Eldridge & Co.; Jeffrey Fogel, Center For Congressional Rights

Hello, I'm Ronnie Elbridge. Welcome to Eldridge and Company. Jeff Fogel, a civil rights and civil liberties lawyer, and now the legal director of the Center for Constitutional Rights, as my guest. The Center is a nonprofit organization that, as it says in its mission statement, is committed to the creative use of law as a positive force for social change. That takes a lot of different forms, doesn't it? It certainly does. Tell us. It could be litigation. Yes. It could be public education work, media work, we write books, we write pamphlets, we do op-ed pieces,

we do speaking engagements, but the bottom line is the litigation. And who is we? How many people are there at the Center? We have seven full-time lawyers on staff, and a backup staff. We have an administrative staff, a press and communications person, a public outreach person, a development staff, naturally, an administrative director, legal workers, to support the lawyers as well. And of course, we have volunteer lawyers who work with us. And that becomes a major part of the organization, doesn't it? Well, there's many cases that we do that we could not do, but for the assistance of private lawyers. And those are private lawyers that are associated with large firms, or small firms, or independent lawyers, or. Well, you've named three of the possibilities and there are others as well. We have, for example, a lawyer who's retired and who's working there full-time. We did a case against the Street Crimes Unit, the New York City Police Department, and we were joined in that effort by Devivoy's Blipton, one of the largest firms in New York that was able to put lawyers on it

and come up with the money necessary to litigate that case. So it is all of those manifestations of getting things done, whatever it takes. And then the range of issues that you could have opted. It's very broad. It is. It's quite a range of issues. And it ranges, as you know, from the case we had in front of a successful case in front of the Supreme Court, which we're very proud of in Guantanamo, which is still, there's probably more work now after we won than there was before we won. That's the very basic. That was the first case. This gentleman was just simply established that there was jurisdiction in the United States court to determine whether the people in Guantanamo were being lawfully detained. What were you calling that? You were calling it a no-law zone? That's what we referred to it as a no-law zone, which was a very apt description, really, of what the case was about. It's a take-off on drug-free zones or whatever. Well, it's a take-off. Or it means it's an area that belongs to the United States. Is that, well, at least, or whatever it is. I don't know what the arrangement is in Cuba for Guantanamo. But it's an area under United States jurisdiction that does not observe any laws.

Well, no, I think the argument, the government's position was that there was no law that was applicable to the detainees because they were being held in a location which was not part of the sovereign part of the United States. Even that aspect was ruled to the contrary by the Supreme Court when they looked at the nature of what it is that we do in Guantanamo. We have a lease in perpetuity that we obtained as a result, ultimately, of the Spanish-American War and, of coercion against the Cuban government who'd like it back, frankly. But we exercised full jurisdiction there. And that was right. And so these are people, the prisoners that we've brought over from Iraq or Afghanistan. And other places as well, there are people who don't pick up in Zambia, in Gambia, in Pakistan, in Afghanistan, in Bosnia, there are people there from, this is what we know about. And there are a significant number of people we don't know about as well. There's no list that's available. Oh, no, no, there's no list whatsoever. And they refuse to give out any information. So you're the ones who went to court with that.

And what was the basis of the suit that they deserved? Well, it was a traditional rid of habeas corpus, which is a procedural form that goes back several hundred years in Great Britain to test the challenge arbitrary detention by the executive branch. And that was the mechanism that we used to get into court. And the Supreme Court recognized there was jurisdiction to consider the lawfulness of their detention. So now where are we in this process? Well, it's a very difficult process because the government isn't giving an inch. They seem to be acting as if the Supreme Court had never decided this case. They claim that the detainees have no rights, not even the right to a lawyer. And so there are lawyers that are the first lawyer, the first lawyer for any of these detainees just went down there two days ago. And the government has been incredibly difficult. They've taken the position. There is no right to a lawyer. But out of their own largesse, they're going to allow the lawyers to go down there. We're in for a very bitter battle with the government over this issue, assuming that the same government as in power come the new calendar year. It is going to be a very bitter battle.

And it'll be a long and protracted one. This is not a non-biased program, what you know that? They're explaining it to me because my understanding is they're now some kind of military tribe. They're tribunals going to be. There are three things that the government's doing in Guantanamo is that you could call quasi-judicial. One is military commissions. Now, these are designed essentially to prosecute people for what they claim to be criminal acts. Now, the people that have been there three years and only the four people have been charged so far. Now, these commissions are going ahead. And those people are entitled to lawyers. They're being represented by members of the Judge Advocate Generals Corps, who are outraged about this procedure, and with whom we have been working very closely to bring challenges to these tribunals. So that's one aspect. There is the enemy combat status review tribunals, which was the government's response to the decision of the Supreme Court. And it's interesting. Of course, the president has declared

that everybody in Guantanamo is an enemy combatant. And the Department of Defense says that this determination had been made at various levels of the Department of Defense. Now, the Supreme Court renders their decision and the Department of Defense issues in order saying directed to the enemy combatants, we're going to have tribunals to determine whether you're an enemy combatant, which is quite extraordinary having already declared them enemy combatants. They're now going to have tribunals to determine whether they're enemy combatants. And those are only simply to determine whether the people fit a definition, which is frankly not in accord with the definition of the Supreme Court used. And it's outrageous what's going on there. They're given personal representatives as what they call them from the military, but there's no confidentiality. Anything that D.T.A.N.E. says that the personal representative will be told to the tribunal. They have no right to call witnesses. They have no right really to challenge most of the government's evidence, which is considered in secret and classified, and they're not even allowed to see that evidence. And I just saw in one instance where fortunately there was a reporter present, a detainee said that his defense was

that he was coerced into joining a Taliban. He was taken from his home, he was a cook, and he was kept at gunpoint. And the tribunal said, that's not for us to consider why you were in the Taliban, just if you were in the Taliban. So that's not a defense that you will coerce to be there. But these are obviously a sham proceedings in order to justify maintaining the people there. And to try to narrow the scope of what the federal courts will review in this process. And then there's another proceeding that's going on there, which is called the review tribunals. These as a tribunal to determine on a yearly basis whether or not the quote enemy combatants are still a security risk to the United States or can now be released. So none of these is working well. The government's making it up as they go along. They're doing it in response to the Supreme Court or public relations disaster that they've had in the world. And none of them fit anybody's notion of what due process would be, including the military itself.

This all comes from the Justice Department. No, it comes from two sources really. And remember that when they opened Guantanamo, the President of the United States declared that the Geneva Convention did not apply. And that was the first problem. And this was over, he overruled the wishes of the Joint Chiefs of Staff, who believe in the Geneva Convention and believe that it must be applied to foreign combatants in order also to protect American combatants. Colin Powell argued strenuously that the Geneva Convention applied. Now who was it argued against it? It was the ideologues in the Justice Department led by one of our favorite characters in American history John Ashcroft. It was the civilian lawyers in the Department of Defense responding to rumsfeld and wolf of it and purl and all of our other favorite ideologues in the Department of Defense. And it was Gonzalez, the President's Council within the White House. So you have these ideological lawyers working for ideological civilians overruling the military.

It's extraordinary, Ronnie, because we're so much safer these days with the military, who supposedly are being protected from by the civilians there. We really need the military to protect us from the civilians who are supposed to be protecting us from the military. That's the truth. I have so much more respect for the military now as a result of seeing this process. Then I had even before now. It's extraordinary, but it's also extraordinary how ideological this administration is and all the lawyers who have been placed into positions of power there. So I'm glad you're on before this election the way that something real problems. So now what's the next step? You want to go on? Well, we're fighting out. You're going back into court. Well, we're in court all the time in these cases. We have said the clock in court all the time. Where do you actually go? The District Court of Columbia and the District of Columbia where all these cases are. And we're fighting out issues about access to our clients being able to see them. The conditions under which we can see them. The Department of Defense is asserting that in most instances they want to tape record and audio record

every conversation with a client. They want, they will not allow you to show anything to a client unless they've seen it first. And if it's in a foreign language, because most of the people that don't speak English, it must be sent to the government four weeks in advance. But you know the problems they're having with translators. It's not only a dearth of translators, it's the translators they have don't know what they're doing. So the government's insisting on a month to translate a retainer agreement, for example. So we're having a myriad of problems with the government here and fighting very hard about it. But we've got to get down and see the clients, find out the facts, because we've never met any of our clients before. Then we need to proceed back in federal district court to challenge their detention once we know the facts and what we can call as witnesses. From, we get figures all the time on fatalities and we don't get that many on the injured and of our armed forces in Iraq. Do we have we ever heard of personnel, military personnel being held by somebody there? Well, we did have an instance of one,

I think he was of Lebanese origin. Right, and then he was released. Right, and they've dropped all those charges, where they left such a cloud of suspicion over him. And they're still this. But I wondered because I mean, is there, there isn't even a government that you can say would be observing the Geneva Convention in Iraq. In Iraq? Well, the United States has said that we believe that the Geneva Convention applies there, which makes all of the abuses that I've been grave in other places, even more extraordinary, even more extraordinary. So you mentioned street crimes. Was that following the Diallo thing? And this has to do with racial profiling? It has to do with racial profiles. Is that specific to New York or is that yes? But as you know, they disbanded the street crime in the course of the litigation, and we ended up with a very good settlement for the people of New York, in which every police officer who stops a citizen on the street, or frisk them, must file a report as to the reasons why they did so and a description of the person. And we have a procedure in place in this settlement where we have four years to monitor what the police are doing. And so we're handed over to us,

or all of those forms, with names redacted but all of those forms. And you actually have people that are monitoring it. Well, we're trying to. We also had an agreement there that we're gonna have joint meetings before communities all over the city in order to explain what people's rights in the street. We've just started that process recently. It's a very interesting thing because people are very confused about racial profiling. If somebody is stopped and it's a person with blue eyes and white skin and blonde hair, can they stop people who are blue-eyed, white skin and blonde hair, without any other reason to stop them? No, you couldn't stop somebody on that base. In order to stop somebody on the street, the law has been the same now for about 30 years, you must have a reasonable suspicion that that person based on individualized facts has engaged in or is about to engage in criminal activity. And even then, you can only stop them to question them. And you can only search them if there is yet further articulable suspicion that they are armed and dangerous to you. Now, that's violated wholesale, right?

But we are hopeful that getting the information out, requiring the police to fill out these forms, and the additional training that's going on in the academy will make some inroads. It was really frightening because I was in the city council at that time and the deallocation and then all the questions of racial profiling and we did have hearings around Manhattan and it was shocking. I mean, people with their kids being stopped and if they had a pair of gloves in their pocket, somebody would say it was a gun or... Well, look at the facts of the allo case. The order of the guy to identify himself, what is the normal person you take out a wallet to identify yourself, then they claim it's a gun. He couldn't have won. He had to lose in that setting. Now, your most recent thing that garnered a lot of attention was the fact that you went on behalf of peace and justice into court in order to have the city allow a rally in Central Park, right? And it was very interesting. I mean, you did it too late, which is all the different politics and machinations that they had in there.

But that's a very important premise, isn't it? No, how are we ever gonna go back to do that again, to try it, to open up the park? And of course, in the course of that litigation, I learned an awful lot about the park. It's history and what's happened in recent years. So let's discuss that a little bit. It's interesting. It's very interesting. Because I was there at the time the Parks Department signed a contract with a conservancy. Right. And there were a few of us in the council and I can't really remember exactly what happened, but there were a few of us who ejected strenuously to that. Because the conservancy is a private organization. And if I remember correctly, you couldn't even go to their board meetings that were an open and anything they do is not open to public scrutiny or any accountability, right? And they have the contract to manage the park. Yeah. And they have most of the employees that work in the park. Precisely. Now, of course, they were responsible for coming up with a lot of money as you would expect from rich people in order to do some work in the park. They call it restoration, but it's not really restoration. Because what they've done was never there before. It's a renovation and an alteration of the park. And in doing so, though, I don't think anybody knew,

even as I look back historically at some of the newspaper articles and so on, that they were going to be concluding people from engaging in large-scale rallies in the park. In fact, there was discussion about where the stage would be at the great lawn, even in the course of these alterations of the park. And of course, they did an extraordinary job. And I learned a lot about the history of how the great lawn came to be part of the park. And Robert Moses took some of the rubbish from the Empire State Building, filled in an old reservoir. That's why they were problems. He didn't do such a great job, in other words, Robert Moses. But in any event, they altered the shape of the great lawn. They've made it into an oval. They've taken over the North Meadow, which they did another project on, which is even larger than the great lawn, and precluded any kind of activity in the North Meadow. So they came up with, and they precluded, though, how is that stated, were they just? Well, if that's the issue that came out in court, it's not stated anywhere. There is no way an ordinary citizen would know this. Now, I spent that a whole day walking around the park before we litigated this case,

so I had a good feel for it as well. And there are signs up at the North Meadow, for example, that encourage people to use it for organized sports activities and for passive recreation. And then there's a note about how you get a permit. So while you might suggest that it's being used for those other purposes, once you put on that sign that here's how you get a permit, you think that, well, that's available like any other place in the park. And of course, these are the locations where these great events have taken place. And I only went back 100 years, starting in 1914 or so with a huge demo on behalf of women's suffragette movement in the park. But in the succeeding years, whether it was ascending off the troops in World War I and World War II, a citizenship rally that were a million people attended, that the President Truman spoke at, the anti-war rallies and beans of the 60s, and of the 70s, the incredible concerts that 750,000 people who were on the great lawn to watch Paul Simon or their own mere 250,000 who were there to watch Simon and Garfunkel,

the mere 250,000 that were on the North Meadow to watch Garth Brooks not that long ago. All of this is the history of the park. And I think most of us recognize, remember when they redid the sheet meadow, that that was gonna be used for passive recreation. And it had previously been used for a variety of other purposes. But as long as there were avenues open in the park, people said, well, okay, take the sheet meadow, fence it off and use it for passive activity. There's all of these other places. But slowly, we're losing all of those places. According to the Parks Department, we've lost the North Meadow. The management plan that was put in place, and this really was from the Conservancy, post restoration, was, and this was not available anywhere until we got to court. Four events are allowed on the great lawn a year. Two performances by the Philharmonic, two performances by the Met, and possibly one or two other events. Now, the only event they held there was in 2003 was the Garth Brooks concert. And that was paid for Lockstock and Barrel

by AOL Time Warner. The city got a few million dollars for educational purposes. They got a bond for the use of it. And AOL Time Warner, plastered the subway system with advertising about how wonderful they were. They were wonderful. And they were wonderful. Correct. So they held the concert. The park's department now says, oh, well, there was terrible damage. It was 140,000, and they had to take it out of a bond. And it meant that the park had to be closed up so that it could resurrect the blades of grass and so on. So they were locked in to do it again. But not for the Met or the Philharmonic. Now, of course, it turns out that there is some damage from the Met and the Philharmonic, too. And when I asked the representative of the park's department, did they put up a bond for their damage? Oh, no, they don't put up a bond. Well, why not? Because that's sponsored by the city and the park's department. So I asked if they would consider sponsoring the U.F.D.J. rally so they wouldn't have to put up a bond. And of course, there was an objection and that was overrule that was sustained by the judge. So what are we going to do in the future? Well, I think now that we've opened up this issue

and people can see it very clearly, there are many of us who are very upset about this. And there are upset about several things. One is the park seems to be taken over by a small group of private individuals. Very rich, very well connected to corporations in this city. And they seem to have remade the park in their own image. Well, whatever, whether you like that image or not, this is not a private park. And of course, we do have one private park in the city. Grammarcy park, and we've had some problems with that, too. But at least it is a private park and people could live there. But they can't have this park. It's not their park. I mean, we as the public may choose how we want this park, but it is a public park. And so I think we have talked to members of the city council. They're going to be an effort to hold hearings on how the park is being used. I think we're going to be doing up-bed pieces in the press. There's a well-known columnist. I know named Jimmy Brezland who's very interested in this issue as well, so I've heard. Well, I think it's going to be working with us. I think there's a variety of organizations

that are concerned about this as well. And there's likely to be another lawsuit about this very issue, in which we will have time to engage in discovery and to try to find out a little more in terms of public money that goes into the park. Clearly, yes, absolutely. But it has been diminished. Well, the Conservancy put up a lot of money for what they call the restoration, but some of that money was public money as well. And of course, Mayor Bloomberg was active in the Conservancy before he ran for a walk or so. And then the Parks Department budget has always been cut, cut, cut, and then it has been reduced. So there are people from other parts of the city that don't have the resources that the people around Central Park has and that their parks then are. Well, that's another issue. Either put the private money into a pot that gets spread out all over or do something else. That's another big issue, because even as the park, they have spent millions and millions of dollars on Central Park. Other city parks have suffered in the process. Unless, of course, they were downtown, and then some of the lower Manhattan Development Corporation money could be used for them. But people all over the other boroughs

are being deprived of this money that should be shared. Yeah, let's go just general to the overall concept. The center talks about that it's proactive, but do you find that you've been more in a reactive mode of having to protect rights or citizens? Is there a difference between what you're doing in recent times? Absolutely. Traditionally, as you said in the beginning, we try to use the law to assist in the movement for social change. That's our primary purpose. It's not so much develop the law as the law. It's we're interested in seeing social justice in this country and seeing how the law can be used for that process. So innovative and creative. We could be creative. We don't have to win. That's not our goal. Our goal is to assist the movements for social change. And as a historical matter, we have almost always agreed with our clients. We may not have agreed with what they did in a particular occasion, but we have agreed with the general movement of people that we have represented. The situation since, certainly since 9-11, and we could have predicted this with Bush even without 9-11, is so serious that we felt we had a shift gears. And basically, we were more of a civil liberties organization

now asserting principles of law. And the issue of Guantanamo. We don't even know who our clients are. We've never met a single one of them. But the issue of the rule of law, of the executive asserting that he as president could do anything he want, including, as you probably know, the memos that came out of the Department of Justice saying the president could ignore the law, could torture people if he wanted to, in his war on terrorism. Well, this is just unacceptable. Not only to us nationally, but the image of the United States in the world is probably at its lowest ab in decades. I mean, the ugly American looks good these days compared to what America's looking like abroad. So these are very important issues. Nobody else was willing to take this on. In February of 2002, when we filed the first habeas petition on behalf of detainees, everybody was afraid. You can't do that. These are the worst terrorists in the world. Well, of course, it turns out that most of these people are nobody who don't belong anywhere. The government just grabbed people and they bought them, they gave bounties to the Northern Alliance in Afghanistan

in return for giving them prisoners and so on. It's ridiculous. But that's why we focused on that issue and felt that many of these issues had to be addressed as civil liberties issues. And if there were other organizations that at the time were not courageous enough to do it, it wasn't going to bother us, we were going to do it. We were going to take it on a week. And the Patriot Act? Well, we've taken that on also. And we won the first case against the Patriot Act in a case called humanitarian law project out in California, which has been upheld by the Ninth Circuit of the President. Well, that was one of the definitions of what it meant to aid a terrorist organization. So that if people were giving money to a charity and didn't know that the charity might have been using that money elsewhere in the world for certain purposes, and they were prosecuting these people without any individualized knowledge. And it is very reminiscent of what we would now refer to as the McCarthy era. Under the Smith Act, it was a crime to be a member of the Communist Party. And eventually the Supreme Court got around

to say no way to second. You can't make a membership in an organization that has beliefs a crime. You're going to have to prove that people that demand that the organization has illegal purposes, that the people that you want to prosecute know about those illegal purposes, and are seeking to advance illegal purposes in order to make that a crime. We're back in that situation. We look now back at the McCarthy Times and wonder just what, I mean, how did we let this go on for so long? And then we hopefully someday we're going to look back at this and say the same thing. People ask that question. Is this worse than the McCarthy era? It's different. A lot of people were afraid during the McCarthy era. I mean, I was just a kid. You know what I watched it on television. But I know how many people were afraid. The attack these days on civil liberties has been more narrowly focused on, particularly, the Middle Eastern community, the Muslim community, the South Asian community, or like these detainees in Guantanamo. But the assertions of power by the executive branch go way beyond anything Dwight Eisenhower asserted during the McCarthy era.

And if we allow these things to be ingrained in law, we're all in trouble. Now, we're all free to speak now. We're all free to go out on the streets. It is much better for us. You and I and people like us than it was in McCarthy. But if we allow them to engrain some of the legal propositions that they're asserting in court in the law, we're all at risk in the future. And it's I like to tell young people who may not be out there asserting their rights. You may not want the Constitution right now. You may not want the Bill of Rights. But it's awfully nice to know you got it in your hip pocket when you need it. And most people, I think, can recognize at some point in their life or another, they need the Constitution. And we all need to protect it for everybody's purposes. You know, we're out of time, which I can't believe. So I'm just sitting here thinking you've got to come back because we haven't talked about a lot of things. We haven't really talked about how you finance yourselves. Do you have a website that people can go and look at your cases and some of your cases? And there's a lot of other cases. We do a lot of international human rights litigation. I'd love to talk about how. What's your website? www.ccr- that's a hyphen, not an underlying dash, ny.org. And it tells us also about that.

And there's a wealth of information on it. We put on legal documents. We put on reports. We put on papers and essays, as well as our entire dockets on there. Thank you. And it's hopeful for the world that we will be able to become sainer and more inclusive and support all these things that we so just hold so dearly. And it do to people like you and some of the other people that work with you, it's great. Thank you very much. It's a very much. It's a very much struggle. We pay a little piece, but we're happy to play that piece. Thank you. I'm very glad you did. Thank you.