Ronald W Meister is a distinguished legal professional serving as Senior Counsel at Cowan, Liebowitz & Latman in New York City. Holding the prestigious role of Chairman of the Board at the National Institute of Military Justice, Meister brings a wealth of experience in litigation across federal, state, and military trial and appellate courts. With a background as a military judge and a history of representing active duty reserve and former military personnel, his legal journey is marked by expertise and dedication. Notably, Meister has played a significant role in legal matters around Guantanamo Bay, defending in 2014 a Navy nurse refusing to continue force-feeding detainees. His impactful contributions to the legal landscape make Ronald Meister a standout figure in the field.
CJLPA: We are pleased to welcome you today, Mr. Ronald Meister, to interview with The Cambridge Journal of Law, Politics, and Art. By way of introduction, you are currently a Senior Counsel at Cowan, Liebowitz & Latman and Chairman of the Board of the National Institute of Military Justice. Prior to this, you concentrated on litigation and federal, state, and military trial and appellate courts. You were also formerly a military judge and represented active duty reserve and former military and personnel among your vast experience. You also offered your legal services at Guantanamo Bay, which is what we would like to focus our interview on today. To begin, in July 2014, it was reported that a Navy nurse refused to continue force-feeding detainees at Guantanamo Bay. You acted as lead attorney for this former Guantanamo nurse. Can you please tell us what prompted you to take on this case?
Ronald W Meister: Well, as you mentioned, I served as a Navy JAG (Judge Advocate General) officer and as a defence counsel and military judge during the Vietnam era. I have continued my involvement in military justice since then and to this day as chair of an organisation called the National Institute of Military Justice. I have been involved in Guantanamo matters, coordinating an observer program for NIMJ and travelling to Guantanamo. I have written briefs on Guantanamo Bay cases for the US Supreme Court. When this case arose, I was contacted by a retired brigadier general, who had been involved with an organisation called ‘Physicians for Human Rights’. He brought the case to my attention and asked if I would be willing to represent the nurse, which was the kind of case my education and experience had prepared me for and would be interested in doing.
CJLPA: Particularly in this case, the nurse faced a potential discharge from the military for refusing to continue administrating force-feedings at Guantanamo. How did the Navy explain the complaint against them?
RM: The Navy is not in the business of explaining, the Navy is in the business of ordering. And they wanted the medical personnel at Guantanamo to do certain things. And they are unhappy when they do not do them. To the extent that there was any explanation at all, they expressed, perhaps regarding it as compassionate, a desire to prevent prisoners from committing suicide by refusing to eat.
CJLPA: From your observation of this case, was force-feeding a means of discouraging the detainees’ protests against their living conditions, or rather an attempt to prevent them from risking death?
RM: There is no doubt that they are trying to discourage protests. There is no evidence that any detainee was on the verge of death from a hunger strike. They wanted to discourage prisoners from conducting what they called ‘asymmetrical warfare’. The Navy had the guns, the military had the ammunition, and the person had nothing, so they were fighting back with the only available tools. And one form of protest was to engage in a hunger strike.
CJLPA: Could you discuss the legal obstacles you encountered while taking on this case and how you overcame them?
RM: The principal philosophical obstacle was the ingrained military habit of obeying orders, which are presumed to be legal. And there is considerable difficulty to carry the burden of proving that the order is illegal. We also faced a Supreme Court decision from 1950 called Johnson v. Eisentrager, which held that US courts had no jurisdiction over German prisoners of war held outside the geographic boundaries of the United States. So, the Eisentrager case had been upheld and enforced by that time over the years and was a precedential obstacle that had to be overcome or distinguished.
CJLPA: Eventually, the US Navy dropped all charges against the nurse. What factors do you think played a key role in this outcome?
RM: Well, they did not tell us why. As I said, they are not in the business of explaining. We had enlisted the support of some extremely helpful organisations, who felt that the vindication of nursing ethical obligations was important, principally Physicians for Human Rights, which I mentioned before. We also succeeded in getting the help of the American Nurses Association, which was very vigorous in support of our client and ultimately, at the conclusion of the case, granted him an ethics award—the first one they had ever issued. We got some support to a lesser degree from the American Medical Association. This profoundly conservative organisation was less enthusiastic, at least at the outset, than the American Nurses Association. But they did help.
Presumably, due to the attention focused on the case, the Department of Defense, which has a Committee on Medical Ethics, ultimately issued a statement supporting our position. That was persuasive once we had some support within the Department of Defense. I think a couple of other things that helped us are that the nurse himself had a highly admirable military record. He had, by that time, over 17 years of service. He had asked the Navy to send him to nursing school, which they did, where, among other things, he learned nursing ethics.
We also never disclosed his identity because we wanted to avoid any possible argument that he was doing this for publicity or his career. Even after the charges were dropped, even after efforts to bar his successful retirement from the Navy were over, and after he retired and started receiving his military pension, we did not disclose his name. So, indeed, when the ANA granted him its ethics award, I accepted it on his behalf and ultimately delivered it to him. We used to call him ‘Lawrence Nightingale’. But we never disclosed his actual name.
CJLPA: In this case, it seems that the court of public opinion or the pressure of publicity was not necessary to get the Navy to drop charges, but rather just the internal investigations and the dialogue between both sides.
RM: There was a degree of press attention to the case in the military and civilian press. So again, while we did not receive or expect an explanation, I think all of those factors together persuaded the people making the decisions ultimately to drop this case.
CJLPA: In addition to representing the Navy nurse, you also prepared the brief for the National Institute of Military Justice as amicus in support of petitioners in respect to the Rasul v. Bush case. For our viewers, Rasul v. Bush was the landmark US Supreme Court case that decided that US courts have jurisdiction to hear habeas corpus petitions filed on behalf of the foreign nationals imprisoned at the Guantanamo Bay detention camp. I would like to ask you a few questions about this brief used in respect to Rasul. Reflecting now, what was the strongest legal argument in that brief that ultimately won the court over and why?
RM: There is no evidence that any arguments we made in our amicus brief made a difference to the court. There were a huge number of amicus briefs filed in support of the petitioners in the three related cases Rasul, Padilla, and Hamdi. And there is no mention anywhere in all the Supreme Court opinions in all three cases of any of the amicus briefs. We made arguments that included domestic and international law arguments, and arguments specifically grounded in the Geneva Convention, of which the US is a signatory, and which is binding in US courts. None of the international law arguments entered the court’s opinion. That is not to say that the pressure of some arguments was ineffective. We just do not see that described as the rationale for the decisions in the case.
CJLPA: In the brief, you exposed the double standards in the application of the Geneva Convention relative to the treatment of prisoners of war, or the GPW under international law, whereby the US government declared the detainees to be outside the law, such that none of the existing rules governing the treatment of individuals detained in combat applied. Meanwhile, the US expected other nations to abide by international law and extend protections to Americans captured or detained in armed conflict. What impact, if any, do you think this double standard has had on the US?
RM: Well, let’s talk about what arguments were ultimately persuasive. You have to read behind the opinions and try to deduce what caused the Supreme Court to come out the way it did. The ultimate factor, I think, is that the idea that Guantanamo Bay was outside of the law, outside of US law, outside of international law, was too much for a majority of the Supreme Court to swallow.
Courts have been telling the executive in the United States for years what it cannot do. That goes back to Marbury v. Madison under Chief Justice Marshall in the early 1800s. It most famously came to a head in the Steel Seizure Case (Youngstown Sheet & Tube Co. v. Sawyer) in the US Supreme Court. So it is not unfamiliar for the Supreme Court to say to the executive, ‘you cannot do this’. And I think the effort of principally Secretary of Defense Rumsfeld to create a place in Guantanamo that was totally outside the law—domestic law, international law, Cuban law, any kind of law—where there would be no accountability whatsoever, was too much for the court to swallow. So, while in Rasul, the case in which we submitted our brief, the court relied exclusively on US domestic law and, to some extent, its roots in the English common law, I think when you take the three cases together and the many opinions, there may have been a bit of cover for a desire to apply some of the standards of international law, though they never said it.
The most important of these is Justice O’Connor’s opinion in the Hamdi case. Justice O’Connor wrote for four justices that there was accountability. She never uses the words Geneva Convention. But she writes an opinion that gives Hamdi and those in his condition procedural rights equivalent to what is provided in the Geneva Conventions, though she never says that. She makes up a structure that she says is applicable, including the right to counsel and knowledge of the charges against you. And she just says, these would be good things, and we think that, as on oversight of the justice system you ought to be doing this.
Well, we have a structure. You do not need to make these things up. We have a document interpreted to tell you what kind of rights people have. It’s called the United States Constitution. And because of that, Justice Scalia, who I think it is fair to say, was a more sophisticated thinker on constitutional issues than Justice O’Connor was, just tears this opinion apart. He says: ‘You are making up a constitution’. But it worked for her and for the three judges who joined her, and then for the two other judges who joined the plurality opinion, to make a decision in the case. So, while you cannot find in the opinion a reliance on international law, you do if you read it in a certain way, as I do, and you find that the concepts of international law are what turned the tables in that case. So that is the background.
You asked me about the double standard. Other countries regularly point out the hypocrisy of the United States in preaching to them what they can do with prisoners, what they can do on the battlefield, what kind of force can be used, when the US itself is a principal purveyor of torture, and is a principal purveyor of massive retaliation, as for example in Iraq, and that decreases this country’s credibility when it seeks to enforce standards on the others.
CJLPA: You mentioned how Justice O’Connor discusses international law concepts without explicitly referring to international law. Why do you think there is a reluctance to rely on international law within the judgment specifically?
RM: There has been a long unwillingness in this country to submit its conduct to international oversight and control. At least in our modern memory, it goes back to our unwillingness to join the League of Nations after World War I. There has certainly been a trend of isolationism in the history of this country, unwillingness to submit to certain international tribunals, and a feeling that we know what is best for ourselves. Still, at the same time, we tell other people what is best for them based on our standards. And one of the great exceptions to that was this country’s adherence to the Geneva Conventions. And if you look at the background and the rationale of those provisions, much of it is with the understanding that it protects US forces: if we adopt these standards and comply with them, we have a stronger argument that our forces fighting overseas will be protected. I wonder if that concept prevails to the present day and certainly it was not at the forefront of Secretary Rumsfeld’s mind, when he said, ‘We are going to put people in a position without rules’.
CJLPA: You also set out various protections and guarantees codified in the military justice system, including the right against self-incrimination, the right against cruel and unusual punishment, or the right to a speedy trial. The detainees went through military courts, and yet none of the detainees ever got to realise these rights. Why?
RM: Well, it is not accurate to call these people detainees. The government, the Defense Department, wants to call these people detainees, as if they are just waiting for a bus to come along. They are prisoners, long-term prisoners. They are prisoners in very harsh conditions. So, some people prefer to refer to them as prisoners. Whatever the term you use, these are neither military courts nor courts-martial. The rights we describe in our brief are those that developed under, most recently, the United States Uniform Code of Military Justice, which has been in effect since the early 1950s. And they are well-established. But military commissions are a very different animal. Military Commissions are made up ad hoc. And the rules are made up ad hoc.
There was a long process of developing rules for these particular commissions that went through several rounds of legislation and litigation in the courts, and several times, Congress had to go back to the drawing board and start all over again. And ultimately, through those rules, a right of counsel was recognised. Other rights are enforceable in military courts, as in US civilian courts, like the right to a speedy trial, which are not effective in these military commissions. And you have people who have been awaiting trial for over a decade, or over two decades, since some of the alleged behaviour occurred. So, to respond directly to your question, the prisoners did not get the rights guaranteed in military courts because they were not before a military court. They were before a military tribunal. And we have to recognise that those are two different things.
CJLPA: In the context of the war on terror and Guantanamo Bay, it is concerning to see how clear, coherent laws are disregarded in the name of national security. From your perspective, as a former judge, how can we ensure that the checks and balances system will not be interfered with again, as it was for the Guantanamo Bay prisoners?
RM: I can only say what was reportedly attributed to Jefferson: Eternal vigilance is the price of liberty. There have to be people who are prepared to take up unpopular causes for unpopular defendants. And that has been the case in this country. There are many good people I know that you have interviewed, many others who forcefully stood up for the rule of law. And that is not an easy choice and was not inevitable in this case.
When military tribunals were established first in Guantanamo, the National Council of Criminal Defence Lawyers took a policy position that they would not participate, they wouldn’t defend any of these defendants because it was an unfair, unjust, and indefensible system, and they didn’t want to be part of it. That position turned. Many dedicated lawyers, solo practitioners, academics, large firms, and small firms took up the cause of providing defence and making arguments, essentially that: ‘We’re better than this. The country is better than this. The country deserves better than this’. There will always be people who will do that.
There have been books written about them. There’s a wonderful book called The Guantanamo Lawyers that talks about the efforts that they have made here. It is also much dependent on the atmosphere at the time, a time when there are attacks on the United States, a time when there were 1000s of people killed. At any time of warfare, the courts, like any other institution, are in a defensive posture and do things out of concern for public safety and national defence. In retrospect, when much of that fear goes away, they have second thoughts about these things, so we have to be careful not to be entirely in a moment of fear and to recognise the historical context, which is very difficult.
CJLPA: That leads to my final question: what legacy would you like our viewers to draw from Guantanamo Bay?
RM: It is a question with many facets to it. From the standpoint of my involvement, one lesson is what I just said a moment ago: if we have standards, if we have ideals, if we have processes, if we have rules, then those rules ought not to be easily overcome by fear, by a desire for retribution. And we have to be true to our principles. The Constitution is a wonderful document that continues to evolve despite the views of so-called originalists. It has to change with context, and new situations always arise.
Guantanamo had some precedents in the establishment of military commissions. Only a few were on this scale, though there were in the Civil War and other times attempts to forego the civilian process completely. While during the Civil War, the courts were far more willing to accept the exigencies of the military condition, they later came to a more balanced understanding of what was permissible and impermissible.
But we have rules. We do not need to invent rules to apply the rules in cases like this. And we need people who don’t think they’re above the law and that what they do is beyond the law.
CJLPA: Thank you, Mr Ronald Meister, for taking the time to speak with us today, to tell us about your legal experiences with respect to Guantanamo Bay and for offering your valuable insights. It has been a great privilege for us and a very fascinating discussion.
This interview was conducted by Nadia Jahnecke, Legal Editor and Founder of Human Rights Volume of CJLPA 3. In addition to her role at CJLPA, Nadia is currently working as a Trainee Lawyer and will qualify as a lawyer in England and Wales in March 2024.