I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Friday, August 01, 2008

Interview with the ACLU's Ben Wizner

Salon Radio with Glenn Greenwald -- Interview with the ACLU's Ben Wizner

Glenn Greenwald: I'm speaking this morning with Ben Wizner, who's a lawyer with the ACLU and is calling from Guantanamo Bay, Cuba, where he is witnessing the first war crimes trial held by the United States since World War II, the military commission of Salim Hamdan, who among other things is accused of being Osama bin Laden's personal driver. Thanks so much for joining me this morning from Cuba.

Ben Wizner: It's great to be here. I'm calling actually in from a place called Camp Justice, which is a complex of a bunch of air-conditioned tents, where they put journalists and observers like me, perhaps in part to give us the idea that is actually a war court instead of an illusion, an exercise.

GG: Well, it's very inspiring, Camp Justice, I'm sure, when you arrive in the morning and you see that name there, you're as inspired as I am. What can, can you talk about just briefly how, the capacity that you're there, how you came to be there, who else is there and what you're allowed to see?

BW: Yeah. When the Pentagon decided to go ahead with military commissions several years ago, one of their mantras was that these trials would, full, fair and transparent. And so a number of human rights groups the ACLU, Human Rights Watch, Amnesty International, approached the Pentagon and said, look, if these are going to be transparent, you need to have trial observers from human rights organizations who can report to the world, especially since the government made the silly decision to conduct these trials here at Guantanamo. You know, this week, it's been more and more obvious that it would have made a lot more sense to bring one person from Guantanamo to the United States than dozens, and at some times hundreds of people from the United States to Guantanamo to watch one trial. But ever since these commissions have begun, the ACLU has been one of the organizations that has been here in an observing capacity.

GG: And you're able to be present for all parts of the proceeding?

BW: Well that was true until yesterday, actually. It's funny you ask. Yes, we've always been in the room for all parts of the proceedings. Today, yesterday for the first time, we were removed from the courtroom, everyone without a top-level security clearance was removed from the court room so that, two witnesses who I believe were affiliated with the Special Forces could testify about what they were doing in Afghanistan and so, it would be, just another embarrassment for the government this trial was determined on the basis of evidence that the press and the public didn't even get a chance to see.

GG: Was the defendant allowed to be present for that portion of the proceeding?

BW: The defendant was, but this is another one of those interesting government theories, right, that, you know, the, what they call the highest value detainees, Khalid Sheikh Mohammed and all of them, you know, we're not allowed to be in the room when those people testify, we have to be behind a glass barrier with a 20 second sound delay in case, God forbid, they reveal classified information.

Now, what is that classified information? It was disclosed to them during their interrogation - in fact it was their interrogation - because they were tortured, and because they know what techniques were used on them, they can't be allowed to speak to the public, and so the government doesn't mind revealing that kind of information to the detainees because it doesn't plan ever to release them. And that's another really amazing feature of the military commissions, which is that, Hamdan has been designated an enemy combatant, so the government's position is, whether he's acquitted or convicted, he remains an enemy combatant. He will be detained until the cessation of hostilities in the so-called war on terror, whatever that means. So they're not worried about every releasing him and letting him speak.

GG: Right. So, in other words, so, let's take a step back briefly for those who don't know, and tell the story of Hamdan's detention, when he was first detained, how long he's been detained, and what the allegations are against him.

BW: Well, Hamdan was picked up in November of 2001, I think November 24th was the date. He had just driven his wife and child to the Pakistani border and was returning to Khandahar. You know, this is a time when the Taliban and the Northern Alliance were engaged in a civil war. You know by this time the United States had strongly come in on the side of the Northern Alliance, and people were being arrested in droves, by Pakistani authorities, by tribal war lords, by the Northern Alliance. Hamdan was picked up by Northern Alliance fighters; he was lucky not to have been killed right then. He was turned over to US forces - large sums of money were being paid by US forces to get detainees who were from Arab countries. Hamdan is from Yemen. And so anyone who was from an Arab country, rather than from Afghanistan was presumed to be a terrorist and he was turned over to the US military, detained in Bagram and other facilities in Afghanistan and then transferred to Guantanamo in 2002.

Now, there's no real dispute that Hamdan was one of several drivers for Osama bin Laden. The bin Laden family originally comes from an Yemenese tribal region. He has long had a very close affinity with Yemenis, and many of his bodyguards and drivers like Hamdan were from Yemen. Hamdan contends that he was not an inner level, upper level member of al Qaeda, that he was basically a driver. This is an orphan with a fourth-grade education, who was paid cash directly from bin Laden to be his driver, was not part of the al Qaeda financing.

There's been no dispute at this trial also that Hamdan was never involved in the planning or execution of a terrorist attack; and we've had a parade of government criminal investigators come to the stand and say, no, no, no, this guy wasn't involved in any terrorist attack, not in the Cole bombing, not in the embassy bombings, certainly not in 9/11. He was a driver. And so what is the government's theory? The government's theory is that he is guilty of providing material support to a terrorist organization, and also that he was a member of a conspiracy to murder.

And, you know, Glenn, that material support is pretty elastic concept. It was used to finally convict Jose Padilla after holding him in criminal isolation for several years. The government effectively was to able to send him away for 17 years for filling out an application al Qaeda summer camp. It's not hard to get a conviction for material support.

GG: And is the allegation of material support here that the fact that he, the material support was the driving services that he gave to Osama bin Laden?

BW: Well, sure, the driving services. The government says also security, that he drove weapons around. You know, the government alleges that at the time of Hamdan's capture there was a missile in the trunk of his car, that was being ferried to a battlefield. You know, again the defense theory is that was a civil war going on. Civil war is not terrorism. If he was bringing a missile to Taliban forces, that doesn't make him a terrorist, that doesn't make him a criminal and it certainly doesn't make him a war criminal.

And actually that's an important distinction because for the government to conduct this as a military tribunal - now, they could have and still could at any time bring Hamdan to the United States, indict him in Miami like they did Jose Padilla, and prosecute him for material support, which is a domestic crime in the United States and Hamdan could be prosecuted for it. The truth is he could probably be convicted for it. But the government is making a different argument: they are saying that Hamdan is a war criminal.

GG: Right.

BW: To do that, they have to say that the United States was in a state of armed conflict with al Qaeda for the period in which Hamdan's alleged act took place. I think the United States' theory is that, the United States and al Qaeda have been at war since the early 1990's, which is a pretty remarkable statement because, most Americans had never heard of al Qaeda until 2000. But their theory is that because al Qaeda in its speeches and its web-sites and its fatwas, said that they were at war with us, that that is sufficient under the laws of war. But that's a pretty preposterous theory, that any group of people, just by saying they're at war, can themselves generate a state of armed conflict.

GG: Well let me interrupt you here for a minute and ask you about this important distinction that you're drawing. I mean, of course the distinction between, that is, trying someone as a war criminal for war crimes, which is what these military commissions are intended to do, and charging somebody as a common criminal in a federal court as Jose Padilla and even others who were originally alleged to be involved in the 9/11 attacks were tried as, and prior terrorist attacks as well. From Hamdan's perspective, since as you say, he's been declared an enemy combatant, and according to the Bush Administration, he need not be convicted of anything in order to be held as enemy combatant, in fact he could be acquitted as part of this military commission and still be held as an enemy combatant. What really is the distinction between, as a practical matter, between trying someone as a war criminal, and trying them as common defendant, and what if anything is really at stake for Hamdan in this commission?

BW: Well, that's the sort of been the triumph and the tragedy in the Hamdan case all along. What we haven't mentioned yet is that it was Hamdan, with his Navy lawyer Charlie Swift and with Georgetown law professor Neal Katyal, who challenged the first iteration of the government's military commissions, took the case all the way to the United States Supreme Court. Got a ruling that really was a historic ruling on the separation of powers, maybe the most important ruling ever on executive power, and Hamdan's reward for having been named now in our law books for generations to come, is that the government...

GG: And we should mention I mean that that ruling was one where Hamdan prevailed, and the Supreme Court said that the President lacks the authority to constitute these military commissions, that Hamdan is entitled to, like all detainees including al Qaeda detainees, are entitled to Geneva protections, the protections of the Geneva Conventions, and yet here we are, you know, two years later, and he's a part of this sham trial, so what is, what can he even hope to gain?

BW: That's exactly right Glenn. because, as so many other time you've been cataloguing over recent years, defeat snatched from the jaws of victory, right? What was the result? Hamdan was overruled by the United States Congress and in the final days of the, 2006, the Republican Congress, the Military Commissions Act was passed. It reconstituted the military commissions, with virtually the same rules as before.

I was down here a couple of months ago, for a pre-trial hearing, in the Hamdan case, and Hamdan was explaining to the judge that he was considering boycotting this proceeding, that there was nothing in it for him, and the judge said, but Mr. Hamdan, you took on the President of the United States, and you won, and Hamdan said very pointedly, and what did it get me? You know, I've been with Mr. Swift for four years, I know the law better than he does now I think, you know, surely I won in the Supreme Court, that I'm in a solitary confinement cell and they're prosecuting me under a system that doesn't seem like a legal one. Did Congress make this new law just for me? Yes, that reflects his understanding.

And so, this is for all of the pomp and all of we how say this is historic moments for the United States, this is a Potemkin legal proceeding, basically put together to project an illusion of justice. The outcome doesn't make any difference. You would think, though, that if the government were going to through all the trouble of conducting such a sham trial, they would not chain themselves by starting with Osama bin Laden's driver. And what again we've heard from government witness after government witness, is not only that Hamdan was a marginal figure, but that he was actually a cooperating witness, that through dozens of interviews with at least 40 criminal investigators, he repeatedly provided information that was useful to the government. He identified al Qaeda figures from photo arrays. He said that he would even be willing to testify against others, you know, this is the kind of guy if he had a lawyer, and if he were in a real court system, would be a witness and not a defendant. It would be as if the Nuremberg Trials opened with the prosecution of Hitler's driver, someone who by the way was never charged, and who died of old age in his own bed.

GG: Right. Now, it's incredible for the mockery it makes of justice and it's equally incredible if not more so for the sheer ineptitude of the whole strategy. Let me ask you a lot of the commissions have focused on, not the question of what Hamdan did, rather on the question of what the United States government did and specifically the interrogators of Hamdan did, in terms of the treatment that the subjected him and there was a ruling early on, that certain evidence would be excluded because it was obtained in a coercive environment. Talk about what those issues have been, and I guess there was some pretty extraordinary events on Wednesday regarding the US government's sort of indifference to whether or not its best evidence would even be useable in this commission because it seems so inconsequential. So can you talk about some of those issues his treatment and the interrogation techniques that have been used on him?

BW: Well, what's interesting is that, there really are two Guantanamo's. There is the Guantanamo that's been presented by the government in this trial, and that's the Guantanamo where professional FBI interrogators, some of them who are fluent in Arabic like the famous Ali_Kisan bring fig newtons to the detainees, sit knee to knee on the floor, sometimes even lie elbow to elbow, talk about the family, arrange for phone calls home. have non-coercive professional polite interrogations that are amiable. Those are the people who of course are called in to testify against Hamdan at trial.

But there is another Guantanamo that we all know about, and that's the Guantanamo of Rumsfeld's memos, of November and December of 2002 and March 2003. A Guantanamo of stress positions, of extreme temperatures, a Guantanamo where someone like Hamed_Katani could be lead around on a dog lease and forced to defecate on himself. This was a laboratory for very brutal interrogation techniques that then migrated to other places. Really awful things were going on here.

But you would not know that in this trial. Because of what must be a remarkable broad protective order, this entire trial has been conducted as if the CIA doesn't exist. The name CIA may not be uttered in the courtroom. The closest we get is hearing that there might be other government agencies around, and there was an incredible moment in the court yesterday, where one of Hamdan's lawyers wanted to ask a question of an FBI witness that must have been about the CIA. The government objected on classification grounds. The defense lawyer held up the 9/11 Commission Report and said all I want to do is read one sentence from the 9/11 Commission Report. He was not permitted to read a sentence from the 9/11 Commission Report because in this trial that's considered classified even though it was on the New York Times best-seller list.

GG: Right. It was part of the public parts of the 9/11 Commission Report was public, he wanted to read into the record a public statement.

BW: He wanted...

GG: That was barred on...

BW: ...a public statement from the 9/11 Report and had a witness respond to what the 9/11 Report said. He was not permitted to do that. And so, there's this strange sense in that I am here, and I am sitting in the courtroom, you know - I'm in the one place where issues that the entire world has been discussing for four or five or six or seven years cannot be discussed. They can be discussed everywhere else, but not here, because of purported harm to national security, and look we've seen a lot of that, I mean, I have represented lots of people whose cases have been thrown out on state secrecy grounds for exactly the same reason, that it was determined that you could not litigate in court what could be written on the front pages of newspapers.

In this case, the government not only wants to ignore the existence of these interrogations, but waited until the eve of trial, and actually into the trial itself, to turn over some records that have confirmed what Hamdan has been alleging all along, which is that he was repeatedly woken in the dead of night, that one time he was sexually humiliated by a female interrogator. These allegations were ridiculed by the government's entire proceedings, documents that they disclosed to the defense during the trial confirmed that Hamdan was right. I wish I could tell you what those documents say, I can't, I can't see them, they're classified, they get handed solemnly around the court room and red folders marked 'top secret'. The defense can only very obliquely ask questions about them and we actually learn more about this in the post trial press conferences than we do in the courtroom itself.

Now the judge, Keith Allred, who's a Navy captain, is, seems to be a bright guy, actually is probably the best judge down here in terms of fairness to detainees. But, as an observer, you always feel like Charlie Brown who's tried to kick the football again. We always think that Allred's going to do the right thing and at the last moment he doesn't. Allred wanted to sanction....

GG: So in other words, he makes observations about government misconduct or about unfair aspects of the trial, he's seems concerned, even angry about what the prosecutors are doing, but at the last minute he always rules in such a way that ensure that the government essentially gets what they want, and the detainee doesn't?

BW: And yet for some reason we continue to think that the next time he's going to rule with the detainees, and that's why I described, I compared it to Charlie Brown and the football.

But in this case, Allred was genuinely angry that the government had waited until into the trial. Now remember, Hamdan has been government custody since 2001. The idea that these materials couldn't have been collected earlier and turned over to the defense just silly, but it reflects the deliberate compartmentalized system where the people who were going to prosecute the cases were in this bubble that would allow prosecution of the alleged crimes committed by the detainees without any discussion of the crimes committed against them by other government agents.

Allred said, look, I have to sanction you for your misconduct in turning over this material this late, and I'm going to say that with respect to one critical interrogation, that you want to introduce, that there's a presumption that it's coercive. I'm going to not allow it unless you can prove, by clear and convincing evidence, that it was not coercive, and so that was what happened the other day. The government brought forward absolutely no evidence that it was not coercive, they didn't put a single witness on the stand who knew anything about the circumstances that Hamdan, night time interrogations. But at the end of the day, Allred allowed the interrogations to be admitted, released what I can only describe as a hilarious ruling because it's five pages long, and I think one paragraph of it is not blacked out. I said to a reporter yesterday, this is Guantanamo in black and white, mostly black.

GG: Right. So in other words, so, the judge presiding over the trial told the government that unless you convince me with convincing evidence that these interrogations were non-coercive, which was the penalty for failing to produce these documents about his interrogations, I'm going to bar any evidence of what you said as part of these interrogations. The government ignored that, didn't present any evidence to try and even prove that it was non-coercive and he eventually allowed it anyway, the evidence from that interrogation. And then released a blacked-out order as to why that ruling was his ruling?

BW: That is exactly what happened here. And again, nothing really should surprise, and, but I really do think that there was a collective gasp among observers, and you saw that this particular witness was going to be allowed to testify with no penalty against the government. You know, there's another issue that is hanging over Hamdan's interrogation that is not about physical coercion. Now, Hamdan, you know, certainly has had a rough time being in US custody for all these years, but he's not someone who, like other detainees, was brought to black sites and exposed to them, to the worst enhanced interrogation techniques. He's not someone who was water-boarded, he's not somebody who was maintained in the worst stress positions.

But, you know, what's remarkable about this, is that, you know, the government has long made the claim, that we need these new rules, we need a military commission, because how can we expect our soldiers and our agents on the ground, in the battlefield, in caves, to be administering Miranda warnings? That may not be an unreasonable argument, to say that soldier who's on a battlefield doesn't have to give a Miranda warning, and in fact the law has never required that. But let's be clear about what's going on here. Hamdan was not interrogated on a battlefield. He was interrogated dozens of times in an air-conditioned trailer, thousands of miles away from, many, many months and even years removed from any battlefield, and so the rationale that the government has given for not providing warnings is utterly, utterly absent here. And so each government witness that has taken the stand has said that the reason why he didn't give Miranda warnings, is that it was government policy, and that the purpose of the interrogation was intelligence, not criminal justice.

Well, every single one of those interviews is now used, literally, to convict Hamdan with his own words, and Hamdan, by cooperating, sewed his own newt[sic]. Other detainees who refused to speak, are now in their home countries, because they didn't give the government any evidence for putting on a show trial. Hamdan, by sitting down and naively providing all of this information that he thought would be very helpful to the government and if fact was helpful to the government, was in fact writing the prosecution's case against him. And I think that's important because, you know, issues like Miranda and self-incrimination may seem marginal, but they really do go to the heart of what a fair trial system is. Someone has the right to know he is a criminal suspect when agents now, we heard testimony yesterday that the, one of the more experienced government agents who had not interrogated Hamdan, a year after all the other interrogations were over, flew down to Guantanamo with a military commissions prosecutor, to clean up Hamdan's interrogations for presentation at trial. At trial - this was not about getting additional intelligence, this was about, this very experienced witness described himself as an excellent trial witness, working with a prosecutor, in a setting with no warning to Hamdan, and no counsel to Hamdan, to go over all of the previous interrogations and plug any gaps so that the case against Hamdan would be airtight. And that witness took the stand yesterday and gave damaging testimony against Hamdan.

GG: Right, it's amazing that, you know, the idea, the rationale of terrorism is to bring publicity to a cause, in this the cause being that the United States is some sort of corrupt and rotten system that ought to be brought down, and yet, you know, the actions that have been taken that have advanced that cause far more than the others is the actions of our own government, in putting on sham trials like the one that we have. You know, it literally couldn't matter less what the outcome is to the detainee. Let me ask you this last question, what is likely to happen from here, how many more days are there to go, and has the defense began to present its case yet, and what is that case likely to entail?

BW: Well, I think some of the more grotesque indignities may still be to come. The defense just began its case yesterday, and I think that their case can be summed up as follows: there was no war between this rag-tag group called al Qaeda, and the United States of American, at least until September 11th 2001, until the authorization for use of military force. And so that anything that Hamdan may have done before that time, perhaps could prosecuted criminally in a domestic court, but certainly is not within the jurisdiction of a war court. And moreover, that Hamdan was never involved in the planning or execution of any terrorist attack, did not conspire, there was no meeting of the mind between him and some other member of the conspiracy to carry out these attacks, and so therefore he isn't guilty.

Hamdan will be convicted. These military officers who were brought down here were not brought down here to acquit him, they were brought down here to convict him. In the penalty phase of this trial, the government is planning to bring in 9/11 family members to give inflammatory victim impact statements. Now, that would be one thing if was the trial of Khalid Sheik Mohammed...

GG: Right.

BW: But this is the trial of bin Laden's...

GG: A low-level driver that nobody claims had any role whatsoever in the 9/11 attacks.

BW: That's exactly right, and the jury has already seen footage of the planes slamming into buildings, people shrieking, of charred bodies, of weird Arabs firing guns, and the idea that this trial, as with many measures is to take these low level actors, and put bin Laden's image and name into the trial as much as possible. So we'll see that next week.

It's hard to predict anything, Glenn. I would not be surprised if the witness portion of the case includes today, on Friday, but of course, there will be closing argument, there will be deliberations, and then there will be a penalty phase of the trial, so I may be in the Camp Justice for one more week.

GG: Right, well, at least you're at Camp Justice, the Camp Justice part of that, and just so listeners know, you are periodically writing about what you're observing at the ACLU Blog of Rights, which is at

BW: That's right, and it's cross-listed at the ACLU Diary on DailyKos, which is

GG: Excellent. And I'll definitely keep following that, and we'd love to have you back on to talk about next week's outrages as this sham trial proceeds. I really appreciate your taking the time this morning to talk to me.

BW: Thanks for having me Glenn, I really enjoyed it. Take care.

[Transcript courtesy of Peter Grey.]