Interviewer: Okay, good afternoon. We are very grateful to you for participating in the Witness to Guantanamo project. We invite you to speak of your experiences and involvement with detainees and others who were in Guantanamo bay, Cuba. We are hoping to provide you with opportunity to tell your story in your own words. We are creating an archive of stories that people around the world and in America will have a better understanding of what you and others have experienced and observed. Future generations must to know what happened in Guantanamo and by telling your story, you are contributing to history and we appreciate your willingness to speak with us today. If at any time during the interview you'd like take a break just let us know and if you say something that you'd like us to remove we can do that if you let us know as well. So we'd like to begin with just personal information your name, your hometown, your date of birth and age. Maybe we could start with that. - My name is Tom Berg. I'm 60 years old. I live currently in Houston, have since 1970 I was born in Washington DC, raised in Mexico City Mexico, went through primary and secondary school there and then came back to Houston, which is where my family's from to go to university in law school. Interviewer: Your date of birth? - March 19th, 1952. - And did you go to college or university and law school here in Houston? - Yes, I did. Rice University for undergraduate and then the University of Houston law school. Interviewer: And what's your current occupation? - I am a criminal defense lawyer. Interviewer: So maybe you'd give us a little background on how you first got involved with the military pre 9/11, or were you? - I joined the army reserve in 1986. I was direct commission as a Lieutenant in the JAG Corps back in 1986, that consisted of one weekend a month eating donuts and reading newspapers. The reserves were not very active in those days. That was the late stages of the cold war when things were winding down. That changed, I was mobilized first for the Gulf War and then subsequently served a tour of active duty in Bosnia. Then after 9/11, I was mobilized to work first on the judge advocate general of the armies program for military commissions in November of 2001. And then later I was detailed to be the staff judge advocate for detaining operations in Guantanamo, Cuba in 2002. Interviewer: Okay, let's go back to right after 9/11, where were you on 9/11 and how did it happen that they selected you to be the advisor in November? - I was Houston on 9/11 driving from Houston to Brazoria county to go attend court when I heard over the radio that the towers had been brought down. I figured that that would implicate me shortly. And it did. The army lawyer, the active duty lawyer who was put in charge of the military commissions project at that early stage was a Colonel by the name of Larry Morris. And I had known Colonel Morris since my activation for the Gulf war and later served directly under him in Bosnia. So he knew that I was a criminal law practitioner. He was assembling a team of people with experience in criminal law to come up with rules and procedures and definitions for crimes related to what took place on 9/11. And so he asked me if I would come on active duty and under the circumstances I could not say no. Interviewer: And can you tell us a little bit about how that process worked when you when you joined his team? - We had offices in the Pentagon directly adjacent to the area that had been blown up by the impact of the aircraft that hit the Pentagon. So we worked with the smells and with mold and everything else that was related to the damage in the place. As we were trying to grind out, I guess, do the groundwork of developing rules and procedures using primarily resources from the uniform code of military justice and experience based on the Nuremberg trials cause we read transcripts of a number of those cases and talked with some of the surviving lawyers to try and come up with a process we thought would look fair in 50 years. That was our goal was to create something that was transparent and fair. We were naive because we didn't appreciate how political the process really was and who was ultimately calling the shots. We thought the army would have the lead. We had lots of interference from civilians and department of defense from the white house, from department of justice who ultimately took control of the process. Interviewer: Could you give us some details on how that happened? How you had interference? - Well, we would do a lot of work. Our leadership would go meet with this collection of individuals from various agencies to discuss what they want to do, whether they would be things like a presumption of innocence, a burden of proof on the government, whether hearsay was admissible. Some of the fundamental issues for what we thought was a fair trial, because we were basing our experience on the uniform code of military justice and things that would look a lot like a court martial, a system that we are proud of and we've been inculcated with for a long time. And we found out that they didn't necessarily agree with that though. Interviewer: How did you find that out? - Well because our leadership came back pretty battered from those meetings with the civilians. They would report to us that that things were not going well. Interviewer: Well could you give us some specifics what would happen at a meeting that caused them to feel battered? - Yeah, they just get criticism, people like Haynes from Pentagon would tell them, no we're not doing it that way. There was a sense that the trials that they wanted were essentially show trials where the outcome was a foregone conclusion. They didn't want acquittals under any circumstances. Interviewer: How did you feel about that? - Pretty uncomfortable. All of us grew up with due process. We're all American lawyers and we understand our culture in the law. And again, our point of departure was the uniform code of military justice which is very due process oriented, even more so perhaps than the civilian federal practice and Nuremberg. Like I said, we wanted this to look fair and transparent after we were gone. And it was evident that not everybody agreed with our premise. - And why do you call yourself an IDU? - Because we went in there with a great deal of enthusiasm. I think a sense of patriotism thinking that this was going to be an opportunity for America to show the world how it was truly great, that we would rise above what had happened to us, do the right thing. And it was clear that some people wanted immediate political gain out of this as opposed to long-term perspective. Interviewer: Did your committee disband then when you... - It continued, but in February I was sent down first to Guantanamo. That was my first trip to Guantanamo was really a site visit to see if there was a suitable place to set up a court martial facility or a military commissions facility. Cause because by then the secretary of defense had decided that Guantanamo was the place where the prisoners would be coming. And then in early March, I was then designated by the judge advocate general to be the staff judge advocate for detaining operations there in Guantanamo. - So could you describe your first visit to Guantanamo in February? What that was like? - It was surprising. My only experience with Guantanamo as it was with many people was a bad movie called "A Few Good Men" and the real Guantanamo bears no resemblance to anything that you see in that movie. Interviewer: What did you see when you went down there the first time? - It was arid, there were iguanas, protected iguanas, wandering about the place and banana rats, nasty critters. - Did you see the detainees? - I saw the detainees they'd camp Camp X-ray. At the time they were living in conditions not too dissimilar from the guards that were detaining them. The guards were in some rather old GP medium tents, canvas tents, directly adjacent to the facility where they were being kept. They've been portrayed, I think in the media, as dog cages but they'd been detention pens that had been originally built to hold Haitian and Cuban immigrants who had come ashore in the 1990s during one of the various floods of immigrants who tried to gain access to the United States through Guantanamo. So the conditions they'd look worse than they actually were. One of the advantages of living in those open cells was that people could see your condition and it made you less subject to abuse. What goes on in the night and undercover of darkness in closed steel rooms is much different than what can happen in transparent cages. Interviewer: So you weren't that upset at that point as to what you observing? - No, of course we didn't know that they would be people there 10 years later, either. The notion that we had at the beginning is this was temporary. There was a sorting out process that was required because we didn't know who we had. We really didn't. We were gathering people up off the battlefield and they were not being effectively screened there. They could not be effectively screened there. And so determinations we thought would be made later and then there'd be a sorting process and those who turned out not to be the worst of the worst would then be sent out. Interviewer: And had you heard anything about the way the men have been treated in Afghanistan before they came to Guantanamo by that early date? - No, no. We didn't have any information about abuse at that point. Interviewer: And at that point, did you understand that all the men you will looking at were dangerous? - We had been told that when we saw them we were probably more dubious. Interviewer: Why? - Well, some of them were ancient, a few were non-campus. Interviewer: Were what? - Non-campus meant as they were a couple of them were simply out of their mind. We had one guy that was referred to it was half dead Bob. A number who had been shot, shot in the rear. We could tell that they were simply the last guys down some foxhole. Interviewer: Well, why was half dead pop called that? - Well, because when he arrived he was literally half dead. He managed to survive Interviewer: From fire? - From gunfire, yeah. Interviewer: And he wasn't in the clinic? - No, we did have a full Naval clinic there. We had a Naval hospital and ultimately we established an auxiliary clinic adjacent to the camp. Interviewer: But the half dead Bob was he in the clinic? was he in one... - No he wasn't in the clinic. Interviewer: Did you get to talk to the detainees when you first came down that first time in February? - There was no real occasion to do so. I wasn't there to interview or interrogate them out. Just looking at that first trip, again looking for a site where we could set up a court facility. And then afterwards, when I was in charge of detention operations I would pass through, I would observe them but it wasn't my job to talk with them, for example. Interviewer: Well, let's go to that second time when you came down in March, that's when you were in charge of detention operation, what exactly did that entail? - At the time there were two separate task forces. One was detention operations which was a military police function run a prisoner of war camp. The other one was an intelligence gathering operation. Our operation was under the command of a one-star general. Interviewer: Who was? - That would have been General Baccus. Rick Baccus from the Rhode Island National Guard. And then the intelligence gathering operation was under a Major General Dan Levy. Mike Dan Levy who was an army reserve general. Interviewer: And what was your role? - My role, I was the legal advisor to General Baccus. Interviewer: What did that entail? - That entailed everything has to have judge advocate generally does from criminal justice issues with maintenance of discipline with the troops to legal opinions on a variety of, I guess, relatively benign issues. We had unique issues. We had to anticipate. What if one of our detainees dies? How do we conduct a burial? How do we establish a Muslim burial ground there? Even if it's temporary. So that's consistent with the religious mores of the people we've got. I was also liaison to the red cross. Interviewer: What does that entail? - That required frequent communication with the representative of the international committee of the red cross. They'd been invited in by a Colonel Manny Superville who was the staff judge advocate in Florida our higher command. Interviewer: When the red cross was there we had heard from some detainees that most of the letters if they received them at all were redacted. There's hardly anything on the letters going both out and coming in. Is that your experience? - They were subject to some censorship, but I don't know that they were totally redacted. We know that many of them got to their destinations. Interviewer: Did you ever see any of the letters? - I did. Interviewer: Did you ever see lush flag? - No. Interviewer: Pause no. Most of the letters were not that blackened out. Do you recall? - They were. - Had you heard any inklings in these early days? How long were you the advisor to? - I was there through August. Interviewer: Of 02. - Of 02. Interviewer: during that six month period, had you heard any talk about possibly using more harsh interrogation in the intel side of things? - We were always alert to that possibility. Interviewer: Why? - Because it was our responsibility as the detention operation to ensure the security of the people we were charged with protecting. When you do detention operations you have responsibility for the welfare of your prisoners. And that could put us in conflict with the Intel side if they wanted to do things that would constitute torture. Interviewer: So had you heard any chatter about that possibly occurring in the interrogations? - We heard suggestions of it. Like I said, we were alert. There were some people who were in a special category of detention who were held in the Navy brig and the red cross did not have access to them initially. And this was justified by the Intel operation to us. And we were concerned what was going on with that. Interviewer: You talked about the Naval brig in Guantanamo? - Right, the Naval brig in Guantanamo which was just a nasty old block house. - And what could do about them? - Well, two stars trumps one star. - Which means? - Which means that general Dan Levy could put his foot down and he had his lines of communication through self common to the Pentagon. Interviewer: So if you heard, how did you hear that there might be something that is untold going on in the interrogation. - There was an active effort by the Intel side to co-op some of our guards. - What does that mean? - To get them to become intelligence gatherers for them? As an MP doing it for example a prisoner of war operation you have a responsibility to gather passive information. If you observe something, you report it but you do not become an active intelligence gatherer. You don't have the training and you don't have the job and your charges are going to be much more difficult for you to manage if they perceive that you are working contrary to the general interest of just maintaining them in custody. So we had this inherent conflict. We were trying to give a pretty clear guidance and rules to the young soldiers who were performing the guard duties. And the other entity on the on the base was trying to utilize them in a different fashion. So we had a lot of conflict generated between the two commands over those issues. Interviewer: What did you do if you heard that some guard was or several guards were being approached by the intel? - My lines of communication were to general Dan Levy's lawyer to voice complaints and of course to keep my commander informed and then they would meet as well, general Dan Levy and Baccus. They were pretty much oil in water most of the time. They did not get along. General Baccus as I explained to them, the law of torture is defined even in title 18 United States code. So we could be criminally liable for anything that happened under our watch that we acquiesced in and that because many of the interrogators were nameless. If anybody ever looked they'd looked for the people who actually had names and that would have been him. So he was cautious based on my legal advice and he tried to conform his activity to that. Interviewer: But it sounds like he just bumped up against a wall and he just had no say in reducing the Intel side from approaching your staff or from otherwise interfering thing with your work - Well the normal way you resolve problems when you can't resolve them at your level is to bump it to the next level which would have been SOUTHCOMM. And we raised a lot of these legal issues to the next higher level but they refused to give a significant guidance. In other words, they wanted us to work it out on the ground so that they didn't have to be responsible for it or they didn't have to go to the Pentagon and then face the heat from the political powers who would come after him for bringing these issues to them. Interviewer: Do you think they suspected that or did you suspect anybody suspect where this was coming from this idea of using harsh interrogation with who was actually behind this very. Was it coming from Dan Levy or come from above? - It was coming from above, Dan Levy I don't think you would have come up with this himself but there was a tremendous amount of frustration over the lack of results. Again, we gathered a bunch of people off the battlefield the secretary of defense had declared they were the worst of the worst. And so in the perception of the minds of American and many in the military, we had the bad guys and then you get to the truth on the ground there and yeah, you do have some really bad guys but you got a whole bunch of people who know little or nothing, and they're worthless but you can't get rid of them because you've already declared that they're the worst of the worst. And we're still trying to get rid of many of those people. Look at the wiggers and the trouble we've gone through to try and send them somewhere. I think we've got some tending golf courses in The Bahamas now and we just sent some to central America. It's been a bizarre journey for them. Interviewer: Do you think Dan Levy believed in this harsh interrogation? - It's hard to say. He certainly drank more of the Kool-Aid than I think he should have. He was a bully. I think everybody who met him down there realized he was a bully and he threw his weight around, he threw his rack around. And it's consistent with being a bully that he would permit those kinds of activities to take place like harsh interrogations. Interviewer: When you spoke to the guards, Hey you and no longer participate with Intel or did some of them disobey you and continue to participate with Intel? - I don't know whether they continued to participate because they wouldn't have told me had they continued to do that, but we were very clear in our training about what their roles were and what their roles were not in order to maintain discipline. Interviewer: And were you frustrated with the fact that SOUTHCOM would not assist you? - Very. - Is there anything else that you could have done? - No, I mean that was our chain of command and we had to work within our chain of command. So it was very frustrating to try and elevate issues to the chain of command only to have them pushed back down on us because there was no resolution our level, they were telling us the Geneva conventions didn't apply. I know as a lawyer that approval of the Geneva conventions was an act of Congress. It's a treaty signed by the United States. Not even the president can abrigate them. And of course the Supreme Court a few years later confirmed that that was indeed the case, but we were in an atmosphere where other lawyers were saying, yes, he did and you're not being very patriotic by taking the different position. Interviewer: So is there any incident you can tell us about between February or March and August that might be interesting for viewers 50 years now to represent what you're describing? - There was one circumstance that I recall very close to the time I left, where general Dan Levy and I at camp Delta, went into one of the buildings at the request of the red cross, because there was a rumor that someone was being mistreated. And one of the detainees was held naked in a detention cell which is all steel, and the temperature had been dropped. I think about 60 degrees with the air conditioning and the windows had been obscured. So there was no daylight. Those are collectively violations of the law of war because those are prohibited actions. You have to have daylight, you have to have clothing, you have to be kept properly warmed. And he turned on the lights and he reported back to me that he turned on the lights and what he saw and that we could then not assure the representative of the ICRC that he was now okay. Interviewer: Did you report that to anyone else? - I report to the general and he's the one who has to report it on. Interviewer: You to know what he did? - So I don't know whether he pursued that or not. He probably pursued it with Dan Levy. And then again, SOUTHCOM was like sending it into a black hole. - But you actually observed this? - I was with general Baccus when he went in and he told me what he saw. Interviewer: But you didn't see yourself. - I didn't see it myself. Interviewer: But he told you... - But he told me after we went in and then I relayed that information to the representative of the ICRC. Interviewer: So at that point, what were you thinking in terms of all that you had brought to the military and your belief in the rule of law at that point, when it was starkly clear to you that we weren't adhering to what you had understood to be the proper Geneva convention approach to prisoners of war, did you think it was time for you to leave or? - I didn't think it was time for me to quit the JAG corps and quit the army. No, I thought it was probably time to double down on our adherence to due process. When I came back and I talked with army lawyers I told them what had happened, what I'd seen and that we were in for a long fight, not just with the enemy but with ourselves, but it was certainly not a time to quit. Cause then you're giving into the dark side as opposed to resisting it. Interviewer: Did any of the army lawyers listen to you and pursue it? - Yeah. Well our judge advocate general at the time General Romig was certainly aware of the difficulties and he along with the other judge advocate generals when they spoke to Congress expressed their concerns. Interviewer: Why did you leave in August? - I was a reservist, had been mobilized and they could only keep me so long. They asked me if I would stay longer but I was pretty worn out from six months of fighting on the ground in Gitmo and I was ready to come back home and resume practicing law and be a civilian for awhile. It was clear that the military commission project that we had started out with was not going to take fruit, and we were not gonna be trying any court martials anytime soon down there or any military commissions. Interviewer: Why was that clear? - Because the process had completely stalled. Interviewer: Why is that? - Because the politicians had taken it over and they were in conflict with the judge advocate general over how to do it. They wanted to use military commissions. They wanted to use military people in them. The military was resisting the civilian pressure to make these into simply kangaroo courts. And in order to have trials, you've got to have evidence and you've got to have suitable defendants and they were having trouble developing sufficient evidence to even bring forward in a kangaroo trial to present something. Interviewer: I want to go back to that, so in August did you go home then? - So I came back. Interviewer: And did you stay home or did you go back? - I made a couple of visits to Gitmo later on but they were semi-official. I was mobilized for Afghanistan in 2003, and I went with a civil affairs unit and I spent a tour there and then I went to Iraq in 2008, 2009. Interviewer: Could you tell us about the subsequent visits Guantanamo? Why you went and what you saw then? - In some respect, I was assigned to a reserve unit, which was still supporting the rump military commission process along with like three other lawyers. And so for my annual training I was able to get a trip down there. Interviewer: And what did you see that was different from what you had experienced? - Well, by then Camp Delta was well-established. We were coordinating with Syda, which was the the CID task force. In addition to these military task force, you had a collection of law enforcement agencies that were trying to develop evidence with the idea that there might be civilian trials. And so they were trying to gather and preserve evidence and develop intelligence that could be used for criminal prosecutions as opposed to military prosecutions. And we still had an advisory function to them. So I did some of that. Interviewer: What did you do exactly? - Provided basic legal advice to some of the sidif agents on the ground from the various elements. There was army, CID, Navy, NCIS. FBI was there. Interviewer: What did you think one time when we went back those two times or three times after you left it, could you describe how it looked different? You said that kept after. What else did you notice? - Well, of course by then Camp X-ray had been abandoned. It was just overgrown with weeds and everything was contained within a much less transparent area. The significant thing when I went back was that the detention task force had actually been merged into the Intel task force and became subordinate to it under the command of still at that time general Dan Levy. Interviewer: What did you think of that? - I thought that was a terrible idea. Interviewer: Because? - Because that's a fox in the hen house. As difficult as the tension was during the time we were there I think it was healthy that there'd be resistance to those intelligence operatives who were willing to bend the rules, to take the gloves off as I think it was Dick Cheney said. And when you lost that, then you lost accountability and and you lost any kind of dialectical process for decision-making. Interviewer: What kind of people were in target is that you saw? - There were a variety. You might find some people who were military intelligence MI, interrogators who'd had standard training. Then we had people who I guess they were certainly non-military. There were other governmental agencies OGAs. Interviewer: Did you see CIA agents down there? - Well I wouldn't know what that they were CIA but I would assume that they were CIA or other DIA. One of the many acronyms for other governmental agencies and some were probably contractors. Interviewer: Did you ever speak to any detainee who was interrogated? - No. Interviewer: You never did speak to detainees at all? Did you ever have a chance to speak to the detainees? - I would speak to them briefly walking through, one of the things that we did that distinguishes Gitmo from Abu Ghraib for example, is we did random checks at odd hours to make sure things weren't going wrong. General Baccus would show up at two o'clock in the morning, for example something which wasn't going on in Abu Ghraib later. And I would do that from occasion to occasion as well. And so I'd have casual contact walking up and down a hallway with detainees. And those that could speak English could say something, but other than that casual chat I wasn't going to get into intelligence gathering either, that wasn't my job and I knew better. Interviewer: Did you ever see any people from other nations present in Guantanamo? - You mean like are the interpreters? Interviewer: No, perhaps the diplomats or maybe interrogators or agents from the countries who would interrogate the detainees? - I knew that they were , that they'd gotten country clearance to come in. Did I see them in action? No, but did I know that they were there? Yes. Interviewer: Why would they tell you they were there? - Well, we just learned about them coming in because in order to come in to get mail, you had to get country clearance and you had to come through the Navy. And so that's not exactly a super secret. Interviewer: Any thoughts about those visits? What do you think about it back then? - If they were allied nations trying to gather information I don't know that that triggered anything suspicious. Interviewer: Did you see any juveniles while you were in Guantanamo? - I'm thinking we sent back a juvenile. Once we found out he was a juvenile and of course we found an American citizen too and he'd been born in Louisiana and once we determined that we had to get him out of there pretty quickly too. Interviewer: Why there? - Well, because our rules provided that American citizens wouldn't go to Guantanamo. Interviewer: So were you actually the one who discovered he was an American citizen? - No, I wasn't the one that discovered it the folks conducting I guess general admission found out about that. And then it came to my desk and I said, well, he's an American citizen. That's the end of that. We have to do something else. Interviewer: And did you follow along when he was sent to the Naval brig in South Carolina, were you aware of that? - Yes. Interviewer: And did you have any input or any understanding what was going on in that brig? - In the beginning I did. They were asking how we did certain things. What did we provide? What could we provide the detainees for amusement? Books, cards, games, whatnot. And so at that superficial level of general how do you hold them? Yeah, I did talk with the detainee officials at the brig. Now, what happened later? That I don't know. Interviewer: You had no idea? - I had no idea if he was held in isolation for a prolonged period of time once that got going, no. Interviewer: You would have no jurisdiction that area. That's was not something General Baccus would have had any jurisdiction. - No, we were at Gitmo and that was it. Interviewer: You went back, you said a couple of times to Guantanamo, the next time we went back was it any difference against any incidents you can describe to us that might help people understand what you observed and what you were thinking? - At that time the relationship between the task force and the Naval base had broken down significantly. There was hostility, when we were there it was a collaborative effort, but by then I think the Navy had realized that they had something ugly on their hands and it was not a good thing be associated with. And so it was a more complex social environment for the people serving down there. Dan Levy had worn out his welcome in a big way and so things were tense. Interviewer: And you could pick that up. You knew that when you came down. - Yeah, I had been on good terms with the Naval personnel and I'd had dinner with the commander of the base and Navy captain and with the head of the hospital as well. And so I developed a social relationship with them and so when I came back and I visited not talk with him, we saw how things had played out once the detention operation had been subsumed by the Intel operation. The hospital was resisting providing medical records to the Intel people, because they perceived that in violation of their mission under the I guess like HIPPA, disclosing down unauthorized people. They didn't think they had the authority to give medical records to this group. And they didn't think it was in compliance with the Geneva conventions which everybody was still trying to adhere to. When the president said Geneva didn't apply but it would be Geneva like, of course, that was the end of the guidance that we got. What's Geneva like. My legal opinion at the time was the president didn't have the authority to abandon the Geneva convention in the first place. And that was what the task force lived with while I was there. Interviewer: Did you see any people on hunger strikes while you were there? - Yes. Interviewer: Could you describe that? - When they went on hunger strikes, they were taken to the hospital and they would be fed. If they refuse food, then they would be fed through a hose system that would go through their nose. Interviewer: Did you see that? - I saw the implements of it and I'm familiar with it because it's been used as well in the bureau of prisons. That was a practice that was used in the bureau of prisons that got transferred down there. I was not overly offended by it. I know that it's uncomfortable, but I also know that a detainee who wants to die is doing that for a political reason generally. And we don't have to give into his political reasons and certainly we are responsible for their care. We should not be letting them die. So I know there was conflict between the people who thought that that was torture. In my opinion, it was not, it was unpleasant but it was an unpleasantness that was provoked by decision of the detainee not to eat. Interviewer: Were you present in Guantanamo whenever the detainees tried to commit suicide? - No. Interviewer: You hadn't heard any of those? - I had not heard about that. Interviewer: Did you ever go through the clinic? Were ever in the clinic? And see some of the detainees in the clinic? - Yes. Interviewer: You could you describe how they were treated in the clinic? - In the clinic they were treated like everybody else. There was no distinction made between them and American soldiers or sailors. Interviewer: Were they shackled? - They were shackled. I mean, I guess there is that distinction that they're not getting off their gurney and wandering around, but other than restraints to keep them in place, the level of medical care was the same. Interviewer: Who replaced General Baccus and General Dan Levy? - Of course Baccus once he left his function was subsumed. So there was no real replacement for him at that point. I'm trying to remember the name of the major general who came down and replaced Dan Levy. Cause he was the one who later made the trip over to Iraq, and we knew Iraq was about to happen. Interviewer: You mean General Miller? - General Miller, Jeff Miller. That's right. Interviewer: When you say you knew, what did you know about Iraq? - When we got down there, we had a lot of active duty forces in terms of our guard force, active duty MPs. Even though we had also a large contention of reservist and the command was actually a national guard but they started pulling the active duty forces. We didn't have the A team down there in terms of the personnel that we were getting. And we could tell that things were gearing up for Iraq and that's why our resources... Interviewer: You saw that coming? - That was no secret, we had people. I remember talking with some interrogators in the mess hall who were convinced that there was a link between Saddam Hussein and 9/11. And they were gonna be the ones who found it. They were very proud of that. And I thought they were a wacko, but there was no secret that's what they were affirmatively looking for those links in the interrogation. Interviewer: In Guantanamo. - In Guantanamo in early 2002, in order to support a claim that Saddam Hussein was connected to it. Interviewer: So you think they were ordered to look for that connection? - Well, I can't speculate as to whether they were ordered. They certainly seemed highly motivated to try and find it. Of course there wasn't one but not for their lack of looking. Interviewer: And do you think General Miller continued or perhaps even intensified the harsh interrogation and then brought it to Abu Ghraib? That's some people have said, do you know anything about that? - I don't know how much cross-pollination there was based on his trips there and what advice he provided. Technically the Iraq incursion was entirely under the Geneva conventions. It was a war between nations. And so our detention operations should have been in complete compliance with the Geneva conventions. Interviewer: Had you heard rumors about General Miller in Guantanamo and perhaps intensifying the hush interrogations post Dan Levy? - I had not heard rumors of that. Interviewer: So looking back at just that bit before we go on, if you were in charge, how would you have done it differently? - I wouldn't have put it in Guantanamo to start. Interviewer: Why? - I think Guantanamo was selected. It was a fallacious reason. One of the reasons that was given was that it was technically not US territory therefore US federal courts would have no jurisdiction over it. That's pretty cynical to prevent legal oversight. The other reason if you've ever been in Washington DC in January, it's miserable, how nice it is to take a tropical trip. And we had so many official government tourists come down to Guantanamo, and then they get these tours and they get a little ball cap that said that they'd been at Guantanamo and they got to see real Taliban in cages and whatnot. Part of it was convenience for that kind of official nonsense. And we had quite the director of health and human services come down. He had no connection with what was going on but he was one of the official tourists as well. So by being so close, it became a tour destination for Republican officials. Interviewer: Where should the men have been taken that we captured if it was not Guantanamo. - If we were concerned about security one of the places we were looking at back in November of 2001 was Tinian the island out in the Pacific where we'd taken off the drop the atomic bombs because it was easy to secure and it was isolated. Interviewer: Why didn't we use that do you think? - Well I think Guantanamo offered convenience and this false premise that there was no federal jurisdiction because it was technically Cuba's. Interviewer: And is there something else that you would have done differently besides not going to Guantanamo? - Well, out of adherence strictly from the very beginning to the Geneva conventions as we tried to do. Interviewer: Why is that important to you? - Why is that important to me? I was raised with due process of law and fairness and we're Americans, we're supposed to be better than that. And we weren't, and it still troubles me that we weren't, that we couldn't see past the calamity that 9/11 certainly was, the tragedy that it would be twisted into a pretext for the invasion of Iraq. When I served in Afghanistan in 2003, 2004, we were in a position where we could have concluded operations and essentially left victorious. But for the fact that all the resources got sucked away to Iraq, and now we're still stuck in Afghanistan. That's a direct result of a lot of those decisions that were made and a lot of the hubris that was involved in making those stupid decisions. Interview: How'd you feel when Obama was elected? Did you think he was gonna make a difference? - Yeah. I actually met him in Baghdad when he was a candidate and he came for a tour. He'd been challenged by Senator McCain because he'd not visited the troops in the war zone. So he came and he was very popular with the troops. And I had a chance to meet, talk with him for like five minutes. Interviewer: Really? Because of your position he gave you... - I was working in the embassy as a liaison in the rule of law section and I worked directly with the Iraqi judiciary. Even at that time we were trying to give back to them the thousands of people we were holding in detention in Iraq. I got stuck in detention operations again, over in Iraq. Interviewer: Can you tell us about your conversation with him? - I mean it was superficial as can be of course, we weren't talking shop just a general visit. It was immensely charming, really a rockstar. There was a stage set up in the embassy and he and the ambassador and a couple of US senators got up on the stage. It was like a rock show. I've still got a video I recorded of that. They just charmed the crowd. It was fun. - Did he make any statements about Iraq or Afghanistan, that you recall? - No. No, he avoided over controversy with that because he was aware of where he was. Interviewer: And when he announced that day after he became president that he was going to close Guantanamo what did you think? - I thought great. I thought we could try those people in civilian courts. We didn't need military commissions to do it. We didn't have that many people we could try anyway, based on the evidence that had been gathered. Interviewer: Did you think he would be able to shut it down? - Well, he needed Congress to go along to do it. He can have all the will in the world as the executive but he can't act entirely on his own in our country. And in this instance, the politicians who set out to make him fail, were successful in thwarting that effort to shut down Guantanamo. - Well, would you have gotten rid of all the men lefting Guantanamo if you should shut it down. - (Tom Laughs) That's something I would have certainly done different from the beginning, because I think there were 17 or 18 different people who I had to vote in agreement to release anybody from different groups and agencies and no one wanted to be responsible if they let someone out and it came back that the person resumed combat operations in Afghanistan or did something horrible. And so that froze them in place. And that kept us holding people that we wanted to get rid of for years. There was no mechanism to let them go when you found out they didn't have useful intelligence or they had not committed crimes against the United States. Interviewer: You think that fear factor is true for judges also? That they wouldn't wanna decide in favor of a detainee for fear that they might also release that person? - No, most judges that's not a factor. Interviewer: But it was a fact that made people that you work with? - The political agencies, yeah. People have to run for office are always afraid of blow back from any decision they make and that paralyzed them. Interviewer: What do you think today now that Guantanamo is still open and 69 people still live there and do you see a future? What are you seeing next 10 years going forward? - Until Congress changes, we can't close it. So it probably just dangles along costing a whole lot of money. People that we're holding will, as time goes on, either be removed in onesies and twosies or they'll die there and repatriate their bodies. Are there some people there who should never be let out? Yeah, I know that there are because they will kill Americans and they would've killed Americans before they were there. And it's not that they were turned into American haters by their experience in Guantanamo. They are really dangerous. But many, many are not and we simply can't get rid of them. It's the irony of it by painting them all with that initial label of the worst of the worst, we got stuck with them. Interviewer: Have you been following the KSM and trial of the five men who just went through hearings and when she have a trial I've been following? - I have been following that. I know a number of the players. I served with the General Martins in Iraq when he was a General Patraeus and staff judge advocate. I know the judge because I was seven years a military judge myself. Interviewer: So what are your thoughts about the trial today? - I'm curious to see how the evidence will be presented. Obviously the big issue is how does the government dance around the fact that he was objected to waterboarding and what evidence is not tainted by that process? - What would you have done instead? Would you have done a federal trial or a court martial. - I would have opted for a civilian trial over a commissions trial but I can tell you that the rules in place now for the commissions are much closer to a court martial than what the administration wanted in 2003. Interviewer: Meaning do you think this is going to be a fair trial? - I think it will be a fair trial. It will be mostly transparent. I realized that there are certain classified things that would not be disclosed there. They would not be disclosed in a federal trial either because if they're classified then the judge is going to make a determination to clear the courtroom for that kind of evidence. - Is there something I didn't ask you that maybe you wanted to just tell us that that you were picking, that you'd like the world to know about your experiences and what you've observed in the last 12 years just before 9/11 and going up to today? - Our country knows what's right and what's wrong. I think we know it instinctively, we've got it in our charter, in our founding documents. And I think we know when we go astray of that knowledge of what is right. We always regret it later. Why it is we don't stop and think at the time I don't know whether it's just the impulsiveness of our national character, the willingness to take a shortcut, if that's a flaw in America too. What we did in Guantanamo and what we did in Abu Ghraib and what we've subsequently done in smaller scale and other places are disgraceful things that hurt us in the world, that actually cost soldiers' lives later on. We polled the detainees and we had like 25,000 detainees in Iraq at one time in some of our institutions. Every one of them had been exposed to the imagery from Abu Ghraib, the guy who was spread out with wires and a hood over his head they'd all seen that, we made that and our soldiers died and a lot of Iraqis died because that was done. It was utterly unnecessary. So yeah. Interviewer: Has America learned that lesson yet? - I think our current president knows it, but I don't know that as a country we completely accepted our responsibility or acknowledged our guilt for some of the things that were done in our name. There's one political party that refuses to acknowledge that. And the other ones that brought that war. Interviewer: Johnny is there anything you wanna ask? Johnny: No. Interviewer: I don't have anything else I need to ask you currently unless there's something else that you want to talk about that I overlooked, given your what background I just don't know if there's something else I missed. - Scuba diving was great. Life under the water in Guantanamo was better than life above. Interviewer: My understanding from several of the prison guys we interviewed was that they all went out drinking every night or scuba diving or whatever in order to not have to confront what they were seeing. Otherwise it was just too hot for them and this is a way of just burying their emotions and feelings from not having to address them. You had heard anything like that? - No, we did go diving every night after work. It wasn't to escape the turmoil. Of course I was, I guess, lucky that I didn't really make that many moral compromises while I was down there that I had to avoid thinking about. Cause I stuck to my guns and then just got shipped home and it I wasn't sure what would happen in my career later as a result of the positions I took but it had no adverse effect on me. I got promoted again and got good jobs. Interviewer: Did General Baccus get promoted? Or id he retire after? - He was abused? The administration let leak that he was soft on terrorism because he had addressed the terrorists as prisoners in the campus, the commander of the camp. He was certainly entitled to do that, entitled to address their grievances. But they attempted to portray him as weak and soft on terrorism. Part of the process of getting rid of the detention operation as a separate entity. So he was treated unfairly by the administration. It was in the press. I wrote a letter to the Army Times that they published in his defense after that came out, because I thought that was particularly unfair. Interviewer: How was he treated unfairly? - Well, they attempted to force him to retire as a Colonel and they came up with some pretexts over how he failed to address some soldiers problem. But it was all around the fact that he had been resisting Dan Levy who was really a proxy for Secretary Rumsfeld in the department of defense though. The neo-cons who were trying to drive this abusive train in the treatment of detainees. Interviewer: So what did happen to him at the end? - He persisted and in the end, he retired as a brigadier general. He didn't get promoted again. So it was the end of his career and I guess he was an avid distance runner. So he's probably still running up in Rhode Island. He'd been working, I think at a VA cemetery, in a civilian job. And I think that's where he ended up. Interviewer: You didn't stay in touch with him? - I did for a couple of years afterwards but he was out of the army and I was still in and I was getting deployed again. And so I lost contact with him. Interviewer: Did you ever meet Haynes the chief counsel in the Pentagon? Jim Haynes. - I saw him. I never was formally introduced to him at the time I was a major and then just very briefly, I had pinned on like two days before I went to Guantanamo as Lieutenant Colonel. So I would have been beneath his vision. Interviewer: And I assume you never met with Rumsfeld. Did he come down to Guantanamo while you were there? - I don't recall that he came there. Alberto Gonzales made a trip there and like I said there was a whole string of... Interviewer: When Gonzalez came, did you speak to him? - No. Interviewer: Did Addington come down? - Yeah. Interviewer: Did you speak to him? - No. I didn't get to talk with any of those folks. Interviewer: You were too low. - Other than the tour guides provided by the task force, they were getting their briefings from the Intel side not from the detention operation and they probably wouldn't have wanted to hear from me anyway, because I didn't think well of him. Interviewer: The counsel to Dan Levy, do you know what happened to him? Were you able to communicate well with him or you had trouble with him too? - I'm trying to remember the guy's name now. He was a slime ball. He could not be trusted. We'd come to agreements and then he would renege on them. Boom, boom, boom. Part of it was the pressure from Dan Levy who I think was miserable because Diane Beaver also worked with him once he was there solo. Interviewer: Him meaning. - Dan Levy. And I know she had a very difficult time. She came between Dan Levy and me when we nearly came to fisticuffs at the bar on the base cause he'd been drinking and he came and he told me that I was the biggest asshole on the island, and that's pretty big Cuba with Fidel there and he picked me as the biggest irritant and was ready to go at it. And he's a huge guy. He was like I don't know 230, 240 pounds. You can see I'm slight in comparison. And she separated us. Interviewer: Really? - Yeah. Interviewer: Why did he think that of you? - Because I wouldn't agree with his worldview. I wasn't gonna change the legal advice I was giving my commander just because he disagreed with it. In civilian life he was I believe a juvenile court judge in Pennsylvania and the lawyer as well. So he thought he could just buddy buddy and then as a tyrannical judge coerce other lawyers to do what he thought. And it wasn't the case, he was despised universally. And so we had nothing to do with them socially. We avoided it. Studiously, we'd have little bar association meetings and not invite him and so we had bad relationship. Interviewer: Did you get along with Diane Beaver? - I did. Interviewer: Were you there when she wrote her memo? - No, that was afterwards. Interviewer: Do you know anything about that? Why she wrote it? - Well, I really don't know why she wrote it unless it was Dan Levy's direction, and she may have been trying to actually to mitigate some of the harsher things that they were proposing by compromising there. The trouble is that scenario where you can't compromise. Interviewer: Do you think she ever regretted writing that memo? - Yeah. Interviewer: Why do you think that? - Because in hindsight she probably knows that some of the things that were recommended were wrong. Interviewer: You think she felt the pressure to write that and maybe like you said compromise she didn't have much choice. - Well, you always have a choice. And the problem is there there was compromise where there shouldn't have been. And so she's probably troubled by that because I think basically a decent person, she was looking at retiring from there and her reputation suffered as a result. Interviewer: Did she not retire after that? - I think she got a job in the department of defense. She did retire from the army. And I think she was employed in the department of defense for a while but I don't know what's happened to her since then. Interviewer: And you knew the director of the clinic, Albert Shimkus. - Yes. Interviewer: And did guys get along? - We got along great. We saw eye to eye on how the detainees needed to be treated. I had a secret stash of medical records that I didn't share with the Intel side. There were two sets, his set and my set. Interviewer: Really? How did you manage to have your own set? - Well, we thought there needed to be two sets, but not one that was disclosed to the Intel side of the house. So we kept things separate. Interviewer: And your set, what was in your set that wasn't in the set that went to Intel. - We didn't give Intel medical records. Treatment records of the doctors were not supposed to be turned over to them. So we just wanted to. Interviewer: So you had a second set? You still in touch with Shimkus? - Not for years, but I thought well of him. Interviewer: Well, I guess colonel, I don't have any other questions unless there's something else you still wanna add. I think we've pretty much covered your work in Guantanamo. You never saw a Camp Seven. You never heard of Camp Seven? - No. Interviewer: And Camp Noah, have you ever heard of that? - No. Interviewer: So is there anything else that you just remember that maybe you wanna add or otherwise? - No, it's 10 years now so my memory is faded a bit. You might wanna go back to that frontline interview if there's something I said then when it was closer in time. Interviewer: I don't you did that we didn't cover. I think you pretty much told us, I mean your own words, a different perspective than work. You sit in the front line. You never had any dealings with a John Walker Lindh, right? - No. The so-called Johnny Taliban guy? No. That was handled entirely in a federal court. Interviewer: And did ever meet General Miller? - I did meet him once. Interviewer: In what context was that? - I'd made one of those trips down to Guantanamo and I think I just met him in passing. Interviewer: Did he know your background and how you saw it? - Probably not. I have no idea what he knew about me and I didn't know that much about him at the time. Interviewer: Well, I guess then I really wanna thank you. Johnny needs 20 seconds of room tone before we quit just of silence. So he's gonna do that and then we can end the interview. - Okay. Interviewer: Okay, thank you. Johnny: Can we get a room tone. End of room tone.