Interview with Marc Falkoff

Marc Falkoff, the lawyer defending 16 Yemenis at Guantanamo, also editor of poetry compilation Guantanamo: The Detainees Speak, talks exclusively with Cageprisoners, about Guantanamo, and his clients and their poetry.

CAGEPRISONERS: What made you take on the Guantanamo cases in the first place, as you were going against popular opinion at the time?

FALKOFF: Well it was pretty simple. First of all I came on the cases with Covington and Burling, I brought the case to the firm in July 2004 right after the Rasul decision by the Supreme Court which said these guys have the right to file habeas corpus in federal court. At that point we knew nothing about who was in Guantanamo besides what the Bush administration had told us. They were telling us they were the worst of the worst, that they’d gone through hydraulic lines to bring airplanes down and ridiculous stuff like that. And we really had no evidence to the contrary. I personally am not someone who immediately distrusts government actors when they tell me they’ve captured someone they think is dangerous. So as far as I knew we were taking on the cases and representation of men who might be terrorists or associates of Al-Qaida. That said, it is very important to me that we as Americans uphold the rule of law. This is why we are a strong country. This is why we are the city on the hill. We are supposed to be a beacon for human rights and due process. If you are pretty sure that someone is an evildoer that person must have some kind of judicial process. As a lawyer, I took an oath when I worked in the federal court system to uphold the constitution. And I believed that what we were doing was undermining the constitution. So, that’s why I took on these cases. Regardless of what public opinion might be you have an obligation to the rule of law and that’s why I took on these cases.

The Worst of the Worst?

And what became very interesting once we started going down to Guantanamo as lawyers in the fall of 2004, all of a sudden we learned not only that so many of these men had been abused and mistreated and in some cases tortured, but we also were, at least I was, stunned to find out that for many—if not most—of these men there was in fact very paltry evidence that they were in any way associated with Al-Qaida and often paltry evidence that they were associated with the Taliban. This goes to show that this is why we need court over site in the first place. This is why you can’t just imprison people on the say so of the president or the military.  You need some kind of judicial over site to make sure mistakes don’t get made. And in fact we’ve already seen that—it’s pretty clear to everyone now, I think—that the majority of the men who have been detained at Guantanamo have been detained there mistakenly. 770 men roughly have been through there, over 400 have been released. It beggars belief that our military would release 400 of the worst of the worst terrorists out into the world again. They won’t admit it but they are acknowledging they’ve made a mistake. And there are still hundreds of men in Guantanamo that don’t belong there.

CP: Can you describe to me your initial meeting with your clients, can you share some stories about them?

FALKOFF: I’ve got 17 clients who’ve been at Guantanamo, all of them Yemeni. I’m co-counsel with Covington and Burling for all of them, even though now I’m a law professor, I’m no longer at the firm. One of our clients has subsequently been released so we have 16 guys at Guantanamo. The first time I went down was in fall 2004. And the first guys I met with, I remember meeting with Adnan Farhan Abdul Latif—I remember meeting all the guys—but I specifically remember meeting with Adnan and Farouk Ali Ahmed.

First of all it’s a very long trip to get down to Guantanamo. Just a pain in the neck. Even though the military has jets that fly down there regularly that journalists get to use we had to make our way to Florida and then we had to get on a small 12-seater plane and fly around Cuba; it’s an all day affair. We are not allowed to stay on the same part of the island where the prison is located, so we are quartered in these barracks-style dormitories. Then we have to take a ferry over to the prison.  It’s all a real pain in the neck. You get into the prison finally and you are brought to this camp, Camp Echo, where the interviews can take place. And there are all of these really retrofitted storage containers spread out through the camp. And you walk into one of these trailers. And basically half the trailer is taken up with a cage where the prisoner is usually kept. And the other half is open space with like a card table and a couple of chairs. And so I went in with my interpreter. And there was our client—I’ll just describe my interview with Adnad Farhan Abdul Latif. 

The Meeting

He was sitting there, he was chained at his legs; his hands were chained together. And all of the chains handcuffing his hands and legs were connected to a bolt on the floor. So he was basically in four-piece restraint. He was wearing the iconic Guantanamo orange. He was just this very small, like most Yemenis, just this small guy, kind of elfin featured. And he was just sitting down there. And we sat down and introduced ourselves. Well, first we managed to get the soldiers to unchain his hands, but he was still chained at the feet to a bolt on the floor. But they unchained his hands. We began speaking with him. I told him who I was, I told him about the Supreme Court case, and that I was his lawyer, and that I’d in fact been his lawyer for several months authorized by his family, to proceed in court on his behalf. And I just started talking about stuff.

He had a lot of questions for me, he was clearly skeptical at first: He had his arms folded. As far as he knew, I could very well have been just another undercover interrogator tricking him into saying something. That’s not paranoia. Given that we, the United States, have not been acting in accord with the Geneva Conventions it would not be surprising if they actually did engage in that kind of ruse. So he was skeptical at first. I spent the day speaking with him. Over the course of a few hours we just started talking about the American legal system, what was likely to happen, what a habeas corpus petition was, the structure of our government, the fact the courts have control over the president, the president can’t act in contravention of the courts—something that was difficult for him to believe was the case. And strive as I tried to assure him that even the president has to abide by the law, of course it’s more than three years now and he has not had his day in court.

At the time we were just trying to lay out what was going on, assure him that Guantanamo was no longer going to be an informational black hole. That we had convinced the court that the law really does apply at Guantanamo even though the military argued, literally for three years, that the United States had no legal obligation at Guantanamo, that the international law didn’t apply there, that the Geneva Conventions didn’t apply there, that the constitution didn’t apply there. And the courts have determined otherwise. It was a long conversation, but eventually I believe I gained his trust. (For more information on Adnan Farhan Abdul Latif read Falkoff’s piece on him in the Amnesty Magazine).

At the time we had 12 clients. I went down with a colleague of mine. Between us we did the same thing with all of our clients. We were down there for more than a week. On that first trip I met probably 2/3rds of our clients. We did exactly the same thing. We tried to build up a relationship of trust with these guys. They were understandably suspicious, some more than others, but I think we got through to most of them.

Abuse

What we learned was remarkable. First of all we learned that they had been terribly mistreated when in United States custody. More so when they were being held by the United States at Bagram and Kandahar than when they were in Guantanamo: In those camps in Afghanistan they were just always roughed up and beaten up and were living in horrific conditions. But of course at Guantanamo too we found out about all sorts of disturbing stuff and I could go on for a long time about it.  For example there were interrogations at gunpoint, they were subjected to extremes of hot and cold in their cells, they were prevented from praying, they were mocked during their prayers. For violations of the arbitrary disciplinary rules at the camp either their beards were shaved or their trousers were taken from them as punishment. These kinds of things don’t make sense as a punishment unless you recognize that they are attempts to humiliate the men because of their religious faith. Taking the trousers away and leaving the men in shorts basically meant they couldn’t pray because they weren’t modestly dressed. And as a punishment, it makes no sense in the 100 degree whether in Cuba leaving someone in shorts rather than long pants. It only makes sense as a punishment if you understand it to be a religious humiliation.

I found out from one of my clients something that I almost didn’t write down. He was telling me that a different prisoner had been in interrogation and had refused to cooperate. And that the female interrogator had basically smeared what she said was menstrual blood on his chest. Now that just sounds insane, right? I mean, I almost didn’t write it down. First of all it didn’t happen to my client. It sounded like a sort of prison-wives-tale that had been going around. But then I learned that that had happened. And that allegation has been confirmed not only by Erik Saar_,_ one of the army’s linguists, but also in a separate investigation that the military did itself in a Schmidt-Furlow report. Basically it corroborated the story. It wasn’t menstrual blood that was smeared on the prisoner’s chest it was in fact red ink but of course the he didn’t know that. So it was remarkable learning what was going on down there.

Unjust Incarceration

Of course the other thing we learned was that these guys shouldn’t have been there in the first place. We found out how they were picked up, the circumstances in which they were taken into custody in the first place. Which for most of the men was not on a battlefield fighting. In fact none of my clients were pick up on a battlefield fighting U.S. troops; none of my clients were picked up on a battlefield period. And that’s contrary to the administration’s disinformation campaign. Most of my clients were picked up at the Afghan-Pakistan border trying to flee the bombing in Afghanistan, trying to eventually get back to Yemen. They were picked up by Pakistani security forces and they were turned over to the Americans at a time when the Americans were offering bounties of about $5,000 dollars a head for any Al-Qaida or Taliban members. My clients are all Arab. And if you were Arab and you were caught at the border you were turned over for a small fortune to the United States. That was the kind of screening procedure we had in place. And of course once you were in the custody of the Americans and you had been accused of being an associate of Al-Qaida there was no way that you were going to get out of the clutches of the Americans.

And just put yourself in the shoes of an American soldier just a couple months after 9/11: someone has just handed you a prisoner and said that he’s an associate of Al-Qaida. Can you even conceive that you would look neutrally on the information and evidence that had been gathered and let that person go, even if you were convinced that the person had nothing to do with Al-Qaida or that there was no evidence? It just wouldn’t happen. Once you were in the system, you were there to stay.

So that’s the kind of information we began to learn from our first trip down. As I’m sure you know we weren’t allowed to share anything with the public until we cleared our clients’ statements with the pentagon because the military has asserted that anything our clients tell us is potentially a national security threat so it has to go through this review team and be cleared. When my colleagues and I first tried to get some of this information through this reviewed team we were denied, we were told that they were revealing interrogation methods and techniques and therefore they were classified, which is remarkable if you think about it. So we had to threaten legal action and then the pentagon reconsidered and it was at that point, when we were able to start clearing information, that we really first began to learn about what was going on at Guantanamo.

CP: What made you take this action of publishing poetry? It isn’t a part of your job as a lawyer in any way.

FALKOFF: Well, what doesn’t have to do with being a lawyer? My job is to represent my clients. My job as a lawyer is to tell my clients’ stories in briefs and oral argument before a judge. Just like any person who has been accused of a crime, that person is entitled to an opportunity to tell their story. Thus far I have been representing these guys for over three years. And even though the Supreme Court decision in June 2004 said that these guys have the right to go into court and protest their imprisonment, we still have not had a single hearing for a single one of the prisoners at Guantanamo. So far, I’ve been prevented from telling the men’s stories where they should be told—in a court of law and in legal briefs. So, one of the things the poetry is doing is it’s allowing me to tell some of their stories in alternative form. I should be telling their stories before a judge, but were going to have to go to the court of public opinion.

The Idea Behind the Poetry

Taking a step back, once I realized that my clients and other men at Guantanamo were writing poems, relatively quickly it occurred to me that this was an opportunity for us to use their literary output to begin to restore a human face to these men who, for the most part, have been unjustly confined for six years now.  I received a couple of poems in letters that my clients had written to us. To be honest, when I first received the poems I didn’t think too much of them. I thought they were interesting (I have a degree in literature, so maybe I was more interested than most lawyers), but it didn’t occur to me to put a book together. But a couple months later I was reading a book of poems by Brian Turner who is an Iraq war vet who was writing poetry about being a soldier on the ground. It was really gripping stuff, and it really allowed me to empathize with what a soldier on the ground was going through even though it was an alien experience to me. And it was at that point I realized what literature does. Literature allows you to form a connection with someone, to empathize with them, to understand a different person in a different context than you are used to. And it occurred to me that this is precisely what my clients were trying to do with me when they sent their poetry to me. And I decided at that point to see if other lawyers had clients that had done the same and I found out that there were quite a few amateur poets at Guantanamo. So this was an opportunity to be able to counter the propaganda campaign that’s been waged by Bush Administration.

Importance of the Collection

Our clients have been called the worst of the worst. They’ve been branded enemy combatants with out any judicial review. They’ve been branded terrorists with out ever presenting to the public any evidence that they had been guilty of anything. So basically they had been dehumanized and this was an opportunity, I hoped, to present them to the public as actual human beings who deserve, at the very least, a hearing before a neutral judge to determine whether they are the evildoers President Bush says they are.

So will these poems have any direct impact on the litigation in the Supreme Court, in the Court of Appeals, will they factor in to the Supreme Court arguments on December 5th? No, but they are nonetheless valuable and important documents for us as a society in order to allow us to recognized that these are real people we are talking about. They aren’t caricatures. These are real men who are brothers, they are sons, they are husbands, they are fathers. One of my clients—he is not a poet—has a wife who gave birth to their child just a few months after he was moved to Guantanamo. This guy has never seen their daughter who is nearly six years old now.

CP: Are the prisoners aware of the publication? Did the publication create a different atmosphere for them?

FALKOFF: None of the poems were published without the awareness and consent of the prisoners. They all knew about it, which is one of the reasons it took such a long time to get the volume going because it’s not like an ordinary anthology where the editor gives the author a call and asks for permission to publish the piece: Communication at Guantanamo is always a long drawn out affair that takes weeks or months. I can’t communicate directly with the poets who are not my clients; I have to communicate through their lawyers. So it’s a difficult process. So, yes, they all know about the poetry.

Some of them are more interested in the project then others. You’ve got to realize that with very few exceptions, none of these poems were written with expectation that they were going to be read by the public. Some of these poems were literally scratched into Styrofoam cups and sent around the cellblock before they were tossed into the garbage. Others were ways the men were occupying their minds as a diversion that they eventually found reason to send on to their attorneys.

That said, these are guys who have been imprisoned for six years. They recognize that there is some small potential value in having this collection published. But none of them are jumping up and down for joy. It isn’t like an undergrad getting published in the Paris Review. They recognize it is just a part of an attempt to begin to humanize them and hopefully lead to their release, but ultimately they recognize that this is not a profound moment in their quest for justice. It’s something they approve of, but I don’t want to pretend that this is their life’s goal, to be published in an anthology of Guantanamo poems.

CP: But did the fact that people were reading about them, hearing their words, did that create some sort of relief for them?

FALKOFF: There is no doubt about it that some of the men clearly do want the public to read their work and they think it’s important. For example, one of the poets, Shaikh Abdurraheem Muslim Dost, was already a well established author before he was at Guantanamo and he wrote literally thousands, literally tens of thousands of lines of poetry almost all of which was confiscated by the government which they refuse to release or allow us to make public. This is a guy that clearly had something to say, and he wants the public to hear what he has to say. He has incidentally been arrested again. He was released from Guantanamo almost two years ago now. He, along with his brother, published a memoir, The Broken Shackles of Guantanamo. After he published that the ISI (the Pakistani intelligence) arrested him. He’s been imprisoned in Pakistan now for over year now.

Other of the prisoners very much had something to say to the public. Some of the men had something to say to the public, unfortunately the public will never hear it because the military refuses to allow for those poems to be made public at all.

CP: How would you characterize the poems, are the poems an indication of a more subtle, deeper war between the prisoners and their guards?

FALKOFF: It’s difficult to characterize the poems as A, B, C or X, Y, Z because they are so different. Many of the poems convey a nostalgia, a longing to be home with family. A few of the poems are very religious in nature and discuss their reliance on faith, on Islam, on Allah. Some of the poems express a real disillusionment with the United States. And having spoken with all my clients about this, to a man, when they were handed over from the Pakistani intelligent to the United States military they all rejoiced because they thought the abuse was going to stop, that they weren’t going to be tortured, that they would be treated humanly and fairly and they were all terribly disappointed and disillusioned. That said, I do not believe you see in any of these poems—maybe a couple of exceptions—although you see disillusionment with America, you do not see hatred of America. And you certainly don’t see, in any of the poems, a hatred of Americans. Sometimes you see a real disdain for the Bush Administration (I’m thinking, for example, of a poem by Martin Mubanga who is a British citizen who was released from Guantanamo years ago).

These are men who have been in prison for almost six years. I can’t speak for all the poets because I don’t know the secret information about them—I’ve only seen the secret, classified information from my clients, a couple of them are poets. So I can tell you from my clients these are men who have been detained unjustly for six years. And of course they are going to be frustrated and of course you are going to see that frustration come out in the poetry. If you were unjustly just taken off the streets and thrown into prison without ever being allowed to see a judge for six years, and you were sitting down to write poetry of course you are going to reflect your frustration in some of your poems.

CP: And what you’ve just said—the lack of hatred or violence—in the poems is really reflected in, at least to me, another astonishing aspect of the poems: the level of brotherhood between them, a lack of bitterness and an eagerness of wanting to help others.

FALKOFF: Absolutely, that really is reflected in the poems. There is brotherhood, so much brotherhood between them. I know it sounds cliché, but honestly these guys really care more about their fellow detainees than they do for themselves. For example, one of my clients Mohammed Mohammed Hassen Odaini, he is really a very smart, sharp young man. He really gets it. He really understands the situation. And he is very proactive in the prison. He works actively to try to help the situation there. He writes petitions, he tries to get lawyers for other prisoners. He tries to educate the other prisoners about the process because understandably a lot of them are skeptical. And he has been slated for release, but hasn’t been released yet. And really the best thing he could do for himself now would be to lay low, keep a low profile, so he could get out. But he is sacrificing that to help out his fellow prisoners.

And this very much is reflected in the poetry. I published every poem I got, so this wasn’t set up. The only poems I did not publish were some of the British detainees who had been previously released and remembered some of the poetry they wrote, I did not publish some of their poetry because then the distribution would not have been even. But other than that I published all the poems I got.

CP: Like you said earlier, a number of poems show this level of reliance upon God, a spiritual contentment they have, their love of the Prophet, etc. Do you think Islam has helped them? Has it played a big part for them?

FALKOFF: Oh, absolutely their faith has played a big part for them. They really have taken comfort in it and it has really helped them hold on. Many of them rely on their faith to survive. But even though you have this reliance on faith and it’s played a crucial part for them, it’s not enough. It’s been more than six years now and they haven’t seen a judge. There have been hunger strikes. Many prisoners—I’m not a psychiatrist, but I can tell you many prisoners are suffering from clinical depression. We’ve had four suicides at Guantanamo—of course, the military calls it asymmetric warfare. We’ve had many more suicide attempts. The government, however, does not call them suicide attempts, but "manipulative self-injurious behavior" or "hanging gestures."

CP: So, would you say then the sentiments in the Death Poem, which is a poem that really shows the human crime happening, the poet really is almost beyond faith in humanity in general, do you think this mindset is becoming more prevalent with the prisoners?

FALKOFF: Yes, unfortunately it is becoming more prevalent as time goes on. Many of the prisoners are just loosing the will to live. And I guarantee you very soon we will start seeing people die at Guantanamo. People will just start dying. The military will call them natural deaths but that won’t be the case. Prisoners will just start dying because they will have lost the will to live.

To a person, the prisoners thought they were in good hands when came to Guantanamo. They were relieved because they thought they would finally get a chance to tell their stories. And obviously that has not been the case. It’ been over three years since I’ve taken on my clients, since the Supreme Court decision that these guys had a right to tell their stories in court, and they haven’t seen their day in court.

One of my clients, Jamal Mar’i, said that he had to stop seeing me. He said that every time I came to him, I brought him hope that something was going to happen. But then nothing would happen and he said he would get crushed. He said that we were “like a mirage in a desert” and that he could no longer live with hope, and that therefore he didn’t want us to meet with him anymore—at least until we could tell him he was being freed or he would get his day in court. 

CP: You mentioned prisoners hunger striking and a couple of the poems address hunger striking, how do you feel about hunger striking?

FALKOFF: I’m really torn about hunger striking. I don’t want them to die, but I also respect that this is their decision and they have a right to protest. And the military is not respecting this. They are force-feeding the hunger strikers. Twice a day they put a tube down their throats to feed them and then the pull it out. Twice a day. They do not just leave it in. The camp commander said he wanted to make the hunger striking “inconvenient,” but it’s really to create pressure so they stop. This is illegal and unethical. The military is ignoring the Geneva Convention guidelines. The only way force-feeding can occur is if the person is mentally incompetent, and we can’t prove that because an impartial psychiatrist must make that decision.

The prisoners are hunger striking because it is the only way they can protest peacefully. It’s the only way. You know, they are not protesting to have an upgrade in the food they are getting or anything like that. What these hunger strikers are doing is, they are willing to sacrifice their lives so that the other prisoners can have a chance at getting a day I court. You know, I don’t want my clients to die. People die in hunger strikes. People die. We’ve seen that before with Bobby Sands. One of my clients, Adnan, is on a hunger strike now. I have a meeting with him next month so I will see then if he is still on it. I’m torn because I don’t want them to die, but I also have to respect the prisoners’ wishes and decisions.

CP: Robert Pinsky said, on the back of the book, that the prisoners “_deserve above all, not admiration or belief or sympathy—but attention. Attention to them is urgent for us.” _So once we, the public, read this book, and find out about all this, what should we do? What do you, as their lawyer, think we should do?

FALKOFF: One of the most gripping poems to me is ‘Ode to the Sea’ by Ibrahim Al Rubaish. In it he is addressing the sea saying ‘you know you could have helped me, and I would have swam on you to my family, and you see all this happening to me, you know what’s going on, and instead of helping me, you are helping guard me.’ In the poem he’s addressing the sea, but he is using the sea as a metaphor for the public. He is addressing the public. This poem is an absolute indictment of the American public. He’s saying, you’ve seen what’s being going on, you know what’s happening. And you’ve been complacent. And in being complacent, you are now complicit. They see America as being hypocritical.

You could pressure your representative to push for getting their day in court, pressure them to shut down Guantanamo, to restore habeas corpus. Write your congressman, it works! Send him an email. Contact the editor of a local newspaper, have a meeting about the situation there. I guarantee you, if you had ten people have a little rally outside a government building it would attract media attention. If you are a college student with Amnesty, organize a rally. Give me a call, I’ll line up congressmen. We can come and talk and have a rally or conference. People can make a difference, but they first need to make the effort.