For Antiwar.com, I'm Scott Horton.
This is Antiwar Radio.
It's H. Candace Gorman.
She is a lawyer from Chicago, and for free, she represents two Guantanamo detainees.
Welcome back to the show, Candace.
How are you?
I'm fine, Scott.
Thanks for having me on again.
Well, I really appreciate you joining us today.
And, you know, we were just talking with Glenn Greenwald about the just complete insane attack on the even theory of constitutional law governing how our government treats prisoners in this society and how it continues under the Barack Obama administration and some of the ways that it doesn't.
But I was hoping that we could talk specifically about your clients at Guantanamo.
And to tell you the truth, I don't even remember what the status of either of them are anymore, except that one of them is sick, is all I remember from last time.
Candace, so can you fill us in?
Well, my one client is still sick.
That's Mr. Al-Jazawi, my Libyan client, who has hepatitis B and tuberculosis.
And my other client is healthy.
They're both still at Guantanamo.
I have no idea what's going to happen with either of them, because our government of transparency refuses to let us know what they have planned for our clients.
Well, now, Glenn Greenwald, as I said, was just on the show, and he said that so far the federal courts have in the habeas corpus hearings the lowest threshold of evidence imaginable, about the same threshold as arrest or something.
Thirty-three times the courts have said, let these people go.
Well, so what about your clients?
Have they not gotten a habeas corpus hearing?
Nope.
Neither of my clients have gotten a hearing as of yet.
One of my clients, the judge, has stayed his case, waiting to see what, if anything, will happen with the Obama review team.
And my other client, Mr. Razak Ali, we're forging ahead, but the judge has not had a date yet for a hearing.
It's very frustrating.
And now, well, let's focus on the health care issue here.
Tell us the specifics.
I guess anybody who has hepatitis and tuberculosis is not very healthy, and don't they have top-notch medical staff, like Michael Moore says, down there at Guantanamo Bay?
No, they don't have top-notch medical staff.
As a matter of fact, even the military people down at the base will go home on leave to get medical care instead of going to the facility there at Guantanamo.
My client has had such a horrible time there, his eight years there, for years and years they refused to treat him.
Then they told him he had AIDS.
Then they retracted that and said they didn't.
And at this point, he just wants to get out of there.
They have offered to give him some hepatitis medicine just in the last couple of months.
It's a medicine that countries in the third world might be giving people now.
It's not state-of-the-art.
And if you miss one day of the medicine, you have to start all over again.
So he's just refused.
He says he'll just wait until he gets out of there, and he'll seek real medical attention.
Now, what's all this about years and years they refused him treatment?
How many years?
How is that possible?
He's been there since 2002, and he has hepatitis as well as tuberculosis.
Tuberculosis he acquired while he was at Guantanamo, and they told him he didn't need any treatment for that.
For the first two years, he had no symptoms of hepatitis.
When he started getting the symptoms, they said, oh, you came here with hepatitis.
He didn't know he had hepatitis when he came here, and they said they would watch it.
Well, as they watched it, he got sicker and sicker, and he asked for treatment.
And they kept monitoring him and never provided any treatment.
When I came in in 2005 as his attorney, I asked the court to first provide me with the medical records so I could have someone knowledgeable look at what was going on and what his condition was.
The judge refused that request of mine, and I asked the judge to require that the military provide him medical care, and the judge refused that request as well.
I guess it's surprising to me that among the kind of alternative media and the people who dare pay attention to stories like this, it seems like this would be a pretty important one, the medical care aspect.
I mean, we know, of course, that all the doctors, well, many at least of the doctors down there have participated in torture, and, in fact, given their medical care in a, you know, oops, my finger slipped, you know, kind of way, where, you know, shoving tubes up people's noses, ripping them out and then shoving them up the nose of the next guy, and whatever, where this is supposedly caring for their patients, but really it's a form of torture itself.
But, you know, denying a guy care for hepatitis and tuberculosis, that seems like it would be the headline somewhere, if not the Washington Post.
Well, hopefully it will be the headlines on your show today.
You know, to me it's not surprising, having watched this play out for the last four years, four and a half years, but I'll tell you, in my view, they use his medical condition to torture him.
I mean, when they told him he had AIDS, he, of course, wrote me a letter, very freaked out, because they told him he had AIDS, and I asked the attorney from the Department of Justice if he would confirm for me whether or not he had AIDS, and, you know, the attorney refused to confirm or deny.
I had to actually file court papers telling the judge what happened before the military and the Department of Justice would even tell me, oh, that was a mistake.
Well, obviously they're causing him great consternation, and they know he's very concerned about his health.
So when they say these kind of flippant things about, oh, you have this or you have that, eventually we don't know what to believe, and we don't have any records from the medical staff there to even know for sure what his condition is.
We just know he's sick.
Well, you know, I guess on the – does that not have any effect on the process of trying to get him before a federal civilian court here for the habeas thing that has nothing to do with anything, right?
Totally separate standing kind of legal issue or what?
It's separate in a way, but, you know, if my client's going to fully help me and participate in this habeas hearing, he really needs to be in as good a shape as possible.
He doesn't need to be worried about whether he's going to keel over or whether or not he can continue talking or he's too tired because of his medical condition.
So it really is important for his process for the habeas hearing to also have the best health care available so that he can participate fully and help prosecute his own case.
Well, now the habeas hearing, again, as Greenwald was just explaining, and perhaps you can maybe even go into a little bit better detail.
I didn't ask him, but I'm interested actually in all the technical because, you know, when it comes to technicality, these aren't numbers in mathematics we're dealing with.
It always comes down to the opinion of, you know, a kind of qualitative opinion of a judge somewhere, whether something amounts to beyond a reasonable doubt or a preponderance of the evidence or a reasonable objective belief on the part of the officer or, you know, good grace of the, you know, president.
You know, there's all these kind of legal definitions that, in fact, are very vague English terms.
But when it comes to a habeas corpus hearing, you know, we're talking about lower even than probable cause or an objective reasonable belief, right?
Correct.
Do they have a name for it?
What is the standard?
The judge kind of feels like it?
Sometimes it seems that way.
Is there a name for it?
Well, actually, the question is whether or not they're detainable under the government's definition of what's detainable.
Actually, the government proposed a definition and the judges didn't accept it carte blanche.
They kind of twisted it, you know, refined it a little bit.
But, you know, it's still at the very low standard.
The government basically just has to show that they were, at some point around the time they were picked up, a possible threat.
And that's, you know, as you said, that's very vague.
And even with that very vague definition, 80% of the cases that have been heard so far, there have been 42 cases heard, 80% of them have been won by the detainee.
And you have to understand, some of these judges are very conservative judges.
They would like nothing more than to keep these men at Guantanamo or somewhere.
But there is absolutely no evidence that even these judges that are very conservative can find to confirm that these men should be held.
So, you know, it's really a remarkable number.
And looking at the decisions where the detainee lost, you have to wonder what it is that our court system has come to.
One was a cook, a cook for the Taliban.
I mean, what kind of threat is that?
Well, you know, Greenwald also brought up in his interview the Hamdi case, where this is a guy who was born in Louisiana, right?
And then he was arrested in Afghanistan.
He was held at Charleston, South Carolina, near Padilla somewhere, rather than at Guantanamo.
Am I on the story correct so far?
Yeah, although I have to tell you I'm not as familiar with the Hamdi case as I am with some of the other cases.
Well, anyway, the bottom line, it's, you know, I only need to be close enough to write about this.
I think this part is correct.
And what Glenn was saying was that they ducked this case, the Supreme Court ducked this case.
It would have been one where they would have actually had to really address the nature of all the powers here.
So far with the three major cases of Hamdan, Rasool, and Boumediene, they've addressed certain issues, but they haven't really addressed the entirety of the thing.
And with Hamdi, by letting him go, they ducked that case and having to really answer whether the executive branch and the Congress can get together and do these things the way they're doing it.
Is that basically your understanding of the deal?
Yeah, I would just say that it's probably not the Supreme Court that's ducking the case.
It's really the Department of Justice.
I mean, when they know they have a loser case and the Supreme Court is taking a serious look at it, they'll do anything they can to make sure that the Supreme Court doesn't rule on that case, including releasing the people or changing the venue like what they did with Padilla from federal court to state court, anything to keep the Supreme Court from restricting them.
Wow.
Wait a minute.
In the Padilla case, they didn't even try him in federal court?
That was not the federal district court down there in Florida?
It was the state of Florida prosecuting him?
Boy, I think it is, and I might be wrong, but I know that they switched venues.
Well, I know the indictment.
I didn't read the whole trial transcripts or anything, but the indictment was laughable.
It certainly had nothing to do with what they accused him of.
It's interesting that Padilla got a trial, and he's now doing life in prison.
John Walker Lynn got a trial he's doing 20 years.
Hamdi got to go free because they didn't use the law against him at all.
They just abandoned it and moved on.
Yeah, that's a kind of bitter irony.
It's not like there's anything less than a high 90 percentile conviction rate in federal criminal court anyway, right?
Right.
For anything.
One of the other things I'll point out, even though I think these military commissions are just—they shouldn't be allowed.
They're just so unconstitutional.
But even the people who went before the military commissions, the old ones, where hearsay was allowed, torture evidence was allowed, everything was allowed, and still those guys, for the most part, got lesser sentences and got out of there quicker than people who are sitting around waiting for a habeas hearing.
So there's something wrong with this whole system, and it really stinks to high heaven that we can't get habeas hearings quickly like we're supposed to get, and that people who go through these awful military commissions, except for the one guy who laid down without an attorney and refused to defend himself, he got found guilty.
But everybody else that moved forward in the commissions has actually gotten out of there pretty quick.
But you still want all things being equal.
You're trying to get your Bill of Rights here for your clients, and you're trying to get them on the list or what have you to get a habeas corpus hearing, right, and maybe have them released by a civilian judge?
That's correct.
And there's two really important reasons.
One, to get the hell out of that place.
But the second is so that when they get out of there, they can stand up and find a job, and they can say, look it, I was wrongly held.
A judge in the federal courts of the United States found me innocent.
That's a lot better than just walking free because the government doesn't want you here anymore and having to explain the rest of your life, no, I really was innocent.
Well, would you prefer that, well, say, for example, the judge decides that they don't want Obama to look bad or something, they go ahead and say in the habeas hearing that, yeah, it's perfectly fine for the military to continue to hold him, at that point would you prefer that they go ahead and put him on trial like they're preparing to do with Ramzi bin al-Sheib and Khalid Sheikh Mohammed and give him a civilian trial?
Or at that point maybe he'd be better off with a military commission, as you're saying.
Well, you know, I don't want a military commission because they're illegal, they're unconstitutional, and we shouldn't be setting up a new system of justice for the men of Guantanamo.
If my clients were ever found guilty first, or if they weren't granted their habeas petition, first I'd be appealing that because there's absolutely no evidence against either of my clients for holding them.
But certainly if there was going to be a criminal charge against them, I would want them in federal court.
I would rather have a real law system, the one that's worked for us for over 200 years, be the one in charge, not some military commission that has just been put together yet again.
This is like the third triad trying to do military commissions.
If they want to do court-martials, you know, the old military law, the one that the military has had for decades and decades, fine.
But don't set up a new system of law just for the men of Guantanamo.
So you would settle, though, for a court-martial?
I would, because there's nothing my guys could be found guilty of anyway.
You expected that.
Well, I don't know.
So why not just go for the military tribunal as it is, if you really think you can walk right out of there, because there's nothing.
As you said, a lot of people have gotten an easier break from the military commissions than from the federal courts.
I mean, I understand the principle thing.
Believe me, I've read the Constitution.
This ain't got nothing to do with that.
And it also doesn't have anything to do with how the law should be dealt with.
And we don't want them bringing in hearsay.
We don't want them bringing in people who were tortured to make up something against my client and not to be able to cross-examine them to show their bias.
I mean, there's a lot of reasons why a military commission is not the way to go.
It's not just about principle, but it's about fairness and justice and due process.
So really, even though on average maybe anecdotally there have been people who got off easier from the military commission, it's such a kangaroo system that you wouldn't want to take a chance on that, even if somehow it was legal.
Right, and especially since they're still changing the rules.
They've changed the rules three times already.
Are they going to change them again the day before I walk into the courtroom?
No.
I want the federal rules.
I know those.
They've been tried and practiced and found to work.
Who's Matthew Waxman?
Matthew Waxman is my client's personal war criminal.
Oh, really?
That's a pretty nice title to carry around, huh?
Like a guardian angel, only the opposite, huh?
The opposite, yes.
All right, so how exactly does that work, that he's your client's personal war criminal?
Mr. Waxman, I forgot his official title.
He was in the Pentagon in the area of detainee affairs back in 2004.
Back in 2004, the Supreme Court said that all the men at Guantanamo have to have a hearing, some kind of hearing to determine whether or not they're properly detained as an enemy combatant.
And Mr. Al-Jazawi had his little hearing.
He was not there.
They told him he didn't have to be there.
They didn't really tell him very much about it.
It all happened so quickly.
But the three military people that sat at Mr. Al-Jazawi's tribunal to determine if he was an enemy looked at the evidence and said, uh-uh, he's not an enemy combatant.
He should be set free.
He was found not to be an enemy in 2004.
Well, that worked its way up to Matthew Waxman.
And it wasn't just Al-Jazawi.
There were approximately 39 men, I believe, who were found not to be enemies, including those Uyghurs, the men from the area of China that were found not to be enemies as well.
There were 13 or 14 of them.
And it got to Waxman, and he said, oh, this doesn't look very good to have all these, you know, almost 40 guys found not to be enemies.
And then we would have to explain why we've been holding them, you know, since 2002, the end of 2001.
So he came up with this redo.
We'll do this hearing again, and we'll pick new panels.
And they picked new panels for all of these men, and all of them were found to be enemy combatants the second time around, except two who they had to do them a third time around.
And Mr. Waxman left a little paper trail that we got a hold of, and basically he said in this email, we should just go and look and see if we can find anything else that might justify keeping them.
And this will mean that when we finally let them go, it'll be a controlled transfer instead of them walking free.
So all of these men have been there for years now, including my client Al-Jazawi, because Mr. Waxman did not think it looked good to have these guys walking out free after being held for two-plus years.
Hmm.
Well, you know, I wonder, one of the things when the Supreme Court so-called incorporated the Bill of Rights against the states and all that kind of thing and sort of turned the Bill of Rights into a mandate to the Justice Department, don't they have, isn't there a specific federal law that they enforce where a prosecutor can prosecute a cop, even at the federal level, but especially state and local cops is where you see this practiced, even if rarely, where the crime is violating somebody's rights under the color of law, using your costume jewelry and pretended authority as an agent of the state to violate someone's rights rather than protect them.
That's a crime, right?
Can't you like file charges against people for doing that?
You can file charges against people for doing that if you're anywhere else in the United States but Guantanamo.
But unless, you know, that's one of the, probably the only good reason about maybe bringing these guys to the United States is that they'll start having more of the laws of the United States applied to them.
Right now they don't and so they can't use all these other laws.
Just like they can't get reparations for all their time being tortured and held illegally because Congress passed a law back in 2006 taking away their right to have any law including habeas corpus at their disposal.
Supreme Court said in Boumediene, no, you can't do that with habeas corpus, but they haven't addressed all the other laws.
Wow, this is amazing.
So tell me about Ali Razak.
That's the name of the second guy.
I'm sure I said it wrong.
Razak Ali.
Razak Ali.
Oh, pardon me.
That's right.
Razak Ali is Algerian.
He's been held there since 2002.
This is your other client?
This is my other client.
He's been held because he was in a guest house in Pakistan where Abu Zubaydah, another person that the military thought was, you know, high-ranking al-Qaeda member, now they realize that he wasn't, but they waterboarded him 192 times.
He stayed at the same guest house as Abu Zubaydah for one night and based on that, and he didn't know this guy, Abu Zubaydah, even though he's waterboarded all those times, doesn't know who my client is and has never pointed the finger at him.
But since he was in that guest house that one night, he's been held for eight years.
That's the only thing they have to say about him, that he was in that house.
And in terms of process, he's in the same place as Ghazawi, that no habeas, no nothing so far?
No habeas, no nothing so far.
We're waiting.
In his case, the judge hasn't stayed his case.
The judge is just moving slow.
I can't blame the judge on this because we've been moved around to a couple different judges because some of the judges had too many cases and they couldn't get to them, so they kind of distributed the weight a little more evenly amongst the judges.
So I finally got this judge in the spring, so he's trying to get up to speed, but it's just taking a little time.
I think early in 2010, we should be getting a hearing date.
Well, that's good.
So I guess, is there any difference between who's going to be moved to Illinois and is there anybody going to be left at Guantanamo now, or it's just some are going to New York for trial and everybody else is going to Illinois for permanent dungeon?
This is all in the rumor mill so far because all these decisions are just being made, but what we've heard so far is that Illinois is going to be used actually by the Department of Defense as a military prison to have the military commissions so that the people that will be moved to Illinois will be the ones that are going to have commissions, the ones that are waiting to go home because the review team has looked at a number of the files and I think they announced something like 120 of the men are going to go home if they can find homes for them if they can't go back to their own home.
So it's really 100 men that we're talking about.
Some of those men will have military commissions.
They'll be moved to Illinois.
Some will go to federal court.
We don't know how many.
And then there's that other category, the ones we don't know what to do with them, but we don't want to let them free, and we don't know where they're going and what they're going to do with them.
Well, we'll just blast them off into space.
You know what?
Whatever we're going to do with them, you know it's going to be unconstitutional because you can't just hold people without charges because you think they might not be the safest people around.
You know what I didn't know?
You sued the National Security Agency for tapping your phone, huh?
I did.
Well, now, is there anything in the law that says anything about lawyers can go about their day without the executive branch listening to their phone calls, or are you just as Fourth Amendment-less as the rest of us?
I'm just as Fourth Amendment-less as the rest of you, maybe even more so, because the Bush administration, I believe it's under the Patriot Act, says that they can tap people that they believe have ties to terrorism.
And since they've said that my two clients at Guantanamo are terrorists, then they think they can tap my phone because I have a relationship with someone they're claiming is a terrorist.
All right.
Well, so if we start playing separations of Kevin Bacon and so forth, then that means that anybody that's in my cell phone is tied to terrorists too because I know you?
Yep, that's it.
Sorry.
What about all the people listening to my show?
I don't know.
We'll have to test that one out.
Well, I'll tell you what, the Chaos Radio webpage knows the URL of everybody who's streaming.
All right, I'm not surprised.
So I guess as long as you're just tuning in on the FM, nobody knows what you're tuning in.
Unless it's tied to your OnStar system.
We're getting there, Candace, we're getting there.
And when you see in the news, as we saw last week, that the phone companies are cooperating with the Justice Department, turning over our GPS points, where we're located, 8 million times since, what, 2006?
Just one phone company turned over that data to the government?
Right, 8 million.
That was a sprint.
In fact, in the article it says that they just made a new webpage where I guess you're a cop and you get the master gate code.
You just log in and you can look up, you can just follow people around all damn day if you feel like it.
I think there's a fee for it, though, and I think it's a pretty hefty fee.
That's where our tax money's going.
Oh, yeah, well, it's not like it costs the cops anything to do it.
They just put it on the taxpayer's card.
Right.
We can afford it.
Yeah, we can.
We're so rich.
Wow.
Well, you know, when I was a little kid, it occurred to me, well, I guess I wasn't that little, but, you know, I don't know, 13 or 14 or something.
And it occurred to me that, wow, so if the people who are out there who sue the government all day for doing bad things don't do that, if the people who represent the innocent who are being persecuted don't show up to do so, it just doesn't get done.
The reason it gets done is because people do it, and that means you.
And you're one of those who make sure that, you know what, as long as the government's going to be persecuting innocent people, it's your job to do your part to help to defend them.
So thanks for being that person.
You know, the rest of our liberty really depends on it.
I know you know that, and I know that's why you do it.
And so thanks.
And I just wish we could get a few more people out there doing it, too.
Yeah, well, you know, I think everybody's kind of lost.
They don't know which way to go.
But I'll tell them, I'll suggest a couple of directions.
They can go to gtmoblog.blogspot.com for Candace Gorman, and you can also find her at Huffington Post and at In These Times.
Thanks very much for your time on the show today, Candace.
Thanks for having me on again, Scott.
It's nice talking to you.
