on the world: a view on human rights
Nancy Hollander is a US internationally recognised criminal defence lawyer with over 38 years of experience. Her current clients include two Guantánamo Bay prisoners and she is the lead counsel in Wikileaks’ whistleblower Chelsea Manning’s appeal case against the 35-year sentence she was given in 2013.
During a visit to London in April to highlight the case of one of her Guantánamo clients, Mohamedou Ould Slahi, I put some questions to Ms Hollander about her illustrious clients.
1) You first visited Guantánamo Bay in 2005 to meet Mohamedou Ould Slahi. What was your view of the prisoners and of the legal regime there before that? Did you think you would still be representing Guantánamo prisoners more than a decade on or that the facility would still be open?
I knew about Guantánamo but I didn’t know a great deal before 2005. We had had meetings as lawyers to decide what we should do, and there was a real debate about whether we should even be involved in this because it’s so wrong. Part of me thought I shouldn’t be involved, but these people needed lawyers so we went ahead. Then, when I got this case, I started spending a lot of time there.
I didn’t really think about how long it would take then. In Mohamedou’s case, when we won his case in 2010 we thought for a moment that it might be over, but only for a moment, because we knew the government was going to appeal, and we hoped we’d win in the court of appeals but we knew if we did it would go to the Supreme Court. It was devastating for him, devastating.
2) Your other Guantánamo client Abd Al Nashiri is currently facing trial before a military commission and potentially the death penalty. As a lawyer who has experienced these commissions, how would you describe them to the outside world?
We use the term kangaroo court for the commissions. It’s not a real court in any sense of the word. It’s not even process, so you can’t say it’s due process because there is no process, it changes. One of the judges even said at one point that it’s very difficult because we never know what’s going to change.
It’s not American justice. I’ve always believed that the US had a fundamentally good justice system. We have jury trials, we have our constitution, we have a right to confrontation, people have a right to a speedy trial but none of that applies. It’s hard to explain to anyone because it makes no sense. It’s not military justice either. We have a very robust, good military justice system, and that’s not what this is either.
The court is theoretically not supposed to use any of the evidence from torture. I don’t know what they will do but now that some of the torture is out in the open I think it’s going to make a difference and I think that if we were to ever get to a trial that the military members would be horrified because there are many of them who really believe, as Colonel Couch did in Mohamedou’s case, that they are obligated to not torture people and they believe that fully, and I think they would be very distraught to hear what happened to Al-Nashiri, they really would.
In Nashiri, I don’t think we’ve had a pre-trial hearing for a year. The whole case has just stopped. The 9/11 cases have stopped. I think Al-Iraqi has stopped. They’re just not going anywhere and it’s tragic.
3) You recently described Mohamedou Ould Slahi as in many ways having become “the poster child of the U.S. government’s unlawful indefinite detention regime”. Can you elaborate on that and the impact 14 years of indefinite detention has had on him?
Because he’s written his book, because he’s one of the few people in Guantánamo that we hear from, he’s the only still imprisoned person who’s written and of the other people who’ve written books they’ve written them with ghost writers. They’ve talked about their experience but they didn’t talk about it while it was happening. He wrote this book in 2005. It was right after he had been tortured and he’s so good at expressing his feelings and yet he’s so able to look beyond himself which I think is an unusual ability for anyone. He’s got an empathy and compassion, even for the people who harmed him, to try to understand where they’re coming from. He is able to express to the world something about Guantánamo that’s not just torture or “I hate Americans”, because that’s not what this book is about, the book describes what happened to him, but he genuinely doesn’t hate America or Americans, or even the people who tortured him. He tries to understand why people do the things that they do. That’s a quality that not many of us have.
4) Mohamedou Ould Slahi’s critically acclaimed Guantánamo Diary has become a best seller and is currently slated to be turned into a film produced by Benedict Cumberbatch. Nonetheless it is still redacted and was only published after many years. Did you expect it to be so successful or make such an impact? Mohamedou is not allowed a copy of his own book. How does he feel about its success?
No I did not expect it to be as successful as it’s been. I’m thrilled that this book has been so successful. We wondered if anyone would read it. We had no idea and I remember when it first came out and it kept going up and then we were on the New York Times bestsellers’ list how excited the group was and it’s a tribute to him. We’ve had a wonderful agent. Jamie Byng, of course, has been wonderful, our publishers have been really wonderful in promoting it as well as the public and the press but it’s really a tribute to him that so many people have wanted to read this book in so many languages; I think we now have 23. We have it all over the world and we have some more that are still in the process of translation.
It was a long process. For about 4 years, my co-counsel Theresa Duncan and I argued in court that this book should come out and the government was violating its own protective order by not reviewing and then releasing it. They said the only way they would review it would be if we gave up the attorney-client privilege because all that time nobody in the government had ever seen it because it came to us as letters to his lawyers. Finally, we abandoned the litigation because we were losing and we wanted the book out so we sent it off for review, it took two years and finally came back to us as redacted version.
Mohamedou’s grateful and he’s happy, but he’s still there. I don’t care how successful this book is or the movie, I just want him out. That’s what it’s always been about – let’s just get him out.
5) Mohamedou Ould Slahi will appear before the Periodic Review Board in June 2016. This administrative board can clear him for release. It was in fact supposed to have reviewed all such cases by the end of 2011. How optimistic are you about the outcome of this review? What are your thoughts on the review system?
I am optimistic, maybe I have to be, but there’s no reason he shouldn’t win. The system itself is completely arbitrary but we’re going to work very hard, and then we can still have our habeas case. It’s just that that’s years of litigation. This is quicker. That’s why we always wanted to go in this direction.
6) You are also representing Wikileaks whistleblower Chelsea Manning in her appeal against the 35-year sentence she was given for espionage and theft of US government property, among others. What stage is the appeal at and what are the main issues to be raised?
Chelsea’s brief is going to be filed on May 18. We’re filing a brief in the first appellate court, a court of appeals for the army. We have some amicus briefs that will be filed and then the government will file the response and we give a reply, then there will be an oral hearing. If we lose or the government loses, either side can appeal to the Court of Appeals for the Armed Forces, then to the Supreme Court.
The first and most important brief will be filed on May 18. The Espionage Act will be a part of it, we have issues of denial of a speedy trial, pre-trial confinement, sentence appropriateness, so we have a lot of really good issues in that case and we’re really hopeful.
7) Why does Manning’s case still matter?
It matters because we have a situation not just in the US – here in Britain too – where we have tremendous secrecy in government, more than we’ve ever had, a lack of transparency more than we’ve ever had, the Obama administration is the least transparent we’ve ever had and we have a situation where there is more surveillance than ever, so we are in a situation where the public knows much less about what the government’s doing than it has in the past and government has much more power to know what individuals are doing and that’s a serious problem for the future of democracy. We also have the problem that the law in the US does not allow for the possibility of real national security disclosures, like Chelsea’s, so there’s no way to get the information out, so you have secrecy, you have surveillance and no way for the public to know about it and that’s why Manning’s case is so important, and so is Snowden’s case, because they ran the risk of trying to change it this and look what happened.
8) Why did you choose to represent Guantánamo prisoners and Chelsea Manning?
I’m a criminal defence lawyer; this is what I do. I defend the constitution of my country. I believe it’s a good constitution and it’s worth defending, and that’s my job. My job is to stand between an individual, a citizen or a non-citizen, an accused person, and the power of the government. The only time that an individual is faced with being attacked by your own government really is when you’re a defendant and that person has the right to have someone stand between them and the power of the government. That’s my job and that’s what I do. These particular cases are my most important work because if we can’t provide justice to these people we can’t provide justice to anyone.
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This video, Collateral Murder, is one of the reasons Chelsea Manning is currently serving a 35-year sentence: