Interview with Clive Stafford Smith

Clive Stafford Smith is a human rights lawyer who has lived the past 20 years in the USA fighting the death penalty. Two and a half years ago, he took up the cause of the Guantanamo Bay detainees by representing two of the British detainees, Shafiq Rasul and Asif Iqbal. Since the Supreme Court ruling of June 28th, which maintained that Guantanamo detainees have the right to contest their detention in civilian court, Stafford Smith's human rights group Justice in Exile has taken up the cases of around 80 detainees. Cageprisoners.com caught up with him on his return to England.

CAGEPRISONERS.COM: What led you to your recent decision to leave the US after 20 years fighting the death penalty, to return to the UK to focus on Guantanamo cases?

CLIVE STAFFORD SMITH: In terms of leaving the US, it is primarily because both my parents and my wife’s are getting a bit older, and we wanted to spend some time with them. But also I have spent 26 years in the US - even in the Deep South they normally parole you on a life sentence after that much time. It’s enough. Quite frankly, while it has been a tremendous privilege to work for people on death row there, I was looking forward to coming home.

CP: What inspired you to take up the cases of the Guantanamo detainees?

CSS: I spent 20 years doing death penalty work for one reason only: As lawyers we are given a lot of power, and our obligation is to use that power to help the people who society hates the most. Hatred is a terrible emotion, and when governments incite their people to hatred, the government is almost invariably wrong to do it.

There no distillation of hatred like the government publicly announcing that it wants to kill one of its citizens. I remember Joel Durham, who was eighteen when they charged him with shooting someone in the robbery of a McDonalds. The DJ at a local radio station was hosting a call-in show every day on what part of Joel’s anatomy they would like to rip from his body that morning. Joel had to listen to this. And at the moment they actually get around to executing someone, that is the ultimate statement of hatred.

The moment the attack on the World Trade Centre happened, I remember one of the anchormen on the news asking rhetorically why it was that so many people around the world hated us, the Americans. That was a sensible question, and might have led us to a constructive reaction. But common sense quickly got drowned out in the tidal wave of hatred for anyone who looked vaguely like our stereotype of a Muslim. Of course, it wasn’t just Muslims -- a number of Sikhs got victimized as well, since the Americans couldn’t tell the difference. I started calling my liberal minded friends about what we were going to do about it, and most of them weren’t interested. September 11 had been just too much for them. I was very taken aback by this, but it only sharpened my resolve to get involved.

CP: How many detainees are you currently representing and from which countries?

CSS: I’m trying to help as many people as possible, but so far we can only represent the people from whom we have permission from the families. Obviously we cannot get permission from the prisoners, since the military won’t let us near them. The total number of cases that have actually been filed is around on 80. These are from several countries, including Britain, France, Algeria, Bosnia, Iraq, Jordan, Kuwait, Australia, Turkey, Bahrain, Yemen, Syria, and Canada.

CP: Could you tell us about your recent trip to Bahrain? What was the purpose of your recent visit to the Gulf and what was achieved?

CSS: There are prisoners from about 42 countries, many in the Middle East. I’m trying to go to as many of the countries as possible where there are prisoners in order to achieve various goals. One is to meet the families and get their permission to represent their sons and brothers. Second, to meet the people who have been released from Guantanamo, as a source of information concerning what is actually going on there.

Third, I’ve got dual US-UK nationality, and I simply want to apologise to these folk face-to-face for what my country, America, has done to their loved ones. What we are doing is utterly hypocritical, and hypocrisy is the yeast that always ferments hatred. We tell the world that we are the beacon of democracy and the rule of law, and the first thing we do is take people to Cuba, which we have said for 45 years has had no rule of law, and argue that these folk have no human rights. It is important for us to start repairing the hatred we have inspired so I am going to apologise to as many people as I can apologise to. It is always impressive how much a simply apology can do towards redressing wrongs.

CP: While in the Gulf, you met a number of the detainees’ families - how many participated and which countries did they come from? How many joined the legal action?

CSS: I met a total of about 30 families, all of whom wanted to participate. These were from Qatar, Bahrain, Libya, Saudi Arabia, Yemen, Jordan and Syria. Some had come great distances to help their loved ones. And it was wonderful to meet them and to be of some sort of assistance to them.

CP: What was your impression of the families and what was the impact of seeing their suffering first-hand? Could you share with our readers some of their accounts of their ordeal and how detention has affected the families?

CSS: I remember one guy who started talking about how much he loved his son, how much he missed his son, that he has not been able to talk to him for over two years. Then, the poor guy starts crying in front of me, he was obviously very embarrassed. But that is what people should do. If being helpless to get justice for your child does not drive you to tears, what would?

Another incident which sticks in my mind was speaking to this eleven year old child of one of the prisoners. I had a friend with me who had flown out to take pictures to highlight the families’ grief, and give us photos that we would hopefully be able to take to the prisoners when we finally get to see them. The child had got Play Station 2 and he was telling me about how he and his dad used to play Play Station 1, and how much he was missing his dad. Then he starts telling me about the Play Station 2 game that is based on the Afghan war. In order to win you have to be an American soldier and you have to kill lots of guys with beards who look like Arabs. You hear that and it's so shocking. It not just what the child has gone through losing his father to Guantanamo Bay, but the insidious invasion of this American Play Station propaganda.

CP: Do you feel that the action taken on the part of the Arab governments has been sufficient? What more should they be doing?

CSS: Before criticizing anyone, let me be clear that it is the Americans who are wrong, so I am not laying the blame at the feet of other countries. That said, there are very few governments who have done as much as they should. It’s quite a pleasant surprise really that the British have done more than most. I think most governments in the Middle East are intimidated by Americans and perhaps some of them buy into the propaganda that the people in Guantanamo are all terrorists. A lot of the Middle Eastern governments don’t want to know anything about this. That said, the Bahraini government was very hospitable to me and they have been pressing the US for action. Another purpose of my visiting the Middle East is to make contact with the regional governments because it is politics not law that will get the prisoners out of Guantanamo.

CP: What do you mean by that?

CSS: I spent 20 years doing death penalty work in the US where cases drag on for 25 years and that’s when you have a serious civilian court. And even then it has a lot more to do with politics than it does with law. I represented a man who bit an old lady to death with dozens of bites, but the victim was black, so it was a simple matter to get the death penalty off the table for him.

In Guantanamo Bay the government is dead set on saying that the prisoners don’t have legal rights, we have to fight for every minimal consideration they get. Unfortunately, it’s a case of might is right, and the Bush administration has the might.

It’s quite something that we have got this far. Certainly, for the first two and a half years we had no court in which to assert our clients' rights - the only place we got anywhere at all was in the court of public opinion. Back then, most Americans would gladly have lynched everyone in Guantanamo, and you and me along with them. Even now, while I’ve not done a poll on it, I’d bet that 95% of Americans think virtually that everyone in Guantanamo is guilty, even if we do have a few people saying they should have a trial before we convict them. But any decision made by the courts is still made with an eye turned to see what popular opinion thinks.

CP: What has been the response from the US Senators to the recently released dossier by the Tipton Three?

CSS: The US Senate was deluged with a number of highly embarrassing things about the abhorrent way the US acted in Iraq and Guantanamo. I don’t think anyone now realistically doubts the US military has been abusing people, but again you have to remember the US senators care a lot more about the upcoming elections then they do about the human rights of a bunch of foreigners. So, although they know what the Tipton lads said was true, it doesn’t mean they are going to do anything about it.

In fact, its got to the point where there is further documentation about the abuses in Abu Ghraib that even the Democrats don’t want publicized because it's so bad for America's international reputation and they would rather censor it than have America undergo more criticism. So while I would like to say that the Tipton lads' report made all the difference, I think the best we can say is that it was one important step forward along a very long and steep climb.

CP: Are you in touch with the former detainees and how are they adjusting to life after Guantanamo?

CSS: I have been in touch with several of the released detainees, though I should say that they have their own lawyers here and in other countries. People's reactions vary - there are some who want that nightmare totally behind them, and just want to get on with their lives. I can totally understand and respect that. But others want some sort of redress for what the Americans did. First and foremost they want an apology. Perhaps more important, they want to help the people who have been left behind, and are still suffering there.

No matter how strong people may be, I think all people who leave Guantanamo need mental and emotional support. They went through two years or more, living in a nightmare where they were told they were not human beings, and had no human rights. That will scar the strongest among us.

CP: What has been the response to your work from the US public? What is the public opinion generally in the US towards the Guantanamo issue?

CSS: When we first brought litigation against the Bush administration two and a half years ago, I think it would be safe to say, 99% of the Americans were against us. You have to remember that the presidency of the US is a powerful bull pulpit, and George Bush and his henchmen have been preaching about how wicked and evil everyone in Guantanamo Bay is for a long time. We don’t have a pulpit of any kind to respond, and while we may have made some gains in terms of the notion that everyone should be accorded basic human rights, we have made very little headway on convincing Americans that a large proportion of those at Guantanamo are not guilty.

It’s hardly surprising. I am one of many lawyers who have been banging on for decades about how we are fallible, and how many people on Death Row are innocent. It is only recently, in the wake of many DNA exonerations, that people have just begun to listen, and the polls still put support for capital punishment at 75 percent of the population. It’s a long battle.

CP: You’ve said that “Guantanamo Bay is about nothing else but hating people”? - can you elaborate?

CSS: The politics of hatred dictates what a government does when it is faced with immense problems - like crime, drugs or, in this case, attacks of the sort that happened on September 11. Such a government has a stark choice. On the one side, they could do something sensible about the problem, which may take years to resolve, and will definitely not be solved in time for the election cycle. On the other hand, the government can just tell the electorate to hate a small group of people to try and hope this distracts the public from what the real problem is.

Internationally, terrorism, as we label it, is clearly a problem, although I would argue that it has been with us a long time, and the pretence that we are in a new age is very questionable. But no matter what your view, the solution to terrorism requires an analysis of the causes of it, and some effort to address the grievances of people around the world. That would take a long time -- much longer than the American election cycle -- and it would take a lot of work and resources.

The Bush administration must face an election this November, and it is simply not willing to take the longer view. It is much easier to win an election by frightening and inspiring the electorate to fear and hate Muslims than it is to do something sensible about terrorism.

The politics of hatred is not unique to America - we do this in Britain as well. But hatred is a two-way street. So do the countries that we label the Third World. If America tells an Iraqi to aspire to fancy cars and McDonald’s burgers, what is the Iraqi government to do? The per capita national income in Iraq is roughly one hundredth of the US. The government can either say that people can have the American lifestyle if we all work very hard and are patient for a couple of hundred years . . . or the government can tell its people that the money-grubbing, oil-grabbing Americans are to blame for their misery. If there were true democracy in Iraq at the next election, there is no doubt who would win it, and it would not be someone who purported to admire America.

CP: What is your response to the US administration and Blair’s claims that Guantanamo is an extremely beneficial and important intelligence-gathering exercise?

CSS: My response to that is to laugh, if I can avoid weeping! If you were put in Guantanamo and you were threatened with the death penalty, you would confess to anything. Think about it. How long would you last before you would “confess”?? And what would you say? Would you try to be clever and say something people back home might not believe, or would you just say whatever the Americans wanted to hear?

There is no evidence that any useful evidence has come out of Guantanamo. On the other side, there is abundant evidence that thousands of Muslims round the world hate Americans for this. It’s not even just the victims, the Muslims – it’s also people from all walks of life. America has squandered an enormous amount of good will on this. And it makes the world a more dangerous place.

Guantanamo, like the wall in Israel, is an iconic symbol of hatred. Yet like the wall, it achieves absolutely nothing positive. So it is sheer folly.

CP: Based upon your knowledge of the detainees and their families, what is your response to the US’s claim that the detainees are the “worst of the worst” and hardcore Al Qaida terrorists?

CSS: Again, to laugh at them! They must think that we are the most naive people in the world! When Donald Rumsfeld says that all these people are wicked terrorists captured on the battlefields of Afghanistan, you only have to point out to him that Bisher al Rawi and Jamil el Banna were seized in the Gambia. I went online to check it out. The Gambia is a little further from Kabul than London.

CP: What was your reaction to the recent Supreme Court ruling? Do you feel that their ruling went far enough in condemning the Bush administration and what do you feel have been the implications of this?

CSS:I don’t have an enormous amount of respect for the US Supreme Court, because I don’t think many of the justices really understand what is happening outside their ivory tower. That said, the Rasul vs. Bush ruling was fantastic in its context because America is still in the throws of an emotional response to September 11th and there was every possibility that the Muslims in Guantanamo would be treated the same way as the Japanese in WW2 -- which means that we just intern the lot of them and make no distinction between those who may genuinely have done something violent against the US, and those who are entirely innocent. So it was great that the Supreme Court ruled the way it did, especially considering the fact that it is a very conservative court.

On the other hand, it was only a tiny step in the right direction. The Bush administration is trying very hard to neutralise whatever impact the decision had, so we have a long way to go.

CP: What is your opinion of the ongoing detainee reviews? Do you believe its an attempt on the part of the US to evade the Supreme Court ruling with the appearance of giving due process to the detainees? Do you feel this will lead to the release of many of the detainees or change the situation?

CP: The CSRT's (Combat Status Review Tribunals) are just a farce. They are Donald Rumsfeld’s attempt to see if he cannot outdo Joseph Stalin in holding a show trial. The only shame is the number of gullible people around the world who fall for this nonsense.

This is the way it works: you have the right to remain silent, and you have the right to produce any evidence that is reasonably available to you. The only evidence that is reasonably available to you is your own testimony, so if you don’t testify you have no evidence. So all of this is just a devious effort to interrogate the prisoners some more, and hold out a false hope that they might get something for it.

And it is a mockery of justice in other ways. The prisoners get a “personal representative” who is a military officer with no legal training who is duty bound to reveal whatever their “clients” say to their superior officers. We are their lawyers and we are not allowed to be there, but the media is. Again, I am ashamed that my government would do this.

CP: What is your opinion of the pending military tribunals for those detainees who have been charged?

CSS: Again the military tribunal process is a step in the wrong direction for the rule of law. It violates dozens of principles that we have developed over the last 400 years, including the use of evidence exacted under torture and coercion.

And what do we think that are we going to achieve here? The people charged are at best very small fish, and at worst are completely innocent without a true opportunity to prove it.

CP: What is the next stage in the campaign?

CSS: Gosh, that is hard to say because there are so many stages. There are 580-odd people in Guantanamo who need representation and yet Guantanamo is only the tip of the iceberg. There are the ghost detainees in Bagram airbase and many other secret American detention facilities around the world - this is next step. We need to metaphorically break open all of those places and get human rights in to all of these as well.

There is also an unending list of things we have to do for the Guantanamo folk, and I would welcome any offers of help from your readers!

CP: Do you believe Britain is doing enough for its citizens and residents in Guantanamo?

CSS: I have been quoted as saying that John Howard of Australia is the most craven politician in the world at the moment and I stand by that. So it is good to know that there is someone who is genuinely George Bush’s poodle these days, though at least the Australians have a chance to dump him in the October elections.

The British have been better than that. I think the British are doing more on behalf of their citizens than most countries, and I applaud that. But it is always a matter of degree. If I were carrying a British passport and I was treated the way our citizens have been treated, I would expect a United Nations resolution to sanction the US.

And the British government’s response to the plight of the British residents (as opposed to citizens) in Guantanamo has been shameful. I don’t see how we can respect the refugee convention and say someone living in our country as refugee cannot ask this country for help. In the case of Bisher al-Rawi, for example, the government took the risible position that he (as a refugee from Iraq) must apply for assistance from the government of the country from which he had fled. At the time, Saddam Hussein was running the country. I think we have absolutely let down these long-term residents of our country. We have an obligation to all people who are the victims of injustice in Guantanamo Bay.

CP: How do you react to the claim, made by the brother of one of the detainees recently, that Bush and Blair are no different to Saddam Hussain?

CSS: I am not sure that such hyperbolic statements are very helpful, because they distract us from the real issues. I don’t want to be a hypocrite. On one level, I suspect that Bush has caused harm to far more people than Hussein. But I would hesitate to condemn Hussein or Bush on a personal level, without charges and a fair trial.

CP: What do you believe will be the long term impact of Guantanamo on relations in the Middle East/the Muslim world and world politics?

CSS: The short term impact has been an absolute catastrophe where we have damaged the international reputation of the US, we have damaged relations with everyone inn the Muslim world, and we have inspired thousands of people to commit violent acts against US and others. This is very sad and utterly pointless.

The long term impact is very difficult to gauge and it will depend very much on all of us, whether we can repair the damage that Bush has caused. The first step to repairing that damage is to get a new President.

CP: You are of the view that "the war on terrorism is nothing more than America's crusade against the Muslim world". Could you elaborate?

CSS: America is very uncomfortable unless it has a black and white enemy. American needs clarity in its world. Everyone was happy when we had the Soviets and the Red Menace, opposed by America and everything good on the other. The US was uncomfortable after the Berlin wall fell because things were no longer black and white. There was the war on drugs and the war on poverty, but these were complex and did not have evil people who could hold their own as the bad guys in a James Bond film.

Unfortunately, the war on terror re-established America's black and white world, and refocused our fear and hatred. As long as America takes the idiotic and naive approach that it is taking in the war on terror then an American passport is going to be an increasingly dangerous commodity

CP: What do you think the public - Muslims and non-Muslims alike - should be doing?

CSS: One thing I would encourage all Muslims and non-Muslims alike is to recognise that this is a war on all Muslims not a small group. If we don’t stand up for each other and fight, then we are all going to lose. So let’s get away from the idea that America is only hostile to this small group of wicked terrorists. America is hostile to profoundly important issues of human rights.

If we do work together, ultimately we will prevail and this moment of insanity will pass. When asked whether a small group of people could ever change the world, a sensible American replied, “It’s the only thing that ever has.” What other purpose in life is more important now than trying to prevent George Bush from imposing his nightmare on the world around us.

CP: What do you think of our website?

CSS: I think that your website is fantastic! One of the aspects of the website that is so important is the ability to reach out to people around the world who need help on behalf of their loved ones. It’s a wonderful website, and has done an enormous amount of good. Please keep it up.

CP: Clive Stafford Smith, thank you for speaking to us.