Clive Stafford Smith is the legal director of the U.K. charity Reprieve and represents more than 50 prisoners in Guantanamo Bay. He is the author of a new book detailing the inside story of life in what he describes as the "flagship" of secret prisons, "Eight O’Clock Ferry to the Windward Side: Seeking Justice in Guantanamo Bay." [includes rush transcript]
This is a rush transcript. Copy may not be in its final form.
JUAN GONZÁLEZ: The Bush administration urged the Supreme Court Tuesday to deny constitutional protections to the 340 prisoners at the U.S. prison camp in Guantánamo Bay, Cuba. The administration’s brief addresses an upcoming Supreme Court case on whether prisoners at Guantánamo Bay should have the right to habeas corpus after all. Boumediene v. Bush and Al Odah v. the United States challenge the constitutionality of the Military Commissions Act passed by Congress last year. This is the third time that the Supreme Court will hear a challenge to the Bush administration’s claim that Guantánamo detainees can be denied all constitutional rights.
But the Bush administration insists that there is no need to grant detainees the right to habeas corpus, because Congress gave them "a constitutionally adequate substitute for challenging their detention." It adds that the detainees "enjoy more procedural protections than any other captured enemy combatants in the history of warfare."
AMY GOODMAN: Clive Stafford Smith is the legal director of the British charity Reprieve, and he represents more than 50 prisoners at Guantánamo. Before advocating for the rights of "enemy combatants," Smith spent more than 20 years defending people on death row here in the United States. He is the author of a new book detailing the inside story of life in what he describes as "the flagship of the secret prisons." It’s called Eight O’Clock Ferry to the Windward Side: Seeking Justice in Guantanamo Bay. Clive Stafford Smith, joining us in our firehouse studio, welcome to New York.
CLIVE STAFFORD SMITH: Thank you.
AMY GOODMAN: First, let’s start off with Sami al-Hajj. He is a prisoner at Guantánamo that we have covered extensively. Explain who he is and what the latest is about why he remains in prison, for how many years at Guantánamo?
CLIVE STAFFORD SMITH: Well, he is almost six years now in Guantánamo Bay. Sami al-Hajj is an Al Jazeera cameraman. I spent a lot of time with him, and I’ve investigated his case thoroughly. And look, he is no more a terrorist than my grandmother. But, you know, we don’t ask people to just accept that. All Sami wants is a fair trial, but, of course, he hasn’t got one.
I was down in Guantánamo just last week, and Sami, on the fifth anniversary of his detention by the United States — he’s a very patient guy — after five years, he went on hunger strike. And today, you know, as we sit here with our coffee, he hasn’t voluntarily eaten for 277 days.
And what I just discovered this week — I got it unclassified on Monday — the latest allegations against him. Every time they come up with something, we prove it’s nonsense. And yet, on September the 11th — this is the second time they’ve chosen September the 11th to do this — they alleged — and I’ve got it right here; I’m going to read it to make sure I’m accurate you — that the training that Sami received to become a supposed terrorist was, quote, "the detainee was trained by Al Jazeera in the use of cameras." And that’s the sort depths, unfortunately, to which we’ve sunk in making allegations against people.
AMY GOODMAN: Explain how he was picked up.
CLIVE STAFFORD SMITH: Well, he was picked up on the border of Afghanistan when he was going in with the film crew — he’s the cameraman — to work with Al Jazeera, and they were working out of the same house as CNN. We can’t prove it, because, of course, it’s all secret, but the strong indications are that they picked him up because they thought he was the cameraman who filmed the Al Jazeera interview with bin Laden, because Taysir Alouni had been the correspondent and there was a guy called Sami as the cameraman. As has so often, sadly, been the case, they were wrong. Their intelligence was wrong. Sami wasn’t the person who did that. But by that time, he was in U.S. custody, and he’s been there ever since, and his little seven-year-old son Mohammed hasn’t seen him for six years.
AMY GOODMAN: But even if he had been the cameraman that filmed the interview with Osama bin Laden, that’s not a basis to arrest somebody. John Miller, who’s the spokesperson for the FBI, or was for a while, interviewed Osama bin Laden when he was an ABC reporter.
CLIVE STAFFORD SMITH: I see you squirming a little as a journalist. And, of course, that’s right. But we were in court in the District of Columbia back in December 2004, and the issue came up about what the definition of "enemy combatant" was, and one of the hypotheticals that the judge posed was, if you, as a journalist, were the guy who interviewed bin Laden, and then you failed to tell the CIA where bin Laden was, would you be an enemy combatant? And, you know, that was one of the ones they wouldn’t rule out.
AMY GOODMAN: Wadah Khanfar is the managing director of Al Jazeera, and in February of 2006, Democracy Now! went to the headquarters of Al Jazeera in Doha. This is what he had to say about Sami al-Hajj at the time.
WADAH KHANFAR: For more than three years, he is still in Guantánamo Bay. And we have received some letters from him, you know, that goes through the, of course, American guards, but basically I would say that the issue of Sami al-Hajj again has created that rift and that feeling that there are many things that have gone wrong in the relationship between the Arab world and the United States of America after the 11th of September.
We have been — I remember, as a journalist, before 2001, a lot of our Arab governments feared, you know, and they were very — it was difficult for them to jail a journalist, because they would say then that the Americans will make big voice, big loud voice about it, and they will condemn us. So they would respect a little bit of freedom of expression for us to act, because they don’t want to make big issue from the American civil society and organizations. Now, we have someone who is spending more than three years in jail, and we cannot even get any real explanation why he is there and what is the crime of Sami al-Hajj to be held in Guantánamo.
AMY GOODMAN: I’m looking at the pamphlet that says Sami’s first interrogation at Guantánamo came after two days of sleep deprivation. Agents from the Pentagon, CIA, FBI were present, but as much as they wanted to extract incriminating evidence from Sami, they were as interested in gaining inside information about Al Jazeera and recruiting him as a spy both in Guantánamo and in the event of his release.
WADAH KHANFAR: How could we explain this? I mean, I have read this in the newspaper. The lawyer — I mean, the reporter who received that from the lawyer confirms this particular incident. He has been asked to spy on us. He has been asked to give information about the relation — the assumed relationship between Al Jazeera and al-Qaeda, during his coverage in Afghanistan. And the man is still in jail, and he did not give any information. And unfortunately, even they have, according to the reports that we received, he was told that if he gives this kind of information, he would be immediately discharged.
AMY GOODMAN: Wadah Khanfar, head of Al Jazeera. Clive Stafford Smith, you’re Sami al-Hajj’s lawyer; your response?
CLIVE STAFFORD SMITH: Well, of course, I’ve been down to see Wadah, and I was cracking a joke in his office that I’d like to know the coordinates of it, because George Bush had just said he was going to bomb it. Wadah didn’t think that was very funny. And, unfortunately, you can see his point. And it’s a very sad moment when we in the United States get to the point of threatening one of the few organizations in the Middle East that is genuinely committed to free speech. You look before 9/11, the United States, even in the Bush administration, was a very strong supporter of Al Jazeera. And I am an admirer of them. And I think we should be in favor of free speech. And, you know, I’m glad for what you’re doing for Sami al-Hajj, but Western journalists in general need to do more for this guy who’s locked up in Guantánamo.
JUAN GONZÁLEZ: The current case that we led with the headlines on, the attempt once again to argue the issue of habeas corpus and the Bush administration’s position that these are the most protected enemy combatants in terms of legal procedures.
CLIVE STAFFORD SMITH: Well, I mean, the legal term for that is bull***t, I think. I mean, it’s something that is just beyond me. When first they established Guantánamo Bay, it incensed me so much, as it does so many people, that in the war to preserve democracy and the rule of law, the first victim should be the rule of law. Why can we not provide legal rights to these guys? You know, with Sami al-Hajj, I don’t say, "Let him go," I say, "Give him a fair trial. Bring ’em on," in the immortal words of Bush, because then we can see what the truth is, and I’m pretty confident what the result will be.
AMY GOODMAN: The fact that right now Alan Johnston, who is that BBC reporter held in Gaza for months, has now come out and written a letter for Sami al-Hajj, talking to him, talk about the significance of that.
CLIVE STAFFORD SMITH: Well, Sami and his family felt very strongly that they should intervene for Alan Johnston when he was held by the Army of Islam in Gaza. And so, through Al Jazeera, the al-Hajj family made an appeal, because what we figured was it was in Arabic and the people who were most likely to be watching were the people kidnapping Alan. And I hope, and I like to think, that that appeal contributed somewhat to the liberation of Alan Johnston.
I talked to Alan in England, and he was kind enough to return the favor. And he wrote a letter, and you cannot imagine how encouraging something like that is for Sami down there in Guantánamo Bay to know that a Western journalist who suffered the same thing is coming to his support. And Alan says, "Look, what you’re going through, Mr. al-Hajj, is far worse than what I went through in Gaza, and I fully support your right to a fair trial."
JUAN GONZÁLEZ: Your book, Eight O’Clock Ferry to the Windward Side, the title, first of all, and then also could you talk to us a little bit about the experiences when you’re down there and the process and the difficulties you encountered, even in being able to meet with your clients?
CLIVE STAFFORD SMITH: Well, the title is just every morning you go across the 8:00 ferry from where we as lawyers are kept to cross where the base is. It’s a bit like Groundhog Day. In fact, one time I was down there, Groundhog Day was on every night on television. I began to get a little nervous.
It’s a very bizarre place. I just recently got into this dispute with them, where they accused me of smuggling Speedo swimming trunks into my clients. And, look, let’s face it. Where do they swim? There’s only the toilets. And I suggested they put a sign up in each cell, saying, you know, "We don’t pee in your swimming pool, so please don’t swim in our toilet." But it is just a very, very bizarre world there.
And, you know, much as there are shocking things that happen — and I have witnessed them, and I’ve seen them — I think it’s very wrong to blame the small people, to blame the soldiers. Many of the soldiers treat me with great respect, and they’re very nice. But they are basically decent people who are being required to do a totally indecent job. And, you know, as many politicians have now said, we need to close that place yesterday.
AMY GOODMAN: In January of this year, a top Pentagon official urged U.S. corporations to boycott law firms whose attorneys represent prisoners at Guantánamo. Charles "Cully" Stimson, who’s Assistant Secretary of Defense for Detainee Affairs, said in a radio interview that companies might want to shun firms that represent "the very terrorists who hit their bottom line back in 2001."
CHARLES "CULLY" STIMSON: The result of a FOIA request through a major news organization, somebody asked, "Who are the lawyers around this country representing detainees down there?" And you know what? It’s shocking. The major law firms in this country — Pillsbury Winthrop; Jenner & Block; Wilmer Cutler Pickering; Covington & Burling here in D.C.; Sutherland Asbill & Brennan; Paul, Weiss, Rifkind; Mayer Brown; Weil, Gotshal; Pepper Hamilton; Venable; Alston & Bird; Perkins Coie; Hunton & Williams; Fulbright & Jaworski; all the rest of them — are out there representing detainees. And I think, quite honestly, when corporate CEOs see that those firms are representing the very terrorists who hit their bottom line back in 2001, those CEOs are going to make those law firms choose between representing terrorists or representing reputable firms. And I think that is going to have major play in the next few weeks. And it will be fun to watch that play out.
INTERVIEWER: But clearly, Secretary, the attorneys who are representing the terrorist detainees, they are being paid by someone. I mean, there must be an organization that is funding this representation. Who is that?
CHARLES "CULLY" STIMSON: It’s not clear, is it? Some will maintain that they’re doing it out of the goodness of their heart, that they’re doing it pro bono, and I suspect they are. Others are receiving monies from who knows where, and I’d be curious to have them explain that.
AMY GOODMAN: That’s Charles Stimson, the deputy assistant secretary of defense. Clive Stafford Smith?
CLIVE STAFFORD SMITH: Well, ex-, I’m glad to say. He lost his job over that, and that’s right. But, you know, there are many things that are going on on those lines. I walked in to see one of my clients one day in Guantánamo, and he said, "You’re Jewish, aren’t you?" And it turns out that the prisoners were being told that we, the lawyers, were Jewish. You know, the next time I go see another client, and he says, "I’ve been told by my interrogators that you, Clive, like to have sex with men." You know, and they do these things to try to play on the prejudices of prisoners, who are very conservative, some of them down there, to try to get them not to work with lawyers. You know, that stuff is just un-American. It’s ridiculous, isn’t it?
AMY GOODMAN: Tell us about another one of your clients.
CLIVE STAFFORD SMITH: Oh, there are so many. Where do you start? I mean, the one thing that gets me, and there’s quite a lot in the book about this, is the torture issue. Benyam Mohammed, for example — when I went to law school here in New York, it never occurred to me that I was going to sit down with one of my clients and talk to him about how he had been tortured by or at the behest of the United States. Benyam was taken to Morocco in a CIA plane by a bunch of CIA people, where they took a razor blade to his penis. And they did all sorts of other unspeakable things to him. And I spent three days going through this with him. It was just grueling. It was grueling for me, but, of course, I’m just a bystander. It’s nothing compared to what he was going through. That’s been horrific.
JUAN GONZÁLEZ: And the attitude of the military lawyers, many of whom have obviously rebelled about — over the whole system, even of the military commissions. The conversations you’ve had with some of them about what they’re being made to do?
CLIVE STAFFORD SMITH: You know, I entered all of this, the military commissions, with my prejudices totally intact about military lawyers, and I thought, "Oh, my goodness." They have been fantastic. And I’m working with Colonel Yvonne Bradley on one of the cases. And, you know, the difference, when I’m doing something in court, they can threaten me with contempt, but the judge, the colonel in our case, didn’t just threaten Yvonne with contempt, he said that if she didn’t do what he was ordering her to do, that was a criminal offense and she was going to jail. And so, I was advising her to take the Fifth Amendment. They’ve been very courageous and, I think, have stood up for the real principles of the United States.
AMY GOODMAN: We just have a minute, but, Clive Stafford Smith, before you were representing prisoners at Guantánamo, you were representing people here in this country in the South. Can you talk about any similarities you see?
CLIVE STAFFORD SMITH: Look, I still do that, and it’s all the same. You know, when you’re dealing with someone on death row, there’s a real effort to keep the truth from the public view, so death row is often in the middle of nowhere in Mississippi or Louisiana. The prisoners on death row, of course, under the U.S. Constitution, have no constitutional right to counsel when they’re on death row. Claiming innocence is not an issue under the federal Constitution. There’s a lot of things done to not let their voice be heard.
But then you compare it to the people in Guantánamo, who, you have to remember, every single prisoner in Guantánamo faces a potential death sentence. And they’re being held in a prison that’s even further away, where the Bush administration says they’re the worst of the worst people in the world and they shouldn’t be allowed lawyers at all. And so, that was what really pissed me off about this, and I felt this was just an extension of what we do on death row.
AMY GOODMAN: Do you think Guantánamo will be closed?
CLIVE STAFFORD SMITH: Oh, no doubt about it. I mean, you know, burning witches at the stake doesn’t go down in the history books as a great idea, and doing what we’re doing in Guantánamo won’t either.
AMY GOODMAN: Clive Stafford Smith, thanks so much for joining us. His book is Eight O’Clock Ferry to the Windward Side: Seeking Justice in Guantanamo Bay.