Frank Goldsmith practices law in Marion, North Carolina, with the firm Goldsmith, Goldsmith & Dews, P.A. He is former State President and Legal Committee Chair for the NC ACLU, and continues to serve as a cooperating attorney and board member of the WNC ACLU. He is a member of Chapter 099 of Veterans for Peace.
War Crimes Times editor, Clare Hanrahan met with Frank Goldsmith on December 1, 2009.
WCT: At a recent meeting of Western North Carolina Stop Torture Now! Committee in Asheville, you stated: “We have not seen any discernable difference between this administration and Bush—despite campaign rhetoric, zero difference.” There is “No discernable difference?” Do you think Obama will close Guantanamo as he promised?
FG: I’m not sure there is a discernable difference, though [Obama] did set up the Inter-agency Review Task Force that has cleared for release some [Guantanamo detainees]. I’m not sure that’s a big difference because Bush has released far more than Obama has without the Task Force. As to whether he should close Guantanamo, that’s not really the point, in my opinion, unless he closes any facility where we purport to detain people indefinitely without charge. That’s just un-American and illegal under the Geneva Conventions.
WCT: So efforts to close Guantanamo need to be part of a larger effort?
FG: I think a lot of people tend to think that closing Guantanamo is somehow the answer to the problem—that it is just an inherently bad place, and if you close it all will be solved. But if you close it, and simply send the men who are there to some other prison, somewhere in the world, either here in the U.S. or Bagram [Afghanistan], or some other place, nothing has changed; In fact I think it has worsened for them. Guantanamo is not the absolutely worst prison one can be in. I have been in a lot of prisons and I have certainly seen some that were a lot worse than Guantanamo. Guantanamo is a symbol. It stands for a place where we have detained people and held them for years without any charges, and in most cases without any evidence. And that is what has to be stopped. … If you simply close that base in Cuba you haven’t solved anything, unless you take care of the fundamental problem of our abuse of the power to detain people.
WCT: Isn’t that similar to efforts to close the U.S. Army School of the Americas [WHINSEC]? SOA is such a potent symbol of the abuses of U.S. Foreign policy in Latin America that the people clamor for it to be shut down. The torture training that occurred there may not continue at the same level as in the past, and decades of public scrutiny forced the Army to change the name and to offer a few courses in human rights to try and put a friendly face on the place. Yet the SOA is a symbol of horrific abuses of military power.
FG: That’s a very good analogy. The same thing, I think. The overt torture that was going on in Guantanamo—the waterboarding and everything—has long since ceased, probably since 2003, when there was some light shed on those “enhanced interrogation techniques.” There are still some very unpleasant things that go on down there, I think, but not as extreme as people think when they hear the word torture.
WCT: How many Guantanamo prisoners have you represented?
FG: We’ve had five altogether. …For the two we have left, who are still there, we have filed habeas corpus petitions in federal court in the District of Colombia.
WCT: Currently you represent two Afghan men held since 2002 and 2003 at Guantanamo—Sharifullah and Khairullah Khairkhwa. How did these men come under U.S. custody?
FG: I should preface this discussion about specific clients by saying there is a very restrictive and onerous Protective Order entered by the Federal District Court in D.C. You have to agree when representing [Guantanamo detainees] that you will abide by this Protective Order. It provides that all of the information, other than what is in the public record about the men, is classified and can only be reviewed at what’s called the Secure Facility just outside of Washington, D.C. in Crystal City. That’s where all of the attorneys, no matter where they are in the country, have to come to work on their cases. We are restricted from revealing, even to our clients, anything that is classified. For example, we can’t tell our clients what evidence the government has on them, if they have anything at all. You can imagine how difficult that makes it to represent them. Anything that our clients tell us in Guantanamo is classified as well, so we can’t reveal that, not only to anybody else, but the government actually seizes our notes that we take from our interviews and submits them to what’s called a Privilege Review Team. And if we want to have those notes sent to us they have to undergo a declassification process. It’s really a Kafkaesque world in a lot of ways. For that reason, I have to be careful about what I say in any kind of public forum, or private forum for that matter, about the specific allegations about these men. I can tell you what is publicly known in Sharifullah’s case. He was a member of the Afghan National Army. In fact, he had returned from his family’s exile in Pakistan. They left because of disgust with the Taliban. He and his brother came back to fight the Taliban, and did so. After the fall of Taliban in 2002, [Sharifullah] and his brother both joined the Afghan army. He was at a base in Jalalabad visiting his brother when he was arrested and accused of participating in a plot to plant IEDs, improvised explosive devices, which he said he did not do. He steadfastly denied his guilt.
WCT: He was arrested by the American Army?
FG: He was arrested by the Special Forces, working with some elements of the Afghan Army. I will tell you that if I could reveal it all I would love to be able to do so because I don’t think the government has any evidence, any credible evidence, that Sharifullah participated in any plot to plant IEDs. I think he’s innocent. I can tell you that much. I just can’t tell you specific evidence they claim to have and what our specific rebuttal to that is.
WCT: Well, that leads to my question of who makes up this “Privilege Review Team?”
FG: It’s a military team. I don’t know who actually assigns people to it. There is supposed to be, under the Protective Order, a firewall, if you will, between the Privilege Review Team and the government prosecutors. When they read the notes to clear them, they are not supposed to turn over anything or reveal anything to the prosecutors. They say, basically, “Trust us.” But I don’t know whether that trust is well founded or not.
WCT: Is this part of the military justice system, or is it a development as a result of the so-called “war on terror”?
FG: I don’t know that its part of the war on terror. It’s part of the Protective Order scheme. It’s not really part of the standard military justice system. It’s not to be found in the Uniform Code of Military Justice, and not in the court martial system. We never had that when I was in the Army litigating courts martial. I defended a lot of people in courts martial. We didn’t have Privilege Review Teams. They didn’t have a need to—everything my client told me in the brig was confidential. Nobody got to see my notes. I got to see what the government’s evidence was. I got to show it to my client. There was none of this classification stuff.
WCT: How did you become involved as a defender of Guantanamo prisoners?
FG: The Center for Constitutional Rights in New York was recruiting attorneys to take [Guantanamo detainee] cases pro bono. My friend in Winston-Salem, attorney Hoppy (Robert M.) Elliott, signed up… At a legal conference in Asheville he asked if I would join him in representing a Guantanamo detainee. That was in 2007. He hadn’t done anything on the cases yet, so we started together. His law partner, Griff (J. Griffin) Morgan, has also joined us and is currently representing these men.
WCT: We have a friend at the Center for Constitutional Rights, the legal director Bill Quiqley, who has for many years defended human rights activists prosecuted for civil disobedience at the U.S. Army School of Americas. You’re in good hands up there.
FG: It’s a good organization.
WCT: During the Viet Nam war, you were an infantry lieutenant?
FG: I was commissioned as an infantry lieutenant in 1967, but I didn’t actually get sent to Viet Nam. I transferred into the JAG Corps after going to law school [Juris Doctor, 1970, UNC Chapel Hill]. …I was not a combat veteran of Viet Nam.
WCT: You were a scholar of international law at the Université de Montpellier in France, and them served as a captain in the U.S. Army Judge Advocate General (JAG) Corps from 1970 to 1972. How did these experiences inform your current work as a defender of civil liberties and of the rights of prisoners at Guantanamo?
FG: (Laughter) I hesitate to call myself a scholar in anything—especially international law, but I’ve always been very interested in that subject. …When I went into the Army after law school one of the duties that I was assigned was to teach recruits war crimes law. This was just after the My Lai massacre with Lt. William Calley, so as part of its efforts to put a better face on its activities, the Army began requiring recruits and their commanders to endure a lecture on the Hague and Geneva Conventions and the law of war. I was asked to teach that, and so I studied up.…The army, actually to its credit, had some very good textbooks and manuals. FM 27-10 is called the Law of Land Warfare, an Army Field Manual, it’s actually a widely respected treatise on the law of war—surprising coming from the Army, but it is.
WCT: Is it still in use?
FG: It is. The basic edition was written in 1956, that’s the one that I used and it was revised in 1976, but only very slightly. It’s still the same fundamental text.
WCT: So in teaching those recruits in the aftermath of My Lai, were they receptive? Did they take this into war with them?
FG: I don’t know that they took anything much of what I said to them into combat. My supposition was that these guys were told they had to go to this lecture; I am cynical enough to think that they were probably also told by their first sergeants and their captains, “Okay, you’ve heard that, but this is not really how we do things.” I don’t know, frankly, if that kind of lecture did a lot of good, but I did try to instill in each soldier that I taught the idea that he had the duty—not just the right, but the duty—to disobey an order to commit a war crime, an order that was illegal under the judgment at Nuremberg. I wanted to be sure that everybody heard me say that and somewhere down the line it might stick. Somewhere a soldier may be told to do something that he would recognize was unlawful and he would refuse to do it. That was my hope.
WCT: The JAG Corps, from what I have read, has a tradition of independent military courts, grounded in the Geneva Conventions. In Alfred McCoy’s book, A Question of Torture: CIA Interrogation, from the Cold War to the War on Terror, he calls these military lawyers “the most effective bulwark of opposition to the [Bush Administration] policies of tacit torture, endless incarceration and drumhead justice.” Do you agree?
FG: I think that’s an apt observation. It also squares with what my experience was. I do think the JAG Corps is a bit of a bulwark against military excess from within the Army. I witnessed that when I defended a soldier, actually a Marine, who refused to arm an airplane off the coast of Viet Nam. His court martial was held at Camp Lejeune and I was tasked to defend him at the request of his civilian lawyer. ...We had a young Marine JAGC captain as the military law judge. There was, I think, a lot of command pressure to convict this guy, but he didn’t. He acquitted him. It’s just one example of the independence the JAGC officers have shown.
WCT: Reports show that when Alberto Gonzales and John Yoo were manipulating the legal opinions to allow torture, there were strong objections by JAGs within the military. Are JAGC officers defending Guantanamo prisoners?
FG: Specifically in Guantanamo, there are some very courageous officers out there who have been assigned to defend these detainees and who have embraced that duty wholeheartedly and enthusiastically and, I am sure, to the chagrin of their superiors. …There are certainly some career JAGC officers that tow the administration line, but there is certainly a lot of independence.
WCT: How many persons are still held at Guantanamo and how many attorneys defend them? Are most compensated?
FG: As of today’s newspaper [Dec. 1] there are something like 211 detainees left. … and hundreds of lawyers are involved. Very few are compensated. The exception would be several public defenders around the country representing detainees. They get paid for their work. Also, the Kuwaiti government, I think, felt the duty to protect their own so they hired lawyers from a prestigious firm to protect their citizens, and those lawyers get paid very well. The rest of us, by far most of the cases, the lawyers are doing it pro bono and paying their own way and paying their own expenses. Some are from very large firms, where that is not so much of a burden, and some are from very small firms, like ours, where it is.
WCT: How much longer do you anticipate these men will have to endure pre-trial detention?
FG: I am optimistic. …We had close to 800 people there at one time who the administration called the “worst of the worst.” They were all supposed to be hardened terrorists that could not be freed. Well, over 500 were freed by Bush during his regime without any court order, any process, just the realization that they made a mistake and they could send these people back.
WCT: No reparation?
FG: No. The other two avenues, other than just pure executive decision, are habeas corpus, which is what we have presently pending on both our clients, and something set up under the Obama Administration called the Inter-Agency Review Task Force, or the Guantanamo Review Task Force… composed of representatives from the DOD and DOJ and various agencies. They review each detainee’s case and decide if he can be released. We have prepared petitions to that task force for both of our clients. I am really optimistic that, at least in Sharifullah’s case, there should be a good likelihood they will let him go if they look at the evidence they have. I think that should also be the case with Khairullah Khairkhwa. He was a political official of the Taliban government, he was acting Interior Minister and governor of Herat province. He says, and this is public record, that’s all he was. He was a political official. He had no military role. I think it is clear under international law that you can’t seize and hold indefinitely non-military members of an opposition government. We haven’t done that in other wars unless they had some war crimes role. The government has to prove that Khairkhwa gave orders or somehow engaged in activities against the United States and coalition forces and that he was not simply a political official.
WCT: I recently read about Navy lawyer Lt. Cmdr. Charles Swift who took the Guantanamo case of Osama bin Laden's driver to the U.S. Supreme Court — and won. He was denied a promotion "about two weeks after" the Supreme Court sided against the White House. Are you aware of other Guantanamo defense attorneys who may have experienced sanctions?
FG: I think [the military lawyers] are a courageous bunch. I don’t think this is going to be viewed as a crowning achievement in their military careers by the military. I wouldn’t be surprised if they perhaps suffer some repercussions. There is a Col. Stephen Abramson who sat on a number of Combat Status Review tribunals. He gave an affidavit of how they were ordered to do “do-overs,” if the findings were not to the [Bush] administration’s liking, if they found there was no basis for the men to be held.
WCT: They are under some pressure?
FG: Absolutely.
WCT: When the Habeas Corpus rights of Guantanamo prisoners were restored in June 2008, did this restore due process rights to these prisoners?
FG: Yes. I think habeas corpus does. It is an ancient writ …the government has the burden of proof to prove it has the right to detain people. We had to fight for each of these due process rights. We have the right to a certain amount of discovery about what the government has—which the government has fought us about. And by the way, in fact even the Obama administration continues to fight us about. For example, the right of a detainee to be able to see his own statements if they are in a classified document. The Obama administration has fought us on that but federal judges have ruled for us … But the Obama administration continues to say that we can’t tell detainees what evidence there is against them. These litigation positions have not changed from Bush to Obama.
WCT: I understand that to date 31 prisoners have successfully challenged in U.S. Courts the basis of their detention, while just eight prisoners have lost their habeas petition?
FG: That’s correct. There have been 39 cases so far who have proceeded through the habeas system to what we call merits hearings…a hearing before the judge on the merits of the case, on whether the government has a right to detain him or not. Of those 39, I think it is pretty astounding that the government has lost 31 of the 39. … Again, it’s not the “worst of the worst.” In one case, the evidence of the government was described by the federal judge as “gossamer thin.” That was the phrase he used. It’s not that the government has won resounding victories, even in the eight cases where it has been able to win the right to continue to hold these people. Its not that they’ve proven they are extremely dangerous. Some decisions by the federal judges are almost mocking of the government’s evidence.
WCT: In October 2009 President Obama signed into law the Military Commissions Act of 2009. This amended the Bush-era Military Commissions Act, called by one writer “a second-class system of justice designed to obtain quick convictions.” One sentence in the revised Act states: "Defense counsel in military commission cases, particularly in capital cases... should be fully resourced." How might this change things for you and your clients?
FG: That won’t make any difference to me, though it is a good idea to be fully resourced. [Military Commissions] are for people the government alleges have committed war crimes and are to be prosecuted for some violation of the laws of war. I don’t expect either of my clients to be charged with a war crime. Neither has been charged with any crime. They are there under the purported power of the executive to hold people indefinitely as so-called “enemy combatants.”
WCT: The so-called “unitary executive” idea?
FG: Yes. Executive authority.
WCT: The Military Commissions Act of 2009 changes the nomenclature of prisoners from “enemy combatants” to “alien unprivileged enemy belligerent.” What is that about?
FG: (Laughter) Well, that’s a complex subject. First of all, “enemy combatant” is really not a term that is used in international law. It is nowhere to be found in the Geneva Conventions or in the Army Field Manual. It’s just something Bush made up, and his cronies. I don’t care whether you create a synonym for that or not. …There is a term “unprivileged combatant.” Maybe this is an effort to bring the thinking a little closer to the mainstream of international law. …a combatant is somebody under the Convention who has the privilege of engaging in warfare. So if that person is captured they are to be treated as a POW, as a member of the military. A civilian is entitled to protection under the 4th Geneva Convention. The Bush administration’s fallacy—and I hope we don’t see this under the Obama administration—is that those people, civilians who took up arms, fell into some kind of black hole where they were not covered by any of the Geneva Conventions and therefore we didn’t have to give them any of the rights afforded to either POWs or civilian detainees, or anybody else under the Geneva Conventions. It is absolutely clear that to the extent these Guantanamo detainees are covered by the Geneva Conventions, we have violated their rights. [These rights are] too numerous to go through now, but they have the right, first of all, have always had the right under the Conventions, for a determination of status, whether they are properly a POW or properly a civilian.
WCT: So just by naming a group of people “enemy combatants,” a made-up term, we denied their rights, and now this new synonym, “alien unprivileged enemy belligerent,” aren’t we creating a two-tiered system of justice and codifying the second-class status of so-called aliens?
FG: We can codify it all we want but that is not going to alter the fact that the Geneva Conventions still apply.
WCT: What actions can be taken by U.S. citizens to compel our government to uphold American and international standards and the rule of law?
FG: I think we need to continue to petition our Congress and representatives to not yield to the hysteria. We need to give them some support, for example, that there would be no reason to fear relocating people to the U.S. if Guantanamo is closed. I would advocate that we abide by the rule of law…also I think there is room for advocacy to prosecute people for war crimes, if war crimes have been committed. And I think they have.
WCT: Yes, they have. The U.N. Convention against Torture, ratified by the U.S., prohibits the deportation of any person to a nation where he or she might face torture. U.S. criminal laws make it a felony punishable by up to twenty years in prison for any U.S. official to conspire to torture a person abroad. Do you anticipate that those responsible will be held accountable? People like John Yoo, Alberto Gonzales…
FG: Jay Bybee— there are a number of them—William Haynes. Do I anticipate it? No. Do I think it would be justified? Yeah, I do.…The U.S. has a history of war crimes....I think it is simply beyond dispute that that we have engaged in torture, and we have written documentation of it, we have the purported written justification for it from the memos that you have alluded to. …It is such a gross and blatant departure from the rule of law that the people who were behind those practices should be prosecuted.
Clare Hanrahan is an Asheville, NC, author and activist, an associate member of VFP 099, a lead organizer with WRL Asheville Chapter, and a contributing editor to the War Crimes Times. Contact Clare at wrlasheville@gmail.com.
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