off- reporters should be objective. As people, we can't help but have opinions, but we need to swallow that when reporting the news. They should state facts and let people form their own opinion. Now, that's my opinion..
There's so much people should know. For starters- soldiers are human, most of us are compassionate, patriotic, and consider all fellow soldiers their family. A lot of people paint us as heartless murderers, occupiers, etc. There are harsh penalties in the military for anyone who violates rules of engagement, or general orders. I get the feeling some people think we cover up bad things, we don't. No soldier wants a bad seed in their company, it ruins morale and drags us all down. We correct each other if there's problems. I could go on forever. But I won't.
Talking Dog: I'm sensing from the tone of your e-mails that you're very upbeat; can you tell me what you've observed morale among American
and coalition personnel to be?
Shanona Gregozek: Soldiers are amazing people. We deal with death, stress, being away from home, injuries, extreme weather, etc- there are individual cases- sadness happens, people get down, we've all been there- it sucks. But there is always someone who will recognize it and lift you up. Overall, we take a really potentially lousy situation and have as many good times as we can out of it. Comraderie helps, exercise is extremely important, friendship is extremely important, respect for each other is also important. I could go on for a while- but overall my experience has been good. Most of the people I have met here have been accomodating, professional, and very good at what they do. I am honored to be in their company & I feel like most of them feel the same way.
Talking Dog: How long is your tour of duty?
Shanona Gregozek: It'll be 10 months in Iraq once we leave here- then we have 6 weeks til we're off orders we'll spend that time getting our equipment cleaned and fixed- I've trashed most of my stuff!!!
Talking Dog: Any other questions I should be asking you?
Shanona Gregozek: Nope. Can't think of anything right now.
Your talking dog has been quieter than usual thanks to his ongoing computer problems (which translate to: "I haven't gotten round to replacing the dearly departed ex-computer") and am on a... borrowed terminal! In other hobby news, your talking dog ran down and back to complete the Delaware Marathon , which cooperated with unseasonably warm and humid weather for the fourth such marathon in a row (note to self: consider carefully before running such event in region of large glaciers without packing scuba gear...)
So, how 'bout Newsweek and its story of Guantanamo Bay Gulag Guards flushing the Koran down the toilet? Now the magazine seems hellbent on some kind of a non-denial denial, amidst a general retraction. One wonders where this story will go. As you'all know from firsthand sources that you have read on this very blog, it is almost inconceivable that the Newsweek story is NOT true: disrespecting Moslem men seems to be a key part of our "interrogation" techniques, so, since, sexually humiliating men and women, torturing women and children, suffocating men, or urinating on them, or dressing them up in garb wired to electric connections, are all fair game, I mean why not flushing a holy Koran down the toilet? Doesn't seem to be a big stretch.
Anyway... the story will not so much be about the underlying offense, or even the deaths from rioting in Pakistan and Afghanistan in response to the reporting, as, of course, the reporting itself. Since it embarassed the Bush Administration and/or policy, someone will have to pay. Look for a couple of people to be fired from Newsweek, and order will be restored to the universe, at least here.
One of these days, we may just be in for a rude awakening as to what people in the Islamic world think of how we conduct ourselves... Oh wait. I keep forgetting that 9-11 changed everything.
Mybad.
In November, 2004, shortly after the reelection of the American
government which was in power at the time of the largest foreign attack against
the United States on North American soil since the War of 1812, attorney Joshua
Dratel was arguing on behalf of his client, Australian national David Hicks,
at a military commission in a courthouse converted to accommodate classified information and proceedings on an American military base at Guanatamo Bay, Cuba, set up as one of the many ad hoc responses to that attack by that government. A short time later, U.S. District Judge James Robertson would stay the military commissions as unfair and unlawful, for a variety of reasons, and the commission proceedings have been stayed accordingly, pending the outcome of an appeal.
In the course of this representation, Mr. Dratel, who was assembling his own set of documents associated with American conduct of "the war on terror", joined forces with Karen Greenberg, a historian at New York University, who was assembling her own set of documents, and the two collaborated on editing a lengthy tome called "The Torture Papers: the Road to Abu Ghraib."
On April 28, 2005, Mr. Dratel spoke to me by telephone. Below are
my interview notes (which, in some cases, reflect corrections provided by Mr.
Dratel):
Talking Dog: Where were you on September 11th?
Joshua Dratel: I was at home in my apartment in Battery Park City,
just to the West of the World Trade Center. At that time, my apartment did not
face the towers directly, but I could see both clearly from my window. I heard the first plane quite distinctly. I first thought it was a plane crash to the west, the way the noise reverberated, but then I looked outside, and saw people running, and knew it involved the World Trade Center. The sound reverberated. After the second plane hit, I went down to the courtyard of the apartment building, where we saw the collapse of the South Tower. When that blew out, it unleashed a cloud of dust and soot, and you couldn't see in any direction, but you just kept moving. A lot of people bumped into things on the promenade along the river, including trees. I wound south around the bottom of Manhattan and then uptown.
Talking Dog: Do you know where [co-author of "The Torture
Papers"] Karen Greenberg was?
Joshua Dratel: I'm not sure where she lived at that time.
Talking Dog: Did you know where [co-counsel for David Hicks,
Marine Corps Major] Dan Mori was?
Joshua Dratel: I believe he was either stationed in Hawaii at that time... or possibly Thailand.
Talking Dog: Do you know where Mr. Hicks himself was [and if it would violate a confidence, just let me know that]?
Joshua Dratel: That's not something I can tell you.
Talking Dog: How did you come to represent Mr. Hicks?
Joshua Dratel: That was a confluence of circumstances. I had
been involved in the embassy bombing cases in early 2001. As a result, I marshalled expertise on the subject of terrorism cases. I had some relevant foreign travel experience. And it was felt that my experience could be a resource. I had been appointed a co-chair of a committee on military tribunals of the National Association of Criminal Defense Lawyers. In October, 2003, at an NACDL meeting in New Orleans, I met Dan [Major Mori]. We hit it off, and thought I would be helpful to the defense of David Hicks. At the same time, Joe Margulies [of the Center for Constitutional Rights]-- who represented Hicks, as well as the rest of the Guantanamo detainees, managed to get the Supreme Court to accept certiorari (review) of the Rasul case. Joe felt he might be conflicted out of individual representations of the detainees once the tribunals began, because the detainees would likely be aligned as witnesses against each other, and so it was thought that a "conflict" counsel might be needed. So Joe was looking for such a conflict counsel. By coincidence, I also knew Joe's wife, Sandra Babcock, a lawyer who successfully brought a case involving Mexican death row inmates to the Supreme Court (for failure to allow the inmates prior consular meetings and other procedures mandated by treaty and international law). Sandra knew me because she represented another embassy bombing defendant. I was probably the only lawyer that Dan and Joe both knew! The task for me seemed simple, and confined: just serve as
conflict counsel, if necessary. Dan [Mori] and [Australian lawyer] Steve Kenny were representing Hicks as of December, 2003, but at that time, it was apparent that Joe Margulies' conflict situation was intractable, and that David needed representation in the commission process. Dan and Steve and asked me to step in, and I did. I became lead counsel to David in the commissions, and am also part of the team handling David's civil habeas corpus petition in the federal court.
Talking Dog: Mr. Hicks has received far less interest here
than the case of John Walker Lindh. Besides the Australian vs. American
nationality, any reason why? Has this been a cause celebre in Australia? Do you think Mr. Hicks' prior lawyer Steven Kenny did any harm to Mr. Hicks' plight? Do you believe that Mr. Kenny's criticism of the Australian government
presented any problems for Mr. Hicks? Can you comment on any of this?
Joshua Dratel: Certainly, Mr. Hicks is virtually unknown here,
unknown to the American consciousness. He gets some press coverage in the
Adelaide (South Australia) area he's from. There's a web-site devoted to his
plight. Unless an American citizen is involved, there is, of course, much less
interest here. And Lindh was the subject of saturation coverage here, so much,
and for so long... I certainly don't think that Steve Kenny did any damage to
David's case... I think there was some misinterpretation of something I said
in the Australian press; there was nothing wrong with Steve being critical of the Australian government; I had also said enough things critical of the Australian government. We were discussing bringing in a foreign attorney consultant from Australia as we got closer to trial, because we wanted someone with more criminal courtroom and preparation experience. Independent of that decision, which was in the works for quite some time, I felt we had exhausted the productivity of constant criticism of the Australian government. Naturally, the Australian press interpreted this as "we were sacking Steve." But that was a misinterpretation.
Talking Dog: Any reason why Mr. Lindh was charged with a crime, whereas, for example, Yasir Hamdi, also a citizen, or Hicks, were denoted "enemy combatants" and not charged, while Zaccarias Moussaoui WAS charged? Has any of this ever been explained?
Joshua Dratel: It seems that the only "overt distinction" is that
by original design, citizens are not eligible for the military commissions.
Of course, they never made a distinction there in the case of Moussaoui-- his
case seemed to be the product of a debate betweeh the Departments of Justice
and Defense as to which should prosecute him, and at that time, the criminal
justice people prevailed. They have not, apparently, prevailed since.
In addition to Jose Padilla, as citizen unlawful combatants, a man named Al-Mari is still being detained in a brig in South Carolina; he's represented by Larry Lusberg of the Gibbons firm in New Jersey. That case is completely off the radar.
Talking Dog: I understand that every government whose citizens were detained at Guantanamo Bay-- except Australia-- lodged a demand that their citizens be returned to them. Do you know why Australia has not asked for Mr. Hicks' return?
Joshua Dratel: Actually, Australia is the only Western country
in that category; some Middle Eastern countries have not been pressing for
their nationals. Citizens of other Commonwealth countries have been returned to those countries, and in every case, released without charge. For whatever
reason, Australia has not demanded the same status that Britain and other
Commonwealth countries obtained for their ciitizens (which got them released
ultimately, insisting that the military commission process was entirely unfair). For whatever reason, Australia has not done that for Mr. Hicks, and he remains
detained.
Talking Dog: At the moment, am I correct that the unlawful
combatant military commission trials have been stayed by Judge James Robertson in Washington? That decision is being appealed by the government to the DC Circuit? Any idea of when it will be argued?
Joshua Dratel: Well, it has already been argued before the D..C.
Circuit on April 7th; we obviously don't know when a decision will come down.
A stay in the case of detainee Hamdan was issued by Judge Robertson, and that
resulted in all the military commission proceedings being stayed until the
appeal is resolved. Judge [Joyce Hens] Green [of the U.S. District Court for the
District of Columbia] also agreed that the detentions and enemy combatant determinations were invalid because they violated the Geneva Convention and did not afford due process. Since then, the federal court proceedings have also been held in abeyance pending the appeals. Judge Green's decision conflicts with a decision from Judge [Richard J.] Leon of the same court that there were no rights the detainees could invoke via habeas. Judge Green went to the other way. This all went up to the D.C. Circuit, separate from the Hamdan
appeal, it involves Geneva Convention issues. The commissions have stopped
for the moment. We all will have to wait and see what the D.C. Circuit does
with all of this.
Talking Dog: Can you briefly summarize what you in particular
find unfair about the military commission process at Guantanimo?
Joshua Dratel: Basically, there are no rules. The Uniform Code
of Military Justice, which governs court-martials -- that's been thrown out. No standards at all. Total arbitrariness. No efforts at anything resembling fairness. Let's start with evidence and proof. People don't know this, of course. The government's "proof" consists entirely of interrogators reading from reports of their interrogations-- without any basis to challenge the underlying accounts of witnesses, such as the witnesses themselves (who have frequently been shipped out of Guantanamo) or their interpreters, or the conditions under which the statements were taken, which were frequently, to put it politely, "coercive." Just statements from the detainees themselves-- regardless of whether obtained from abuse, or coercion, even rising to torture. In the commissions, you simply can't challenge them-- you don't have access to the witnesses.
Talking Dog: I understand you spent a fair amount of time
challenging the panels and their members themselves.
Joshua Dratel: I'm glad you brought that up. That's another area of
unfairness. In a military felony case-- that's any case where the penalty
might be more than one year in prison-- and remember that these detainees might get life in prison or even death sentences-- you need at least 5 panel members under the UCMJ. Under the commissions arbitrary set-ups, they envisioned between 3 and 7 panel members. In David's case, they planned 5 panelists and one alternate. But we challenged the panelists, for a variety of reasons, and 3 challenges were granted. We thought they would appoint 2 more officers to bring the panel back to 5, but they didn't. Now this makes a huge difference. And that's because under military rules, you need a 2/3 vote for conviction. On a 5 member panel, that means you need only coNvince 2 out of 5 for an acquittal; on a 3 member panel, of course, its 2 out of 3... a much higher burden, and not one required by the UCMJ. Conversely, the government's burden is halved: while it needs four of five votes to convict in a five-member commission, it needs only two in a three-member commission. And then we get into the issue of the fact that in a court-martial,
there is one judge, and the panel acts as kind of a jury. Under this set-up,
the whole commission was supposed to make rulings. Of course, they had no
legal training (except for one officer, Colonel Brownback). But the panelists
couldn't absorb certain basic legal concepts-- such as 'ex post facto" and
"jurisdiction". For example, if a citizien of Country A (we'll call it "Australia")
is fighting in Company B (we'll call it Taliban Afghanistan) against Country
C (we'll call it the Northern Alliance of Afghanistan), in Hicks' case,
supposedly he was in a fox-hole guarding a Taliban tank position or something,
before he was picked up by the Northern Alliance, then how does Country D, the United States, get jurisdiction over him? I mean, the United States has no
jurisdiction over Hicks and his alleged actions-- completely lost on this panel.
Of course, the panelists' response was "you mean he just gets away
with it?" But the crimes he is accused of were not war crimes-- he was not even accused of shooting at soldiers-- as if that were a war crime, which it is
not. At worst, it was either a domestic offense (like treason) in Afghanistan,
or acting as a soldier of a military, in which case, he wouldn't be guilty of
a crime at all, but a combatant subject to the Geneva Conventions.
Also, of course, the evidence also is illegitimate because of the manner in which it was obtained-- all consisting of statements of detainees made under coercive interrogation or even torture. At the motions argiment, we wanted to call witnesses who were experts on international and military law. But the panel didn't want to hear any of them.
Finally, of course, Rumsfeld has controlled the appeals process by stacking
it with his own hand-picked cronies.
The objections to the process are not just procedural. The government's
entire case against everyone is based on interrogations of other detainees.
Nothing else.
Talking Dog: Did you consider it some kind of irony that you were representing an Australian in a kangaroo court?
Joshua Dratel: I always want to say that, but am afraid to because it's too corny.
Talking Dog: That's quite alright. I can say it, because I'm shameless. Have you been permitted to meet with Mr. Hicks? Can you tell me what kind of restrictions the government has placed on you with respect to
communicating with him?
Joshua Dratel: I've been down to meet with David seven times now.
The entire procedures of the Commission had long been objected to.
Procedures such as inability to ask for an adjournment, once the case starts, you can't leave the base (so the rest of your practice can go to hell!), restrictions on speaking to the client... other things that caused the National Association of Criminal Defense Attorneys to argue that participating in the commission process might be unethical for all involved... have been modified or eased up. I can communicate with David without being recorded or monitored. Origianally, they let me do this because I have a security clearance after the embassy bombing cases, and it was thought that David would quickly plead guilty and make their lives easier... it hasn't worked out that way...
Talking Dog: How has the Lynne Stewart prosecution affected your practice-- in general, and/or with respect to your representation of Mr.
Hicks, or as an association president [the New York Associatoin of Criminal
Defense Attorneys] do you know how it has effected other criminal defense
practitioners?
Joshua Dratel: It hasn't affected me at all (other than making me
read an 11,000 page record!) I've been in this kind of case, so I'm familiar
with the drill. However, other lawyers have certainly told me that they just
wouldn't take a sensitive case like that. They don't want to operate under
that much scrutiny-- they feel vulnerable in their own careers. It's a
problem-- they feel they would be intimidated into being less than fully zealous
advocates. Was this the intended result? I leave that question to others.
Talking Dog: Turning back to Mr. Hicks-- my understanding is
that he was a cowboy in Australia, and later converted to Islam, and found
himself in Afghanistan, supposedly at Al Qaeda training camps, and ultimately, was picked up by Northern Alliance forces while he was fighting on the side
Taliban forces, correct? Since the Taliban were recognized as the government of Afghanistan by at least Pakistan and Saudi Arabia, though not by the U.S. of
course, why isn't Mr. Hicks technically a prisoner of war, subject to being
released to Afghanistan, seeing as the war there is over? Has that been your argument to any forum that
would hear it?
Joshua Dratel: Yes-- that's exactly right. That's exactly the
argument that Judge Green accepted as the basis for her ruling. The United
States is holding the detainees in a manner inconsistent with the Geneva
Conventions. These detainees were entitled to Article 5 hearings, by a competent, neutral arbiter, of their status. as to whether they were prisoners of war rather than 'enemy combatants". Instead, Bush determined ahead of time that all combatants in Afghanistan were not entitled to protections of the Geneva Convention. Well, the President just can't make that determination, under our treaty obligations. There is no legal reason why capturedTaliban soldiers were anything but prisoners of war. That was the State Department's position-- that as a threshold matter, this can't be determined in all cases for the conflict in advance, but had to be an individualized determination.
This leads to the interesting question, are the courts viable
instruments in the war on terror. The response is most ironic-- the courts and the criminal justice system were the only things actually working to apprehend
terrorists before 9-11-- the military and diplomatic efforts were clearly not
working.
And yet, what happens after 9-11? The first thing we abandon is the
courts and the criminal justice process in favor of the military angle-- even
though it was the criminal justice process and courts that were actually
working and military and diplomatic means that were not..
Talking Dog: Were any actual witnesses called before Judge
Robertson halted the military commissions?
Joshua Dratel: No, just a lot of procedural arguments, mostly
about the fairness and composition of the commissions themselves, and the
process.
Talking Dog: Mr. Hicks has alleged in an affidavit that he was
subject to various forms of abuse (some of us used to call that sort of thing
"torture" before 9-11 changed everything), such as having his hands bound for
hours behind him until he was numb, having his face smashed into concrete, being provided a prostitute if he would inform against other prisoners, which he politely declined to do... what other allegations has he made? Can you tell me what other allegations of "abuse" that you are aware of-- either from Mr. Hicks or other prisoners-- without disclosing confidences of course?
Joshua Dratel: There was more than the abuse alleged in that
affidavit. The mechanics of the process are that we wanted a comprehensive
outline... I drafted it based on what David told me... along the lines of a law
enforcement agent swearing out an application for a warrant... you want the affidavit to be an outline, to say that there were other things, that were not in the affidavit, that would be detailed later when David would testify. The fact is, a full discussion would have been quite voluminous, and took hours and hours for David to relay it to me. But we wanted to get it out to the public-- too much specific detail, and we weren't sure if the court would ever allow the affidavit, which was filed under seal originally, to be unsealed. So we kept it limited as we did.
David's affidavit covers periods he was detained in Afghanistan, and
transported to Cuba, as well as in Cuba. Others have been detained in different
places. I would say that his allegations are typlical of the time of what
other detainees received. In some sense, Davied's treatment was better than what other detainees received. David speaks English, is from a Western country, and had his own lawyer early on. Indeed, David made cooperative statements-- so he got better treatment.
Talking Dog: Besides Guanatamo Bay, are you aware of other
locations where the American government is holding so-called enemy combatants who purportedly do not have either domestic criminal status or prisoner of war status?
Joshua Dratel: Only what I have read in public accounts in newspapers and the like.
Talking Dog: Any further comment with respect to your
representation of Mr. Hicks you think our readers should be aware of?
Joshua Dratel: Of the people released from Guantanamo so far,
there seems to be something in common: they are let at out at a critical moment when due process from the American government would have to be provided otherwise. This is quite galling, actually. Because as a result of this, we are sending people to their home countries who, if the accusations against them are to be believed, are remarkably "dangerous". We know this because "factual records" for each detainee released have been made public. David, who is not alleged to have shot anyone or committed any kind of a terrorist act, is still detained.
By contrast, consider another Australian national, Mahmoud Habib, who was
released. Why? He had previously been rendered to Egypt after transport
from Pakistan, and he alleged that he was abused (tortured perhaps) in Egypt.
Rather than grant discovery on this rendition issue, in a lawsuit brought by
Habib, the government abruptly decided to release him. Based on the government's allegations in the "factual record" it filed in the district court, Habib was alleged to have trained Al Qaeda terrorists in martial arts and hand to hand combat...
Talking Dog: Including the 9-11 hijackers themselves?
Joshua Dratel: Correct. Habib is alleged to have taught Al Qaeda
hijacking teams hand to hand combat-- and he goes home, whereas David sits in detention. David is not merely a seconde class citizen detainee, he is a second class Australian citizen detainee. There is no rhyme or reason to any of this.
Talking Dog: Let's turn to your book, The Torture Papers,
co-authored with Karen Greenberg, of NYU . How did you come to write that book?
Joshua Dratel: Karen Greenberg contacted me. She was preparing
a program on torture for her institute at NYU. I was assembling the documents
as part of my defenses of the embassy bombing case, and a terrorism case I was defending in Idaho, as well as for IN the Hicks case. She was collecting the
same documents. We put our collective files together, and then made an effort
to obtain every single publicly released document. In September 2004,
Cambridge University Press offered to publish the book, and we completed it.
Talking Dog: I bought a copy (and I'll bring it round for you to
autograph, if you don't mind!)...
Joshua Dratel: I tell people to buy it from Amazon-- its really
big, and they deliver it to your house...
Talking Dog: I know. It's longer than War and Peace. I bought it from my local bookstore... I can tell you that the two memos that put the biggest chill into me were the recitations by the President himself that he had the power to abrogate treaty obligations and other provisions of law for certain
people. Were there any memos in the book that you found peculiarly compelling for any reason?
Joshua Dratel: The two that had the most effect on me are the second one in the book, from December 2001. Its so stark in its purpose-- discussing habeas corpus jurisdiction at Guantanamo Bay and that it was beyond the rule of law! There can only be one reason for that, and it's not a good one. The other memo is from Gonzales to the President calling the Geneva Conventions "quaint and obsolte"-- that the Office of Legal Counsel at the Justice Department marshalled these laws for the President to make a decision designed for a result in mind... one must give credit to the State Department for insisting on trying to create a policy that was even handed-- though this did not prevail...
Talking Dog: Do you think that by and large the American people
really care about this issue at all, and why do you think that is?
Joshua Dratel: They care about some of these issues in the
abstract, but they have no idea how things are being done at Guanatanamo. These are not proven terrorists. there has been no determination of any value at all. You would hope that Americans would care about torturing the innocent. Certainly, there would be concern for OUR personnel in the hands of another nation. I'll tell you that the military people are very concerned. They are concerned about the reciprocal effects of our runnning a process that isn't fair, or capable of making objective determinations, even if no Americans are subject to them. But think about when it's our personnel-- such as when Private Lynch was captured-- how we demanded that she and others be treated per the Geneva Conventions. In the future, how can we make demands like that with a straight face-- or will others pay any heed when we ignore the conventions and flout the rules ourselves?
Talking Dog: What do you think will be the ultimate ramifications
of our nation's foray into extra-judicial detentions, and
extra-legal interrogation methods?
Joshua Dratel: I'm hoping we will have a revitalization of our
national priorities. The government has already retreated on its
original positions on torture. Whether it was merely for the benefit of the
Senate just before the Gonzales confirmaiton or for another reason, the
government has officially repudiated its earlier position on torture, or at least
retrenched from it. No one, of course, admits that we've tortured people, but we
can redefine it anyway...
In the interim, there is a danger of incursions into the ordinary
criminal justice process of these standards... exceptions tend to leach into the
system.
We hope, that with the habeas corpus cases and the Supreme Court cases
last year, these will put a brake on this sort of thing, but the overall
potential ramifications are quite serious...
If history is a guide, countries like Argentina and Chile that resorted
to torture ended up with seriously fractured socities, on a fundamental moral
level... these issues have been lasting sores in those countries. Wounds
that don't heal. We will have to deal with this for a long time to come.
Talking Dog: You've been ridiculously generous with your time, and this has been extremely interesting and enlightening,and I thank you, and wish you the best of luck in your representations. I'm sure I join all my readers
in offering you our thanks.
Your talking dog has been having some computer problems of late explaining the lighter than usual free ice cream. Brother Rabid Dog assures me that its most likely a hopeless hard-drive situation, so... we'll have to do something. We're pleased to borrow brother rab's set-up for this brief mention that nothing succeeds in British politics like success. Despite leading Labour to an unprecedented third straight term, many if not most British Labour MP's want to see Mr. Blair go sooner rather than later in favour of heir apparent Exchequer Chancellor Gordon Brown.
This seems consistent with some of my opinions: the UK public (1) is not pleased with Mr. Blair's entry into the Iraq war and embrace of the Bush government's policy there, (2) is not pleased with Mr. Blair's embrace of all things European, such as attempting to adopt the euro currency or further integration such as the EU constitution, (3) is still more worried about a Michael Howard led Tory government (or at least was) than with Mr. Blair.
So, basically, look for Labour to do to Blair what the Tories did to Thatcher (when John Major-- a most underrated PM, IMHO, btw)... he'll probably be dumped at a party conference one of these days. Well, predictions on another country's internal politics, just a few days after its national election. I mean, what do I know? Still and all... (mostly, I did this post for the post-title... an all too frequent occurrence!!!)
In this case, that would be our friend, West Virginia's own reservist and designated fall-gal Pfc. Lynndie England, who just caught possibly the break of her life, or at least the next eleven years of it, as Army Col. Pohl, the judge advocate in charge of the kangaroo court set up to bring scapegoats of our empire to some perverse notion of justice whereby those responsible escape punishment in favor of the peons they order around, Col. Pohl declared a mistrial and Pfc. England withdrew her guilty plea.
The reason was something I have been hinting at for quite a while: the orders Pfc. England had, to lead a detainee around on a leash and pose for pictures, were not on their face illegal (compare and contrast orders to shoot anything that moves on site, such as vehicles carrying left-wing independent Italian journalists and Italian intelligence agents, or more to the point, unarmed civilians in front of you). Pfc. England's immediate superior, ex-boyfriend and father of her infant child, ex-Sergeant Charles Graner, testified that Lynch did not know what she did was wrong.
Colonel Pohl may finally have done what I have been hoping would happen for some time: step in and stop this God damned whitewash where only powerless NCO's take the fall, and any officers (or, say, Secretaries of Defense) escape all responsibility for what is clearly their own actions. Maybe. At least in this one little case, the military decided to protect its own. Maybe.
We'll see how this transpires. Col. Pohl gave a tongue-lashing to defense counsel for participating in the charade of letting Lynndie face the next 11 years in jail when she seemed to have a damned good defense to the charges against her. We'll see. There may well be Americans who are war criminals associated with "Operation Iraqi Freedom". But I'll bet dollars to donuts that damned few of them are in uniform, and even fewer of those are NCO's and grunts.
That is all.
Henry Schuster gives us this CNN column entitled "Where's Osama?" The simple answer for OBL's reticence the last few months could have several explanations. One suggestion is that Al Qaeda hasn't had any thing it can point to as a 'success" in the last few months. Another is he simply has nothing to say. Schuster opines in general that the no news might be good news.
As this compendium from a case brought to trial in 2001 in new York entitled United States v. Osama bin Laden, nothing could be further from the truth. Al Qaeda is.. get this... patient. It takes years and years, works through multiple simultaneous plans, and moves its important people around on fake identity documents.
The schmucks who will sacrifice themselves for the cause-- they use their own names. Legitimate businesses intertwined with the terrorist organization, a loose configuration, and the best intelligence we had provided via the much maligned law enforcement mechanism.
In short: no one can ever be sure what OBL or the AQ bastards are up to at any given moment. The only thing we know for certain is how remarkably little we know... other than just how useful a bogeyman OBL is for the current American government (and, possibly, the UK government... though we'll see later this week...) to have out there. Comforting, no?
Our visit to the People's Daily commences with this blast from the past: a ceremony in Beijing to honor 3,000 or so "model workers" of the People's Republic. Among the "workers" is Yao Ming of the Houston Rockets, and 800 government functionaries, along with over 1,000 industrial workers and several hundred agricultural wrokers. Capitalism with Chinese characteristics indeed. Workers of the world, unite. You have nothing to lose but your chain store contracts.
And (I guess) in honor of May Day, we get a most unusual visit: the Taiwanese opposition party Kuo Min-Tang ("KMT") leader Lien Chan meets with CPC leader Hu Jin-tao. To be fair, that's kind of like Nancy Pelosi or Harry Reid visiting Fidel Castro, but as everybody seems to note, it's a start. The KMT, as you will recall, under the late Generalissimo Chiang Kai-Shek was driven from the Mainland to Taiwan in 1949, and ran Taiwan as a dictatorship until the last few years, when Taiwan emerged as a multi-party democracy. It should come as no surprise that theTaiwanese party with a history of autocracy is the one getting along with the CPC, but given other developments such as, for example, direct flights between Taiwan and the Mainland and ever increasing economic integration, there comes a point when China may ultimately have too much invested to even dream about military conquest of its "renegade province". We can hope.
Because elsewhere in the region, DPRK's wildman leader Kim Jong Il's government has announced that North Korea expects no resuolution of the nuclear issue there as long as George W. Bush is in power. Apparently, Kim seems to have taken offense at Bush's recent remarks at last week's televised political info-mercial/press soft-ball tournament, when the President referred to Kim as "a brutal dictator", mad-man and that sort of thing, reminiscent of where we were, oh, two or three years ago, when the subject was Axis of Evil TM charter member Saddam Hussein, or of course, from time to time, the ayatollahs of Iran. With this kind of name-calling, maybe we are best advised to show up at the schoolyard with our Big Brother (and Sugar Daddy) from Beijing...
Happy May Day, Comrades!
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