In the middle of our email interview, I asked Falkoff a blunt question. I might as well get it out of the way now, since those suspicious of his efforts aren’t likely to give him or the men he represents a fair hearing until it’s been addressed: “What do you say to those who argue that some of the prisonersthe hardcore cases, assuming there really are somemight want to kill you simply for being an American?”
Of course, he’s already been asked much blunter variations of that question. (“Are you the attorney that is defending one of those terrorist scumbags at GITMO? I need to ask you this: HOW do you sleep at night defending a scumbag like that [sic] wants both you and I to die a painful death? Have you been ostracized by your peers? Do you feel like a traitor? Just curious …”)
Falkoff’s response comes crackling back through the ether.
“My clients are not members of Al Qaeda! They don’t want to kill me or you or any other American! If there are Al Qaeda operatives in Guantánamo, then I want them to be put on trial, convicted, sentenced, and thrown into prison, of course. But we can’t just let Pakistani police officers pick up a random group of Arabs at the border, hand them over to U.S. troops, and then have the detainees tossed into prison for the rest of their lives without ever being charged with anything.”
That, in a nutshell, is what drives him.
On June 28, 2004, after more than two years of legal wrangling, the U.S. Supreme Court ruled that the Guantánamo detainees had the right to file habeas corpus petitions in federal courtin other words, to challenge the legality of their detention. Falkoff, who once served a stint as the habeas corpus Special Master in a federal court in Brooklyn, immediately called the Center for Constitutional Rights (CCR) and asked if it needed volunteer attorneys to help out with the habeas hearings that would inevitably follow. The answer was an emphatic Yes. Falkoff agreed to take on 13 of the Yemenis, a number that grew to 17. He was, and is, working on a pro bono basis, and any profits from the book will go to the CCR.
Falkoff is not alone, of course. More than 250 lawyers and law professors from around the country, calling themselves the Guantánamo Bay Bar Association, have volunteered their time and energies to righting what they see as a grave injustice. The work has been grueling, time-consuming, and frustrating. In order to spend a total of less than 20 hours with his clients, Falkoff had to take five full days away from work. Since all of his clients speak Arabic, he had to bring along (and pay) an interpreter. He had to leave all his notes of his conversations with his clients behind, and could review them only at a secure federal facility in suburban Washington.
That’s nothing compared to the difficulties he first encountered, which included the fact that he didn’t even know who his clients were, since the military had kept their identities secret for three years. In his journal, he wrote:
Falkoff describes himself as a “left-of-center kind of lawyer,” but having worked in the courts and associated with a goodly number of prosecutors, he says that his “natural inclination is not to disbelieve government agents when they tell me something.
“Here, we had the military telling us that the detainees at Gitmo were highly trained Al Qaeda operatives,” he adds. “Was it safe to leave my pen on the table? Were my clients evil geniuses? Were they all Muslim variations on Hannibal Lecter?”
Far from it, he concluded: “My clients are overwhelmingly young, polite, self-effacing men. It only takes sitting down with these men for a few hours to get a sense of who they really are.” Some were in Afghanistan as aid workers, he says; some as teachers. Others were doing missionary or charitable work. A couple had gone there long before 9/11 to work with the Taliban with the idea of building a model Islamic society.
“You can consider those men naïve or disagree with their choices, but they certainly did not go to Afghanistan with any thoughts of harming the U.S.,” he says. “I’m not saying that there are no Al Qaeda operatives at Guantánamo, but I will tell you that the great majority of the men at Gitmo are innocent of all wrongdoing.”
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©2007 The Pennsylvania Gazette
Last modified 11/09/07