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Northeast Ohio-Based Federal Public Defender Carlos Warner Works for Change at Guantanamo Bay

Shut it down

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News of Guantanamo Bay and its prisoner population reaches the cable news airwaves in fits and bursts, always setting the tone of the place against a drawn-out war and two overzealous administrations that have never made clear the intent of the place. Federal public defender Carlos Warner, a Cleveland guy who now lives in Summit County, helps represent more than a dozen men doing time at Gitmo. He’s here to share how important it is that we start moving on closing the place.

You did a reddit AMA on this topic recently. What brought that about?

One of the biggest challenges we have for Guantanamo is just keeping it in the news. It tends to be in the news, but it goes to the background and the cycle is so quick. Like I said there, one of my obligations is to try to keep the issue out front and to try to educate. That’s the only way that we can make any change down there, is by having the average citizen know who is down there and why they’re down there. They’re not terrorists. I got a lot of feedback. I guess the reddit community is fairly liberal, but I wasn’t sure.

The news cycle thing is very true. In 2009, Obama signed the order to close Guantanamo, and then?

He ran into things he never thought he’d run into. He really had to make political decisions about what was valuable and what wasn’t valuable at the time -- it was all about the Affordable Care Act then.

So, to pose as weirdly broad a question as possible, how does Guantanamo work and why hasn’t there been a change in those policies?

They opened Guantanamo -- and when I say “they,” it was the neocons in our government, like Dick Cheney, Wolfowitz -- they opened it up with the purpose of holding people someplace where no country could touch them. That’s why they picked the Caribbean. They fought that for years. It was just a few years ago that we got access to the men at Guantanamo. Once we started to get access, that’s when we started to learn about them. We did our best to get the stories out about them. They said that you can have access, but you can’t tell anybody about it. You can’t talk about the allegations. You can’t really investigate any of the allegations. We had to get really creative about how to get the men’s stories out. For a long time, especially in 2006, it was a mixed bag. But George W. Bush actually released the dangerous people. They were mainly Saudi people. These are people who returned to the battlefield. Then, around 2007 and 2008, which is when I got involved, were really the poor people who had no representation or governments talking to then. Even though the Supreme Court of the United States said, yes, you can be involved, they can have attorneys, no one could really do it because it costs tens of thousands of dollars to represent them -- just the flying, the investigation that we can do, the amount of time involved. That’s how federal defenders got involved in the cases. There was really a void. Our office ended up taking five. Because we were doing a good job, we ended up with about 13. Now -- we still have 13, because even if you’re released -- but we have eight men down there.

The idea, of course, is that the worst of the worst are down there. That idea has persisted. When you say that these men are “the poor people,” what do you mean by that? They’re innocent. Let’s be clear about that. They’re not only not the worst of the worst, they’re innocent. They are people who -- let’s say they’re looking for an Eric Sandy and they got the wrong Eric Sandy. But you’re a poor Yemeni Eric Sandy, so you’re stuck there for 13 years while we’re trying to sort it out. We can’t get you out of there. We can’t send you back to Yemen, because there’s a civil war there. There is a mixed bag still, because you have the people in the military commission system, which is another conversation. Those guys -- they have admitted that they were part of it and they want to be executed. They happen to be at Guantanamo too, but they’re not in the general population. In the general population, the majority of men left -- both the Bush administration and the Obama administration have said that they should be released. They’re cleared for release -- the majority of them. We have a sector of about 40 individuals who are not cleared, but we have some of those people. Some of those guys have never done anything in the first place, but they’re ticked off that they’ve been held for 13 years without charge, so they would say and do things in Guantanamo. Some of the other ones, it’s unclear why they haven’t been cleared. You’ve got maybe, I’d say, under 10 hardcore guys who should be charged somewhere. You have this group of people who are being held on suspicion. They can’t be charged, they won’t be charged, but they’re being held indefinitely. Then you have this last group of people who are all cleared. Everyone agrees they should be released -- all the intelligence agencies -- but it’s hard to find them solutions. Nobody was looking for solutions for several years.

Day to day, what are their lives like? Is this like a supermax prison?

There are three different places. We represent people in all three. There’s Camp Seven, where the high-value detainees are. We have someone there, but we’re not really allowed to discuss at all what goes on there. There’s Camps Five and Six. Camp Five is like a segregation supermax. They use it for punitive purposes -- people who are not behaving. That’s solitary confinement. The majority of men are held in Camp Six, which is basically just a medium-security prison here: communal pod living. They have some electronics, they have some amenities. The military touts how wonderful this is. For a long time, in 2013, everyone was locked down because of the strike in the prison, but now the majority of men are in that kind of communal setting. In that setting it’s still impossible -- at least if you’re here you that on Jan. 14, 2017, I will be released, or whenever it is. These guys have no idea. But they try to paint it as this good place. They’ve had no family visits. The only amenities they can get are from the lawyers. They have no money to get anything. We have to provide them with whatever extras they get beyond the prison food.

You mentioned McDonald’s on reddit.

The McDonald’s -- that’s an interesting thing. This is a good example of how we’ve adapted to the system. It’s kind of Darwinism in some respects. They have these horrible hunger strikes, but the men would eat with the lawyers. They made a rule that we could bring whatever food we wanted. Most of the lawyers would go down there and they would just stop in the morning and they’d take them some McMuffins. When we started going, all I would do is, with the help of many organizations here in Cleveland, I would organize and bring these incredible feasts down there for them. The guards were used to seeing a couple McMuffins coming in, but I would bring in, you know, piles of grape leaves, wonderful pies, Afghan food. We’ve had Thanksgiving there. They have no idea what Thanksgiving is, but that’s what we would do. We became known for that. Some of the other lawyers started doing that. That really built some -- very little -- but some morale, and they’d look forward to it and make requests. When new lawyers would ask me what they shouldn’t do, I’d say you should not bring McDonald’s. The detainees realized McDonald’s sucks, and it really sucks in Guantanamo.

I can only imagine.

They have a Subway there too, but.

How often do you go down there?

For regular trips, I’ve been down there 30 times and I go as often as I can. We have other lawyers who work on cases, and they go too. One of the things that has improved in the last few years is we can have phone calls with our clients. The mail is still impossible to deal with.

Outside of just checking in on their state of being, what sort of things are you able to do?

“How do we attack getting them out,” I think you’re asking. We were assigned to do habeas corpus, which is basically a lawsuit against the president saying that the person is illegally held. Habeas corpus means “free the body.” Because he’s being illegally held he should be freed. I watched this litigation evolve in Washington, D.C. They started having these incredible legal loopholes for the government.

The first one, and probably the biggest one, was one that involved the Chinese Uighurs. They’re an ethnic Muslim Chinese population. They were fleeing China, and they were picked up and sent to Guantanamo. The government realized very early on -- 2003 -- that, wait, these guys have nothing to do with anything. They were fleeing China, and China’s like, “Please, give them back. We want the Muslims back.” They wanted to execute them. In any case, our court of appeals in Washington, D.C., said, "OK, they’re innocent, but we have no power to tell the government that they have to release them." It became a pyrrhic victory. That was the first time a lot of lawyers said, “Now, wait a minute.”

The second thing that happened was that the same D.C. circuit said that all of the government’s evidence is presumed accurate, and we have the burden to show that it’s inaccurate. That’s the complete opposite of all the jurisprudence here where the government has a burden. Not only that, but there’s a security clearance. Let’s say you’re a witness, and my client was charged with assaulting someone in a bar. They just say, your client assault a Sandy in a bar in Yemen. But they won’t tell us what bar -- I can’t talk to you, because you don’t have a security clearance -- and I can’t talk to any witnesses. I can’t even tell my client -- this is the crazy part -- that this is the allegation, because he doesn’t have security clearance. So there’s absolutely nothing you can do. And that evidence is presumed innocent. I’d like to think that our office -- and not everything agrees with this -- was one of the first offices to stand up and say, hey, this entire system we have for litigating these Guantanamo cases is bullshit. There’s just nowhere you can go with it.

So then what’s to make of this?

First of all, we’re there to communicate to the degree we can with our clients’ families. The second thing we do is a lot of work in Washington behind the scenes -- try to lobby, for lack of a better word, with other lawyers the more conservative parts of our government that are really uneducated and ignorant about Guantanamo. We tell them, this is what’s going on, and a big reason the place isn’t closed is because of the political football that Guantanamo is. We work with the administration to try to get this resolved with them. We work with foreign countries -- Saudi Arabia, Yemen, Kuwait -- to the best of our ability to try to form those solutions. To that end, we work with the State Department.

We work with the clients to tell them the things that need to be done so we can get them somewhere. We had clients, without naming names, who only wanted to go back to Yemen. Well, if you only want to go back to Yemen, then it’s going to be a long wait. That might be your ultimate goal, but maybe we can do something else. We have those conversations.

Zooming out a bit, do you have a sense of optimism?

We have to be optimists by nature. If we’re not, then it’s hard to do what we do. Just yesterday, they had hearings in Congress. Look it up on YouTube. Tom Cotton, who is a know-nothing senator from Arkansas, said that everyone in Guantanamo should rot in hell, and if they can’t rot there they should rot in Guantanamo. It’s just ignorance. When a senator says that, it really shakes your optimism.

To close Guantanamo, we know it can happen, but it would take the president spending a lot of political capital. I think at the end of his term, he’ll say, "Hey, we reduced it from 280 when we took over and we got it down to 60 and that’s the best we could do." That’s true but it’s also disingenuous. We’ve been doing this for two years. We could have been doing it for the last five, but it was not a priority of his administration. I think at the end of his term, there’s gonna be a handful of men there. I wouldn’t guess how many. That’s too bad. The legacy lives on.

All the horrible things that we’re seeing, it’s not a surprise that all of the people that ISIS is executing are wearing orange jumpsuits. That’s not an accident. That’s because ISIS uses Guantanamo to recruit hundreds and hundreds of other disenfranchised, radicalized young men. We give them that power by remaining open. I don’t think the president has the will to close it all down. I think if he was sitting with us, he’d say, "Yes, I want to do it. But there’s only so much we can do." He’d have to make incredible strides in Congress.

When was the last prisoner intake at Guantanamo?

We represent the last intake at Guantanamo. The last intake was in 2007. That was Muhammad Rahim. This is the guy who, if you look at the Internet, has written letters about LeBron James. He’s written all sorts of funny and sad letters.

Do you represent clients up here in the Northern District of Ohio or are you focused on Guantanamo?

[Guantanamo] takes up a lot of my time, but I have regular cases here in federal court. We have cases in Akron and Cleveland, Youngstown and Toledo. I grew up in Cleveland Heights. I was a state public defender until 2005. I ended up moving down to Hudson in 2003 and I’ve been with this office since 2005. True and true Clevelander suffering with the Browns. My clients know more about Cleveland and Cleveland sports and that sort of thing. I call Cleveland my tribe. Most of them come from tribal communities.

When you were approached for this work, did you have any trepidation about representing clients from Guantanamo?

There is a learning curve, but we were all learning. This is not the practice of law. When you start practicing in federal court, there’s a learning curve but there are a lot of people who can teach you. There’s really no one who can teach you about Guantanamo because this is the first thing. Now we can give some guidance, but the rules change everyday. I didn’t think that seven years later or however long it’s been I’d still be doing this. We at the federal defender’s office, when we’re assigned a case we see it to the end -- whether it’s one year or 10 years. I didn’t have any trepidation about it. I thought it was interesting. I still am shocked about how the system works. That’s a real wake-up call. I think all of us that are involved in the litigation -- not that we’re high on any sort of target list -- but I think they listen to everything we do. That’s a little different.

What sort of things should the American public be thinking about?

I think the most important thing is that Guantanamo does not house the worst of the worst -- not even close. The ones in Guantanamo are people who got caught up in a net. I could cite 100 sources. Colin Powell, when it was happening, said the majority of people in Guantanamo are innocent. Those are his words, not mine.

The other thing that is very disturbing is you have the right that all these people return to the battle. There was even talk about one of the Afghans in Qatar returning to the battle. It was the lead story on CNN forever. That was slowly debunked, and when it was debunked there wasn’t another story about it. The recidivism of the people who have left under Obama -- there’s one person who left who has been confirmed [back on the battlefield]. A lot of the people who did return to the battle were under Bush, but even those people are a relatively low number. Those are the two basic arguments for the general public. The general public, sadly, if we were to go out here on East 9th Street and just ask people, many people would think it’s closed. I deal with that kind of awareness.

I wanted to touch on last year’s Senate torture report too. What do you make of the contents and the fact that it was published?

Some of my clients were in there. I think it was a wonderful step. Sen. Feinstein has been a wonderful advocate. Really, sometimes it crosses lines. John McCain came out and said the same thing: "We need to own up to do we did and not try to cover it up." I’m not commenting on what classified information I know, but I see it being covered up for the fact of embarrassment -- not because there’s some national security secret that we have to protect. No, we don’t want the world to know what we did. When that comes out in the detail that it did, that’s great. Our country is built on transparency. I can’t tell the future, but this is going to be one of the darkest chapters in our history. When we look at what we did after 9/11 to everybody around the world, we’re going to say that was such a horrible, emotional reaction. But this is an ongoing reaction. The government obviously not only did it there, but they did it here too. That’s scary. That’s not what we’re about. It really is what these kind of radical organizations are about. They do those things. There’s no comparison to what ISIS is doing now, but it’s like an eye for an eye. There are people here in the U.S. who would say we should capture them and burn them alive. That’s how some of us think, and that’s just not what we’re about. We’re not like that. We shouldn’t be like that. It’s not about being civilized, it’s about being a leader. We’re just not a leader in this area.

So I thought it was a wonderful step. They took it from 5,000 to 500 pages. They should release the 5,000 pages to journalists. And they need to reduce that to 1,000 words and put it on Perez Hilton or TMZ or some place where everybody’s gonna read it. It’s 500 pages, and it affects my clients; I read every word of it. I was nodding my head. I don’t think anyone else did. They just watched the stories.

I read the back of that report, and in the back of the report you have the head of the CIA -- Michael Hayden -- perjuring himself, taking an oath and perjuring himself. It read like an indictment. It had Michael Hayden’s statement, and then: We know this is false, and boom boom boom. It’s right there. This is one of the things that bothers me, being a federal defender here. I see that all the time with our clients -- poor people, someone in the city of Cleveland made a mistake, they lied, they get prosecuted for perjury, they go to prison for it. But somehow if you’re the head of the CIA, it can be laid out and you’re not prosecuted for it. I would suspect I’d be prosecuted for it. But there’s definitely deferential treatment. Stuff like that is rampant throughout the report -- just the criminality of the government.

Could you point to any books or articles or something I could look into for more info on all this?

If you want a Cleveland angle here, definitely look up Muhammad Rahim. There are so many good stories on CNN. I had him on match.com. That’s so lighthearted, but at the same time he has letters that are so sad. It’s a good example of what our strategy was. He’s an interesting guy. This was a while ago, but I got to show him three movies. Two movies were pretty easy -- To Kill a Mockingbird and A Few Good Men. The third one he said, “I want you to show me a movie that captures American culture.” We talked about this forever. We ended up settling on The Big Lebowski. So we were there, and the guards were there, and they were laughing. We were sitting around and he was eating circus peanuts -- those marshmallow peanut. He was eating those and he turns to me and goes, “Do Americans actually like these?” I said no. What we figured out was that, while it was great and he can speak English, it was almost too American -- he didn’t get so many of the references. That’s a good example of what we try to do.

So many lawyers go down there and they’re like, “We’re gonna file this brief, and we’ve got that. War is over in Afghanistan, so they’ll free you.” They’ll email me about it, and we’ll talk, and I’ll say, “Look, knock yourself out, but you’re playing with a stacked system."

Another thing we do: Someone asked me what our approach is. There’s another federal defender, and he agrees with my strategy. We named it "the Dada approach to litigation," where we’re just gonna be totally ridiculous. We were doing that -- not behaving unprofessionally, but we’d make ridiculous requests. We’d get ridiculous responses. We’d see that that’s what it is: You have to poke fun at the system to make any progress. I think that we have made progress using that bizarre approach.

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