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Aggressive I mean for me
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it's just the best you could have.
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Who is a grassroots activist.
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[Male Interviewer] Right, right.
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And you enter the Center once you start the Guantanamo
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you're behind a desk all the time.
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And we needed to get our lawyers back in the streets
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so not all of them, but you know some of them,
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so Bill is, that's what he comes from so.
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[Male Interviewer] That's right yeah.
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And that's what we started as.
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[Male Interviewer] So it's good.
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So it's great no, no, I'm thrilled.
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I mean, we went into the R20, SOA stuff, everything so.
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[Male Interviewer] Oh, great good.
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So.
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[Male Interviewer] Well we can talk about that after
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but okay so good afternoon.
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We are very grateful to you for participating
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in the witness to Guantanamo project.
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We invite you to speak of your experiences
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representing CCR Guantanamo detainees
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and your involvement in the legal issues
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that concerned Guantanamo Bay, Cuba.
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We are hoping to provide you with the opportunity
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to tell your story in your own words.
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We are creating an archive of stories
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so that people in America and around the world
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will have a better understanding what you
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and others have contributed.
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Future generations must know what happened
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and by telling your story you're contributing to history.
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We appreciate your courage and willingness to speak with us.
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If at any time during the interview you wanna take a break
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just let us know and we can stop.
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And if any time you say something you'd like to pull back
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just let us know and we can reverse that.
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So I'd like to begin by having you introduce yourself,
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telling us your name and a little background,
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what you've done before you started with CCR
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and maybe just your title now and anything else
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that will help the viewer understand who you are.
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I'm Michael Ratner, I'm an attorney
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and I'm president of the Center for Constitutional Rights
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in New York which is a non-profit litigation organization.
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I graduated in probably early 70s, late 60s from Columbia
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during the tumultuous 1968 years.
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I then went to clerk for the most progressive judge
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I could find who was Constance Baker Motley
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the first and only African-American woman judge
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when I clerked.
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And then from then on I really between working at the Center
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or teaching has been most of my career.
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Tremendous activism around Cuba, Central America,
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wars, civil liberties, Alien Tort Statute cases
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suing dictators for torture and then being involved
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in both what I call Guantanamo I in Guantanamo II,
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Guantanamo I, being the Haitian cases
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when the Haitians were taken to Guantanamo
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in the early 90s and Guantanamo II of course being
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the so-called post-911 Guantanamo.
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[Male Interviewer] We might wanna talk
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a little bit about Haitian but I'd like to begin
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with how you and CCR got involved
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in the post-911 Guantanamo issues.
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Well you know CCR is only a mile or so
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from the World Trade Center probably.
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And on that day in September 11th, 2001
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I was actually jogging past the World Trade Center.
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So I saw everything that happened.
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I saw the planes go in, I stayed there
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while the second plane went in
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and we were so naive at that point
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I thought when I saw the second plane come up and over
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I thought it was examining the damage
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or gonna drop water on the building
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and of course then took a nose dive right into the building.
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At that point, I ran home,
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my children are both in schools downtown
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you know the whole thing
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and then of course New York City for that period of time
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was essentially a huge tomb.
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I mean there was pictures of people's missing parents
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all over the walls and you know
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it was a very, very difficult, sad situation for all of us.
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At the same time, almost immediately at the Center
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which is on Broadway nearby, we started getting calls
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from particularly Muslim families
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who couldn't find their brothers, their fathers,
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their sisters, people who were picked up after 911
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just in broad sweeps that were taking place
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throughout the country which they were picking up
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non-citizen Muslims.
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And so we began by starting to try and find those people
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and represent them and of course that's not the story here
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but that's, we began to funnel our work into post-911 work.
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This is, you know by middle September already.
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And then of course you heard the president's speech
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on whatever it was, the 15th or the 18th,
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you know it's them and us basically the crusade speech
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and we all looked at that really
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and we were just sort of, we were really shocked
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by the reaction not obviously 911 was completely serious
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and we were all of us utterly upset by it,
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but I certainly for myself had a reaction of saying
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if this is what war is I don't wanna see another war
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started because of this.
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And we immediately took the position
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we wanted to treat these as criminal acts
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and not as war at acts which of course
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is still a central theme
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going through the Guantanamo litigation today.
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[Male Interviewer] Can you explain that a little bit?
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Well we looked at the attack on the World Trade Center
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as a whatever you wanna call it a terrorist act or whatever,
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but it was murder, it was a crime, it was a,
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you could call it an international crime
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a crime against humanity, but it was a crime
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and the perpetrators of a crime in our view
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should be picked up, arrested, captured,
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however that's done and tried in a criminal court.
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And we did not believe it was started by a state
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which would make it more like an act of war
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and that therefore it should not be treated as a war
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but the entire framework should be a criminal prosecution
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framework and not stretch it out so it's essentially a war
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of the US against at that point it was both the Taliban
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and Al-Qaeda and Muslims in general
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it got extended to certainly in Central Asia.
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So that we began very quickly at my office
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in our theoretical thinking about
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what should be the result of the attack?
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How should it be dealt with?
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[Male Interviewer] Well, could you tell us a little bit
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about the, what CCR's philosophy is
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and exactly who you've defended in the past
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just to get a sense of the organization that you?
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Yeah, I mean CCR came out of a Southern
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civil rights movement and the philosophy was generally
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that we would defend groups, social groups,
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political groups, we're trying to make social change
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in a progressive direction.
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And we would not necessarily represent people
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whose aims we didn't agree with.
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So with that for example the ACLU would represent
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not to its discredit, but you know not the neo-Nazi
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or monitor a march through Skokie.
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It wasn't that person shouldn't be defended
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or the first amendment shouldn't be defended in that case
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it's just not the work I wanted to do
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coming out of law school,
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it's not the work CCR was founded for.
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So the people we would represent were,
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the day I got to the Center we represented,
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I represented people in the Attica rebellion in 1971.
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We represented Vietnam war soldiers
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who were resisting the war in all kinds of ways.
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We represented all kinds of,
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all the Puerto Rican liberation movement in this country
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ranging from Puerto Rican Socialist Party
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to the alleged people in what was called the FALN.
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So a wide variety of really political groups
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believing the lawyer's role was essentially
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to help political groups that were trying
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to make social change, believing that social change
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doesn't come through the courts
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but comes through people on the streets.
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And that's where we came from.
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Guantanamo represents something different for us
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and that made it difficult.
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[Male Interviewer] While we get to Guantanamo
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were you thinking,
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when you saw the planes crash into the buildings
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did you think they were cases coming out of this?
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Did you think that CCR might be involved
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and you know at that point?
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No, not at that point.
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I had no idea what was really going on there.
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I mean, none.
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I mean really none.
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I mean, the first cases I said came in
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were with the Muslim pickups
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which some of those cases are still going on.
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[Male Interviewer] And what do you think or did you feel
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CCR should get involved in that
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and you thought that's all that was going happen?
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Well there was a lot going on very rapidly I mean,
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you know you have a sequence of events
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you have the pickups, you have the then the fingerprinting
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of all non-citizen males from 19 or 18 countries,
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big pens being set up, you had the Patriot Act
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passed within six weeks,
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you know with hundreds of page Act with no one reading it.
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So you had a series of events before the November 13th,
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military order that I, in my view lead, led to Guantanamo.
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[Male Interviewer] And were you ready to go on board?
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And were you looking at pretty soon CCR
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was gonna have to stop defending these people?
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Well you know CCR wasn't set up
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really as a defense counsel organization,
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we don't, we didn't have criminal defense attorneys.
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So we never thought of ourselves
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as criminal defense attorneys.
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Some of our founders had been criminal defense attorneys,
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some of us could do it,
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but it's not what we founded ourselves as.
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So we saw ourselves as Patriot Act,
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challenging provisions of the Patriot Act
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including the broadening wiretap provision,
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the definition of terrorism, things like that
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national security letters in the Patriot Act
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we found ourselves wanting to represent the people
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in the prisons throughout the country
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who were being treated as terrorists,
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who were being beaten and we have actually recovered
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judgments on behalf of a number of those people
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who subsequently were deported many of them,
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but we did, we were able to.
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So our, we never saw ourselves as actually
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representing someone who was going to be indicted
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for conspiracy to fly a plane into the World Trade Center.
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That was not what we saw.
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And we certainly nothing about Guantanamo happened
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until the earliest note about Guantanamo was late December.
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I mean we had an earlier military order
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which is the key moment for the Center,
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but we didn't know about Guantanamo until later.
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[Male Interviewer] That November 13th order,
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why was that important to you?
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Yeah, I think that was for me
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and I was already even before that order
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I had written an article called I think "Fortress America"
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or something about, you know each of these issues
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that we've just discussed.
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The Patriot Act and wire tapping and the roundups.
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I hadn't entered the military order was November 13th, 2001.
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And so the first notice I had of it really was November 14th
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picked up the paper and there it was and I went to the,
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I read it and I went to the office I said,
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let's, we're gonna have to do something about this
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and the key things in the act just really stuck out
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one it was called at that point,
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it was called Military Order Number One.
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So what do you say to yourself
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that they're issuing a military order
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after a yes, a heinous attack on the World Trade Center.
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But to call it a military order
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which meant essentially that the country is being taken over
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by the military and the president's looking at himself
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as commander-in-chief not as the civilian president
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although he of course has both functions
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but for this purpose just looking at himself for that.
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So that's always, it remains shocking to me today.
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It's now called Executive Order Number One
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or whatever it's called
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but it originally said Military Order Number One.
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And underneath that of course it had a couple of provisions
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some which weren't as noticeable as the others.
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It's interesting.
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The first thing people notice of course is the abolition
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of habeas corpus.
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That's what I noticed at least.
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The taking away of person's right to go into court
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and challenge their detention, which has every,
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I mean if you go to law school for anything
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that's one you learn.
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That this is fundamental,
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it came out of, you know, England out of it goes back to,
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you know, conceivably to 1066 or 10,
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what's the year of the Magna Carta 1215,
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1215 is time immemorial how could I forget it?
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But anyway, it goes back to the Magna Carta
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and then on through a series of challenges
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that happened during that period.
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So that's fundamental and of course it followed
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interestingly enough the Roosevelt Order
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during the Second World War.
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But of course parts of that Roosevelt Order were later-
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[Male Interviewer] Could you tell us
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what the Roosevelt was, what you mean by that?
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The Roosevelt, there was a Roosevelt Order issued
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I think after the Nazi saboteurs came into the country
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about how to try them.
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And I guess the administration,
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even though there'd been many intervening events
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between 19 whatever year that was, it was,
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I forgot what year it was, but in the 40s
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and today including the new Geneva Convention,
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they just copied it.
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And even though some parts of that order
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had been held illegal they just copied it and said,
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we're gonna do it that way.
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Anyway so the lack of habeas corpus.
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And to me and what I said then
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is when you don't have habeas corpus
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you essentially have the trappings of a police state.
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So a police state is one in which the executive
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can take a person by the scruff of his neck
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and toss him into prison and never hear from them again,
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never give them a chance to go to court
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and make the decision totally as an executive decision.
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Yes, you can do that for 24 hours,
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you can do it for 48 hours,
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sometimes you can do it for three days,
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but can you do it indefinitely or forever?
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So in my view, that's the idea
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that you can test your detention in a court
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is a critical democratic right
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and it comes out of our structure of government
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but it is a critical democratic right.
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The other two provisions, which were,
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the most noticeable one, the one that got the most attention
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at that moment was the military commissions.
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And that was a huge issue in the country actually
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in fact even as I recall the times
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right one guy who recently died
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came out against the way that was provisioned.
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And that's the one that normally there's two sets of,
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there's two ways to try people.
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There's a regular criminal trial,
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or there's a military court-martial
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and both have a set of rules,
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they both have all kinds of due process,
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protections, et cetera.
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And then this one order set up what I would call a Third Way
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which is called the military commission,
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it's essentially a rum tribunal.
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It's one in which the rules are made up after the fact,
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after the acts, after the arrest
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and they're made up for the occasion.
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And whenever you have ad hoc rules,
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what you have is of course rules made by
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essentially the prosecutor and the executive
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and then they're very slanted in favor of prosecution.
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And military commissions hadn't been used in the country
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for 60 years, 50 years by then
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again it was the Ex Parte Quirin
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it was a case coming out of the Second World War
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just after the war.
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And there've been a lot of human rights law
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between Ex Parte Quirin and today and a lot of Supreme Court
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and other decisions that made military commissions
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really limited.
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They were already limited then, really limited now.
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So it looked to me like they were first denying
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the writ of habeas corpus,
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then they were setting up if they picked someone up
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a military commission for trying them
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and then of course it had incredibly draconian
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secrecy provisions and that had a death penalty
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and it had execution without a majority
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of the even handpicked military jury.
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So the scenario which wasn't fanciful
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was that people could be picked up,
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tried secretly in the military commission,
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sentenced to execution, executed and tossed off,
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you know some aircraft carrier.
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So essentially it was a completely secret system of justice
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that went against everything certainly
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not just that we've been taught in American law schools
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but everything in international law,
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everything on the Geneva Conventions,
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everything in really I mean,
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you know you could almost say it's time immemorial.
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I mean, it's just was unheard of.
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The provision that was not noticed as much
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was what I would call the indefinite
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preventive detention issue.
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People focused heavily on the trials
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and heavily on habeas as did we at the Center
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although we were aware of the other one
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and what the order actually said is the president
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as commander-in-chief can direct the secretary of defense
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to pick up any non-citizen later applied to citizens
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but any non-citizen anywhere in the world
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and hold them indefinitely forever
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until the president decided they would either go to trial
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or just be held.
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In other words they never had to be tried.
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So even though there's this trial quote trial system
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is a system in which they're held forever.
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So it's a long, it's forever detention without habeas again.
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So you're talking about, I've described it as essentially
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a coup d'etat in America.
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Which is to say it was the complete takeover
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of any kind of due process or judicial system
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or protection of a human being's
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or individual rights by one single person
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and that was the precedent and it just overthrew,
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00:17:03.280 --> 00:17:06.200
you know certainly 200 years of our own constitution
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and hundreds of years before then.
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[Male Interviewer] What were you thinking
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if that's what you saw that day, what were you thinking?
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00:17:13.330 --> 00:17:16.210
You know, now it's, unfortunately now today,
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00:17:16.210 --> 00:17:19.510
you know some parts of that order have become accepted,
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00:17:19.510 --> 00:17:22.210
but then it looked completely outside.
397
00:17:22.210 --> 00:17:23.780
It still looks that way to me,
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00:17:23.780 --> 00:17:26.010
but it then looks so far outside
399
00:17:26.010 --> 00:17:27.580
that it looked like we just had a dictator
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00:17:27.580 --> 00:17:30.040
taking over the country with the military to me.
401
00:17:30.040 --> 00:17:31.687
It was completely outside of any,
402
00:17:31.687 --> 00:17:33.990
I mean just the military order part itself
403
00:17:33.990 --> 00:17:35.890
was outside of anything for me.
404
00:17:35.890 --> 00:17:37.820
But the military commissions,
405
00:17:37.820 --> 00:17:39.600
I mean I thought I was living in another world.
406
00:17:39.600 --> 00:17:43.590
I just had no sense, you know and I'm not a naive person
407
00:17:43.590 --> 00:17:46.760
about this stuff I'm very skeptical of my government.
408
00:17:46.760 --> 00:17:50.190
And I just thought it was completely of anything
409
00:17:50.190 --> 00:17:53.260
I had seen and was utterly, utterly shocked by it.
410
00:17:53.260 --> 00:17:54.700
Now you have to understand
411
00:17:54.700 --> 00:17:58.150
the country was utterly shocked by 911 as were we all.
412
00:17:58.150 --> 00:18:01.010
And you know, I, my guess is it was felt
413
00:18:01.010 --> 00:18:02.440
that a lot could be gotten through
414
00:18:02.440 --> 00:18:05.320
by a president who wanted to,
415
00:18:05.320 --> 00:18:06.970
you know conceivably use 911
416
00:18:06.970 --> 00:18:09.810
as a means of increasing his own power
417
00:18:09.810 --> 00:18:11.310
or the power of the executive
418
00:18:12.560 --> 00:18:15.230
and that shocked to essentially do it
419
00:18:15.230 --> 00:18:17.580
and that's what I think we saw happening.
420
00:18:17.580 --> 00:18:20.300
So that means that that was our,
421
00:18:20.300 --> 00:18:24.570
so that was on the 14th of November.
422
00:18:24.570 --> 00:18:26.580
And you know we had a legal director there
423
00:18:26.580 --> 00:18:30.410
a wonderful guy named Bill Goodman, who my age lawyer
424
00:18:30.410 --> 00:18:31.990
out of Detroit now back in Detroit
425
00:18:31.990 --> 00:18:35.020
and quite a good, wonderful radical lawyer
426
00:18:35.020 --> 00:18:37.810
and Bill and I met about it and said,
427
00:18:37.810 --> 00:18:40.430
we're gonna, we just agreed we're gonna challenge it.
428
00:18:40.430 --> 00:18:43.000
And remember the times came by maybe the next day
429
00:18:43.000 --> 00:18:44.490
and they did an interview about it
430
00:18:44.490 --> 00:18:46.400
and it's still it's in there about saying
431
00:18:46.400 --> 00:18:48.470
we're gonna find the client to challenge it.
432
00:18:48.470 --> 00:18:52.050
And we raised it at the Center and, you know, first of all
433
00:18:52.050 --> 00:18:53.710
there was a big difference for us at the Center
434
00:18:53.710 --> 00:18:56.040
because the Center represents people
435
00:18:56.040 --> 00:18:57.780
who it's in general agreement with
436
00:18:59.640 --> 00:19:03.000
and obviously or not obviously but it seemed at that point
437
00:19:03.000 --> 00:19:05.140
particularly that the people who were to be picked up
438
00:19:05.140 --> 00:19:08.000
under this order were not people who stood for the values
439
00:19:08.000 --> 00:19:11.770
of progressive change that the Center was established for.
440
00:19:11.770 --> 00:19:15.140
And so that, you know, that became a somewhat
441
00:19:15.140 --> 00:19:17.420
I wouldn't say controversial would be too strong a word
442
00:19:17.420 --> 00:19:19.240
but it became an issue.
443
00:19:19.240 --> 00:19:21.220
And then the second thing was of course
444
00:19:21.220 --> 00:19:24.030
when you're in a nonprofit, how do you deal with the fact
445
00:19:24.030 --> 00:19:25.960
you may be very well and we had to assume
446
00:19:25.960 --> 00:19:27.560
we weren't gonna be representing
447
00:19:28.420 --> 00:19:30.730
some of the co-conspirators who were involved
448
00:19:30.730 --> 00:19:33.720
in setting up the plan, assuming it was that
449
00:19:33.720 --> 00:19:37.070
to fly planes into the World Trade Center.
450
00:19:37.070 --> 00:19:40.210
And one did we wanna be representing them?
451
00:19:40.210 --> 00:19:42.410
And secondly, what was gonna happen to our funding
452
00:19:42.410 --> 00:19:47.410
if we did that? And at the same time we also weren't sure,
453
00:19:47.460 --> 00:19:49.990
at that point it wasn't representing them in criminal cases.
454
00:19:49.990 --> 00:19:52.580
At that point the challenge that we had to undertake
455
00:19:52.580 --> 00:19:55.540
was getting them the right to habeas corpus
456
00:19:56.820 --> 00:19:59.030
and getting them at least the right to go to a court
457
00:19:59.030 --> 00:20:00.750
and say you can't pick me up like this
458
00:20:00.750 --> 00:20:02.950
and challenging the military order.
459
00:20:02.950 --> 00:20:06.660
It's not clear, well I don't think we drew a public division
460
00:20:06.660 --> 00:20:10.260
between us representing people as defense counsel or not,
461
00:20:10.260 --> 00:20:12.160
but certainly I think that was in our minds
462
00:20:12.160 --> 00:20:15.360
that it wasn't what we were not that I don't think we,
463
00:20:15.360 --> 00:20:16.780
some people would have objected to that
464
00:20:16.780 --> 00:20:18.630
I just think that's not what we were thinking.
465
00:20:18.630 --> 00:20:21.280
We said we're losing fundamental democratic rights.
466
00:20:21.280 --> 00:20:24.030
The right to habeas is just, you just can't do that
467
00:20:24.030 --> 00:20:25.560
and this military commission stuff
468
00:20:25.560 --> 00:20:27.780
and then of course the preventative detention stuff.
469
00:20:27.780 --> 00:20:31.130
So we decided after some debate we're gonna do it
470
00:20:31.130 --> 00:20:34.830
and my contribution to the debate was actually interesting.
471
00:20:34.830 --> 00:20:36.410
Bill Kunstler one of our founders
472
00:20:36.410 --> 00:20:38.570
the well-known civil rights lawyer
473
00:20:38.570 --> 00:20:41.500
had written an autobiography before he died on
474
00:20:41.500 --> 00:20:43.920
the case called the Central Park jogger case.
475
00:20:43.920 --> 00:20:45.810
That case had come and it was a concerned
476
00:20:45.810 --> 00:20:49.040
as quote wilding rape in Central Park
477
00:20:49.040 --> 00:20:52.970
by five or so young black men
478
00:20:52.970 --> 00:20:55.400
of a white woman in Central Park.
479
00:20:55.400 --> 00:20:57.190
And everybody assumed they were guilty.
480
00:20:57.190 --> 00:20:58.830
It took place in the 70s.
481
00:20:58.830 --> 00:21:01.530
And Donald Trump put a full-page ad in the paper saying
482
00:21:01.530 --> 00:21:04.480
give them the death penalty and Bill wound up representing
483
00:21:04.480 --> 00:21:08.690
on his own one of the young men Yusef Salaam.
484
00:21:08.690 --> 00:21:10.910
And he brought the case to the Center and the Center
485
00:21:10.910 --> 00:21:12.260
I don't think I was there at the moment,
486
00:21:12.260 --> 00:21:14.480
but turned down the case.
487
00:21:14.480 --> 00:21:16.300
Either because we didn't do criminal defense,
488
00:21:16.300 --> 00:21:17.730
it's not clear or because the guilt
489
00:21:17.730 --> 00:21:21.560
was just so well established that they weren't gonna do it.
490
00:21:21.560 --> 00:21:24.170
And Bill writes in his book how disappointed he was
491
00:21:24.170 --> 00:21:25.180
in the Center at that point
492
00:21:25.180 --> 00:21:27.410
which he founded not taking this case
493
00:21:27.410 --> 00:21:29.700
and Bill was ultimately sentenced to contempt on it,
494
00:21:29.700 --> 00:21:33.450
the kid was a juvenile, so he eventually got out
495
00:21:33.450 --> 00:21:36.120
at a reasonable age, but of course, you know,
496
00:21:36.120 --> 00:21:39.080
10 years after bill died the Central Park joggers
497
00:21:39.080 --> 00:21:41.520
were completely exonerated, false confessions,
498
00:21:41.520 --> 00:21:42.680
the whole business.
499
00:21:42.680 --> 00:21:44.410
So I took the pages of Bill's book
500
00:21:44.410 --> 00:21:45.887
and I circulate it to the staff at the Center
501
00:21:45.887 --> 00:21:47.880
and to the board probably
502
00:21:47.880 --> 00:21:51.021
and I said we're not making this mistake again.
503
00:21:51.021 --> 00:21:53.740
This is even, this is fundamental,
504
00:21:53.740 --> 00:21:56.253
we have to represent the first people,
505
00:21:57.451 --> 00:21:59.180
we have to represent and fight this order.
506
00:21:59.180 --> 00:22:01.510
And so that's how the Center started
507
00:22:01.510 --> 00:22:04.910
and from that little start, somehow,
508
00:22:04.910 --> 00:22:08.070
we started to put together a conference call
509
00:22:08.070 --> 00:22:10.190
around the country because there was a death penalty
510
00:22:10.190 --> 00:22:11.940
and there still is in Guantanamo,
511
00:22:11.940 --> 00:22:15.650
for Guantanamo for the violation of the laws forward
512
00:22:15.650 --> 00:22:17.580
and the way the US has looked at it.
513
00:22:17.580 --> 00:22:19.880
And so we picked up some death penalty lawyers
514
00:22:20.790 --> 00:22:23.220
who you know, death penalty lawyers are different
515
00:22:23.220 --> 00:22:24.053
than the Center.
516
00:22:24.053 --> 00:22:26.190
I mean, we would represent people on a death penalty
517
00:22:26.190 --> 00:22:28.150
but they, they don't you know,
518
00:22:28.150 --> 00:22:30.350
they're the people who you know a guy goes in
519
00:22:30.350 --> 00:22:33.880
and slaughters a family they're against the death penalty,
520
00:22:33.880 --> 00:22:35.900
they're gonna represent them, their defense counsel.
521
00:22:35.900 --> 00:22:38.060
And so for them the issue that came up at the Center
522
00:22:38.060 --> 00:22:40.160
about the politics of it are not important.
523
00:22:40.160 --> 00:22:42.830
So they came out, you know and good conference call
524
00:22:42.830 --> 00:22:46.020
and Joe Margolis was one, Clive Stafford Smith
525
00:22:46.020 --> 00:22:48.540
who ran the death penalty project in Louisiana
526
00:22:48.540 --> 00:22:49.870
was the second.
527
00:22:49.870 --> 00:22:53.970
And those were the, those were the core
528
00:22:53.970 --> 00:22:58.970
eventually became Joe, Clive and myself at the Center
529
00:22:59.190 --> 00:23:01.320
were the three earliest
530
00:23:01.320 --> 00:23:02.970
and then there were people on the side,
531
00:23:02.970 --> 00:23:05.800
Eric Friedman came in as a habeas expert,
532
00:23:05.800 --> 00:23:10.650
Tom Wilner came in a few weeks later with the Kuwaitis,
533
00:23:10.650 --> 00:23:13.240
the conference call consisted of a broader group for awhile,
534
00:23:13.240 --> 00:23:14.810
people who were expert on the death penalties,
535
00:23:14.810 --> 00:23:18.050
people from LDF Legal Defense Fund, some other places,
536
00:23:18.050 --> 00:23:21.477
but ultimately it came down to Joe
537
00:23:21.477 --> 00:23:23.160
who had criminal experience,
538
00:23:23.160 --> 00:23:24.650
death penalty experience and habeas,
539
00:23:24.650 --> 00:23:27.770
Clive who obviously had huge death penalty experience
540
00:23:27.770 --> 00:23:30.910
and Eric who had huge habeas experience.
541
00:23:30.910 --> 00:23:32.500
And there were series of meetings
542
00:23:32.500 --> 00:23:34.910
that started at the Center primarily
543
00:23:34.910 --> 00:23:36.610
about how to do these cases.
544
00:23:36.610 --> 00:23:38.960
There wasn't a case yet, we didn't have a case.
545
00:23:39.997 --> 00:23:41.660
[Male Interviewer] So if I'm understanding you
546
00:23:41.660 --> 00:23:44.500
you brought these other men in that in fact,
547
00:23:44.500 --> 00:23:47.740
Clive and Joe hadn't really been thinking about this
548
00:23:47.740 --> 00:23:48.573
and you call them up.
549
00:23:48.573 --> 00:23:49.870
I don't think that's correct no, no.
550
00:23:49.870 --> 00:23:52.470
I think they had independently been thinking about it.
551
00:23:52.470 --> 00:23:55.120
And probably when, whoever we brought in
552
00:23:55.120 --> 00:23:56.880
somehow knew about them thinking about it,
553
00:23:56.880 --> 00:24:00.020
or they probably read the article in the Times actually.
554
00:24:00.020 --> 00:24:03.490
Because that came out within a couple of days of the order.
555
00:24:03.490 --> 00:24:05.580
So, no I think Joe and Clive
556
00:24:05.580 --> 00:24:07.600
were already on this without us.
557
00:24:07.600 --> 00:24:09.590
I never knew Joe and Clive, I mean Clive I knew vaguely but,
558
00:24:09.590 --> 00:24:11.693
no, no I think they were there.
559
00:24:12.873 --> 00:24:14.040
[Male Interviewer] And they left their jobs
560
00:24:14.040 --> 00:24:15.423
to join with you is that correct?
561
00:24:15.423 --> 00:24:17.760
Well Clive kept this job for a long time
562
00:24:17.760 --> 00:24:20.710
at the Louisiana Death Penalty Project.
563
00:24:20.710 --> 00:24:23.970
And Joe who sort of had an independent civil rights
564
00:24:23.970 --> 00:24:25.260
practice kept that.
565
00:24:25.260 --> 00:24:26.370
I mean, whatever he did with it
566
00:24:26.370 --> 00:24:28.270
he had a practice in Minneapolis.
567
00:24:28.270 --> 00:24:30.900
So he kept going on that and you know,
568
00:24:30.900 --> 00:24:34.860
the first couple of years were very intense work by,
569
00:24:34.860 --> 00:24:36.550
you know by that group more or less,
570
00:24:36.550 --> 00:24:38.820
I mean Clive tended to be less of a,
571
00:24:38.820 --> 00:24:41.640
Clive doesn't, I don't think, courts are not his thing.
572
00:24:41.640 --> 00:24:44.090
I mean they're his thing in a way, but not writing briefs.
573
00:24:44.090 --> 00:24:47.283
Joe likes to write briefs, Joel likes to do all that.
574
00:24:47.283 --> 00:24:51.810
But Clive lead us really and do a lot of that.
575
00:24:51.810 --> 00:24:54.220
Joe taking a very important role in that.
576
00:24:55.545 --> 00:24:57.350
You know Clive's a trial guy
577
00:24:57.350 --> 00:24:58.457
and a very good, I mean amazing we all,
578
00:24:58.457 --> 00:25:00.140
so we all learned a lot and then we had
579
00:25:00.140 --> 00:25:03.613
you know a group of experts and we didn't have a client.
580
00:25:05.830 --> 00:25:06.991
So if you want me to talk about that I can.
581
00:25:06.991 --> 00:25:08.690
[Male Interviewer] I do so you saw yourself
582
00:25:08.690 --> 00:25:10.640
creating a corps thinking your client
583
00:25:10.640 --> 00:25:13.637
would be coming in your door soon.
584
00:25:13.637 --> 00:25:14.820
I mean essentially that's-
585
00:25:14.820 --> 00:25:17.940
Right we got out the word we put out the Times piece
586
00:25:17.940 --> 00:25:20.760
and some other things and, you know we didn't know,
587
00:25:20.760 --> 00:25:23.860
we had no idea who was gonna be picked up first.
588
00:25:23.860 --> 00:25:26.080
We didn't know, we thought it would probably wind up more
589
00:25:26.080 --> 00:25:28.770
as representation in front of a military commission
590
00:25:29.670 --> 00:25:32.100
and maybe on a habeas maybe we didn't,
591
00:25:32.100 --> 00:25:34.880
you know, we weren't really focused on preventive detention
592
00:25:34.880 --> 00:25:36.440
if that's what they call it or whatever
593
00:25:36.440 --> 00:25:37.900
then it wasn't called that in the order
594
00:25:37.900 --> 00:25:40.893
but then the long-term detention without trial.
595
00:25:42.674 --> 00:25:44.080
[Male Interviewer] You we're preparing for something
596
00:25:44.080 --> 00:25:45.550
and you had this corps.
597
00:25:45.550 --> 00:25:47.670
Right and we started, when we read the cases
598
00:25:47.670 --> 00:25:49.350
we started off with the,
599
00:25:49.350 --> 00:25:50.580
you know when we had some of the people on the phone
600
00:25:50.580 --> 00:25:51.580
they said you don't have a chance.
601
00:25:51.580 --> 00:25:53.870
I mean you read Eisentrager you don't have a chance.
602
00:25:53.870 --> 00:25:55.997
I mean you can read it, it's a very broad case
603
00:25:55.997 --> 00:25:58.890
and we all had 18 different ways to talk about it,
604
00:25:58.890 --> 00:26:01.263
but it's a strong case against us.
605
00:26:02.380 --> 00:26:04.970
And so Eisentrager was very bad,
606
00:26:04.970 --> 00:26:06.653
I mean Quirin wasn't great,
607
00:26:07.670 --> 00:26:12.670
so we and you have an environment that was very bad.
608
00:26:13.050 --> 00:26:15.440
I mean, you know I mean, you know when we got out the word
609
00:26:15.440 --> 00:26:17.950
I mean, I don't know whether I started doing interviews
610
00:26:17.950 --> 00:26:20.450
before we had a client or after,
611
00:26:20.450 --> 00:26:22.450
but certainly with within a few weeks
612
00:26:22.450 --> 00:26:24.610
of our getting a client
613
00:26:24.610 --> 00:26:26.150
or you know between that period of November
614
00:26:26.150 --> 00:26:30.670
and January 11th when Guantanamo opened of 2002,
615
00:26:30.670 --> 00:26:34.080
I had hundreds of Hayden Miles I mean literally hundreds.
616
00:26:34.080 --> 00:26:36.800
Oh no it was like extreme,
617
00:26:36.800 --> 00:26:40.970
you know take your children to Afghanistan
618
00:26:42.507 --> 00:26:44.200
and let the Taliban eat them.
619
00:26:44.200 --> 00:26:46.930
I mean, you know or go be a guard yourself
620
00:26:46.930 --> 00:26:49.390
whatever it is there were just hundreds.
621
00:26:49.390 --> 00:26:54.390
Oh sure, sure, tons of it, hundreds of them.
622
00:26:54.640 --> 00:26:58.290
And every, within every minute of a TV appearance
623
00:26:58.290 --> 00:27:00.840
there was you know, I would have a Blackberry with me
624
00:27:00.840 --> 00:27:03.060
and there'd be emails coming in just saying,
625
00:27:03.060 --> 00:27:05.060
you know kill you and all this kind of stuff.
626
00:27:05.060 --> 00:27:07.380
So, no it was a period in the country
627
00:27:07.380 --> 00:27:09.580
that this was a real uphill battle.
628
00:27:09.580 --> 00:27:12.040
And an interesting part of this is of course
629
00:27:12.040 --> 00:27:14.270
we tried to get other human rights groups.
630
00:27:14.270 --> 00:27:15.460
I mean that's why I sort of mentioned
631
00:27:15.460 --> 00:27:16.700
the death penalty guys.
632
00:27:16.700 --> 00:27:18.860
Other human rights groups wouldn't touch this thing.
633
00:27:18.860 --> 00:27:20.970
This is part of a and it's become public now
634
00:27:20.970 --> 00:27:22.500
so I don't mind talking about it
635
00:27:22.500 --> 00:27:24.760
but we tried to get the ACLU and they wouldn't do it.
636
00:27:24.760 --> 00:27:27.290
And that became a big controversy among the board
637
00:27:27.290 --> 00:27:28.920
and others at the ACLU.
638
00:27:28.920 --> 00:27:31.140
And I remember going to a meeting with a friend of mine
639
00:27:31.140 --> 00:27:33.470
from the ACLU and we had a big audience up at Columbia
640
00:27:33.470 --> 00:27:35.083
maybe a year after the cases.
641
00:27:35.930 --> 00:27:37.190
And we talked about why they didn't take it
642
00:27:37.190 --> 00:27:38.900
and they said there were two reasons,
643
00:27:38.900 --> 00:27:41.440
They said we thought we were gonna create bad precedent
644
00:27:41.440 --> 00:27:43.510
because there was no way you could win it
645
00:27:43.510 --> 00:27:45.440
and secondly our funding.
646
00:27:45.440 --> 00:27:48.990
And I remember a Muslim woman getting up and saying,
647
00:27:48.990 --> 00:27:50.530
you know thank God for you guys
648
00:27:50.530 --> 00:27:52.780
because while our doors are being torn down
649
00:27:52.780 --> 00:27:54.740
they're worried about bad precedent.
650
00:27:54.740 --> 00:27:56.590
I mean ACLU was terrific now it's as good
651
00:27:56.590 --> 00:27:58.330
or aggressive as we are,
652
00:27:58.330 --> 00:28:00.860
but they had an early rough period on this,
653
00:28:00.860 --> 00:28:03.650
you know partly conceivably Anthony was new,
654
00:28:03.650 --> 00:28:05.590
he was only there a few months
655
00:28:05.590 --> 00:28:08.920
and you know it was not so easy to take these cases.
656
00:28:08.920 --> 00:28:10.950
So if I feel really good about one decision
657
00:28:10.950 --> 00:28:14.781
the Center made it was that one, but no other groups,
658
00:28:14.781 --> 00:28:17.940
I forgot who else we contacted would come
659
00:28:17.940 --> 00:28:19.660
and so we got death penalty lawyers,
660
00:28:19.660 --> 00:28:21.794
which you know you would expect.
661
00:28:21.794 --> 00:28:23.930
[Male Interviewer] Did you feel isolated in the community?
662
00:28:23.930 --> 00:28:26.930
So did you feel like you, you know you had a mission
663
00:28:26.930 --> 00:28:27.763
and you were just gonna-
664
00:28:27.763 --> 00:28:30.890
Well we were isolated, we were isolated
665
00:28:30.890 --> 00:28:34.373
I think probably we got, no, I'm not saying we lost,
666
00:28:35.419 --> 00:28:37.050
we may have lost some funding in the beginning,
667
00:28:37.050 --> 00:28:41.733
we got certainly phone calls about it from funders.
668
00:28:43.480 --> 00:28:44.970
You know compared to where we started
669
00:28:44.970 --> 00:28:47.790
to where it's become today is, you know night and day,
670
00:28:47.790 --> 00:28:49.740
it's become you know it's now like it's
671
00:28:50.670 --> 00:28:52.817
big firm work now you know.
672
00:28:52.817 --> 00:28:54.450
[Male Interviewer] I wanna go into how you got involved
673
00:28:54.450 --> 00:28:56.120
in the actual Guantanamo litigation
674
00:28:56.120 --> 00:28:59.570
but just as an aside that John Walker Lindh's family
675
00:28:59.570 --> 00:29:00.820
come to you at all?
676
00:29:00.820 --> 00:29:03.547
No John was going on right during that period.
677
00:29:03.547 --> 00:29:05.260
[Male Interviewer] I know, I'm just wondering why
678
00:29:05.260 --> 00:29:06.750
they didn't go to you.
679
00:29:06.750 --> 00:29:08.790
You know, I don't know they, well they had Brosnahan
680
00:29:08.790 --> 00:29:10.643
out in California who's you know,
681
00:29:11.640 --> 00:29:14.303
he's one of the most important California attorneys,
682
00:29:14.303 --> 00:29:17.210
they're a California family so,
683
00:29:17.210 --> 00:29:18.940
you know I presume and they also probably
684
00:29:18.940 --> 00:29:21.610
wanted to play it straighter than the Center.
685
00:29:21.610 --> 00:29:23.350
The Center is a left-wing organization
686
00:29:23.350 --> 00:29:25.840
so I'm not sure that would have wanted
687
00:29:25.840 --> 00:29:26.943
to come to the Center.
688
00:29:28.068 --> 00:29:29.560
[Male Interviewer] So could you go on Michael
689
00:29:29.560 --> 00:29:33.570
and tell us then how you moved into Guantanamo then.
690
00:29:33.570 --> 00:29:35.870
I think there were two sets of cases coming.
691
00:29:37.451 --> 00:29:41.447
The first case that we got was David Hicks from Australia.
692
00:29:45.680 --> 00:29:49.230
And we read in the paper one day,
693
00:29:49.230 --> 00:29:52.030
I don't remember what day, whether it was late December,
694
00:29:53.100 --> 00:29:54.730
that he was picked up
695
00:29:54.730 --> 00:29:56.380
and you know they had a bad picture of him
696
00:29:56.380 --> 00:29:59.100
with a rocket launcher on a shoulder and he was picked up
697
00:29:59.100 --> 00:30:01.690
and I mean that picture was from Afghanistan,
698
00:30:01.690 --> 00:30:04.010
from Bosnia when he was actually fighting
699
00:30:04.010 --> 00:30:05.533
on the same side as the US.
700
00:30:06.790 --> 00:30:09.547
But it was a bad picture and they picked it
701
00:30:09.547 --> 00:30:12.980
and he was known as I guess he was called a Turkey skinner
702
00:30:12.980 --> 00:30:15.080
or something kangaroo skinner.
703
00:30:15.080 --> 00:30:19.680
So we see this guy David Hicks, we know nothing about him
704
00:30:19.680 --> 00:30:21.000
except he's Australian,
705
00:30:21.000 --> 00:30:23.200
but they mentioned the name of his attorney,
706
00:30:24.410 --> 00:30:27.380
I have to cut the name I know him really well,
707
00:30:27.380 --> 00:30:29.270
the guy in Australia a good friend of mine.
708
00:30:29.270 --> 00:30:31.737
Now he's a friend of mine but, anyway I'll get it.
709
00:30:31.737 --> 00:30:35.720
Anyway so I see the name of the attorney in the newspaper
710
00:30:35.720 --> 00:30:39.000
and I just I find his address in Melbourne
711
00:30:39.000 --> 00:30:40.280
and I just give him a ring
712
00:30:40.280 --> 00:30:42.420
and I say we'd like to represent David Hicks.
713
00:30:42.420 --> 00:30:43.860
I mean I talked to Joe and say
714
00:30:43.860 --> 00:30:44.920
it's like Joe I'm gonna call him
715
00:30:44.920 --> 00:30:47.240
and I would to represent Hicks.
716
00:30:47.240 --> 00:30:50.090
And he asks us who we are and what we do
717
00:30:50.090 --> 00:30:51.830
and what we're planning to do on habeas
718
00:30:51.830 --> 00:30:53.360
and all this kinda stuff.
719
00:30:53.360 --> 00:30:55.020
And I explained it to him and everything like that
720
00:30:55.020 --> 00:30:57.587
and then he, you know the Center has by that point
721
00:30:57.587 --> 00:31:01.090
is that I had decent reputation on this kinda work.
722
00:31:01.090 --> 00:31:05.800
So he agrees basically that we can represent
723
00:31:08.030 --> 00:31:10.470
Hicks on a habeas case.
724
00:31:10.470 --> 00:31:12.360
So that's the first case.
725
00:31:12.360 --> 00:31:14.190
Now, at that point we're still thinking
726
00:31:14.190 --> 00:31:15.160
I don't know how much detail you want,
727
00:31:15.160 --> 00:31:17.080
we're still thinking that Hicks is held
728
00:31:17.080 --> 00:31:20.450
under the Military Order or Executive Order,
729
00:31:20.450 --> 00:31:22.090
Military Order Number One
730
00:31:22.090 --> 00:31:24.890
and they actually sent a note to the,
731
00:31:24.890 --> 00:31:29.890
Americans had sent a note to the Australian Embassy
732
00:31:30.290 --> 00:31:32.480
that they had David Hicks an Australian citizen
733
00:31:32.480 --> 00:31:35.650
and he was being held under Military Order Number One.
734
00:31:35.650 --> 00:31:36.740
We drafted the papers
735
00:31:36.740 --> 00:31:38.960
as if it was under Military Order Number One,
736
00:31:38.960 --> 00:31:41.950
it was in the side eventually they just said, no, no
737
00:31:41.950 --> 00:31:43.280
forget about the military order
738
00:31:43.280 --> 00:31:45.090
and that's of course why he got Americans picked up
739
00:31:45.090 --> 00:31:48.630
and everything this is just under the president's power
740
00:31:48.630 --> 00:31:50.760
to fight a war I mean period.
741
00:31:50.760 --> 00:31:53.360
This is not about orders or anything,
742
00:31:53.360 --> 00:31:55.570
the president has inherent constitutional power
743
00:31:55.570 --> 00:31:57.980
to pick up you know enemy combatants,
744
00:31:57.980 --> 00:31:59.480
as whatever they call them at that point
745
00:31:59.480 --> 00:32:01.070
but enemy combatants.
746
00:32:01.070 --> 00:32:03.150
So that was David and that was,
747
00:32:03.150 --> 00:32:06.120
so that would be January 11th he was taking to Guantanamo
748
00:32:06.120 --> 00:32:09.150
so within a few days of that we were representing David.
749
00:32:09.150 --> 00:32:12.393
And then Clive actually because of his English connections,
750
00:32:13.320 --> 00:32:16.360
his English lawyers as well as American
751
00:32:16.360 --> 00:32:17.940
had a couple of other English people
752
00:32:17.940 --> 00:32:22.623
picked up very soon thereafter which were Rasul and-
753
00:32:23.544 --> 00:32:24.377
[Male Interviewer] Asif
754
00:32:24.377 --> 00:32:25.720
Asif right, they were three of them,
755
00:32:25.720 --> 00:32:27.220
right three of them picked up.
756
00:32:28.930 --> 00:32:31.400
And so that was the beginning of the case.
757
00:32:31.400 --> 00:32:34.030
And we drafted, you know we were thinking of how to draft
758
00:32:34.030 --> 00:32:36.120
the habeas papers and what to do about it
759
00:32:36.120 --> 00:32:39.610
and you know we had all kinds, I don't know,
760
00:32:39.610 --> 00:32:41.230
illegally you're interested in all this stuff,
761
00:32:41.230 --> 00:32:42.620
but you know these questions
762
00:32:42.620 --> 00:32:43.990
about whether you make it a habeas
763
00:32:43.990 --> 00:32:45.250
or whether you make it as Tom said,
764
00:32:45.250 --> 00:32:46.083
we don't wanna make it a habeas
765
00:32:46.083 --> 00:32:48.500
we wanna make a straight direct litigation
766
00:32:48.500 --> 00:32:51.530
and to what extent international law would come in
767
00:32:51.530 --> 00:32:54.530
and Geneva and you know that kind of thing.
768
00:32:54.530 --> 00:32:57.300
And because that was my area more was Geneva
769
00:32:57.300 --> 00:32:59.870
and arbitrary detention and all that so
770
00:32:59.870 --> 00:33:02.740
I probably drafted that part and how we eventually
771
00:33:02.740 --> 00:33:04.600
and who we decided would be lead plaintiff of course
772
00:33:04.600 --> 00:33:07.570
we didn't want, we I don't know who but we,
773
00:33:07.570 --> 00:33:09.400
I'm tending to be less worried about this
774
00:33:09.400 --> 00:33:10.890
but Hicks was not the name plaintiff
775
00:33:10.890 --> 00:33:12.850
that's why it's called Rasul,
776
00:33:12.850 --> 00:33:14.180
because we didn't want a picture of a guy
777
00:33:14.180 --> 00:33:16.610
with a rocket launcher as the lead plaintiff.
778
00:33:16.610 --> 00:33:20.600
So there were all kinds of decisions made like that
779
00:33:20.600 --> 00:33:23.700
and one interesting part of that,
780
00:33:23.700 --> 00:33:25.450
just to jumping in for a second we could not,
781
00:33:25.450 --> 00:33:28.010
I had trouble getting a, we had a file in Washington
782
00:33:28.010 --> 00:33:30.853
which is where you can file these kinda cases.
783
00:33:32.260 --> 00:33:34.250
There were lots of little issues like we couldn't,
784
00:33:34.250 --> 00:33:36.330
we didn't know, David Hicks never knew anything about us,
785
00:33:36.330 --> 00:33:37.340
we couldn't contact him,
786
00:33:37.340 --> 00:33:39.020
we weren't allowed to communicate.
787
00:33:39.020 --> 00:33:41.060
He's at Guantanamo with no idea,
788
00:33:41.060 --> 00:33:43.780
so we represent his father who is called the next friend
789
00:33:43.780 --> 00:33:45.470
you're allowed to do that in habeas.
790
00:33:45.470 --> 00:33:47.060
But so he never knew about the litigation
791
00:33:47.060 --> 00:33:49.120
unless it got snuck to him somehow by a guard
792
00:33:49.120 --> 00:33:51.073
or something we don't think he did.
793
00:33:52.417 --> 00:33:56.230
So we have a father and then we have to decide
794
00:33:56.230 --> 00:33:58.033
what was the point I wanted to make there,
795
00:33:59.090 --> 00:34:01.060
anyway so that, so we had to get a local counsel
796
00:34:01.060 --> 00:34:01.980
to file in Washington.
797
00:34:01.980 --> 00:34:03.170
Joe is not a local counsel,
798
00:34:03.170 --> 00:34:05.680
I'm not a local counsel and neither is Clive.
799
00:34:05.680 --> 00:34:08.440
And so I try and get a local counsel
800
00:34:08.440 --> 00:34:09.920
from the National Lawyers Guild.
801
00:34:09.920 --> 00:34:10.960
I didn't try a lot of people
802
00:34:10.960 --> 00:34:12.590
but I tried a few and I couldn't get one.
803
00:34:12.590 --> 00:34:15.970
It was because it was so, the case was so controversial.
804
00:34:15.970 --> 00:34:17.570
And that's, you know people are afraid
805
00:34:17.570 --> 00:34:20.360
of attracting all this negative publicity.
806
00:34:20.360 --> 00:34:21.820
And finally, Joe knew somebody
807
00:34:21.820 --> 00:34:22.957
I think Barry Boss was his name
808
00:34:22.957 --> 00:34:25.810
was sort of straight criminal lawyer, good one.
809
00:34:25.810 --> 00:34:27.030
We went down and we did that.
810
00:34:27.030 --> 00:34:28.560
But we also had, during this period
811
00:34:28.560 --> 00:34:32.660
is when Tom Wilner and Sherman Sterling
812
00:34:32.660 --> 00:34:35.920
also got involved which you know in retrospect
813
00:34:35.920 --> 00:34:36.990
is quite remarkable.
814
00:34:36.990 --> 00:34:39.200
I mean you know it was the Kuwaitis
815
00:34:39.200 --> 00:34:40.610
and maybe there were all kinds of things,
816
00:34:40.610 --> 00:34:42.730
you know connections because of,
817
00:34:42.730 --> 00:34:45.130
you know Tom's representation of,
818
00:34:45.130 --> 00:34:47.690
I think he represented either OPEC or something
819
00:34:47.690 --> 00:34:51.870
some oil stuff at some point so maybe there was some reason
820
00:34:51.870 --> 00:34:55.060
but it was not easy for Tom I would not say that at all.
821
00:34:55.060 --> 00:34:58.100
I think you know it was probably a quite a courageous act
822
00:34:58.100 --> 00:34:59.723
in that period.
823
00:35:00.720 --> 00:35:04.840
And we had our first meeting that Joe and I and Clive
824
00:35:04.840 --> 00:35:05.950
and I don't know who else came down
825
00:35:05.950 --> 00:35:07.760
but the three of us and maybe Eric
826
00:35:07.760 --> 00:35:09.430
went down to their office in Washington
827
00:35:09.430 --> 00:35:11.366
and of course you know my office is okay
828
00:35:11.366 --> 00:35:13.630
I mean it's a linoleum you know carpet
829
00:35:13.630 --> 00:35:16.750
and you know low ceilings
830
00:35:16.750 --> 00:35:19.300
and you know Celotex or whatever they call it.
831
00:35:19.300 --> 00:35:20.640
Their office of course is all marble
832
00:35:20.640 --> 00:35:22.550
from the first minute you get in.
833
00:35:22.550 --> 00:35:24.670
And they're sitting there with Tom
834
00:35:24.670 --> 00:35:26.410
and another couple of lawyers
835
00:35:26.410 --> 00:35:29.790
and about five young lawyers in a big conference room
836
00:35:29.790 --> 00:35:32.930
and here's, you know Clive look scruffy completely,
837
00:35:32.930 --> 00:35:35.830
Joe looks a little better and I look, you know in between.
838
00:35:37.398 --> 00:35:39.800
And you know and they obviously didn't know anything
839
00:35:39.800 --> 00:35:41.190
about this area at all.
840
00:35:41.190 --> 00:35:42.910
Nothing, nothing about habeas,
841
00:35:42.910 --> 00:35:44.340
nothing about the Alien Tort Statute,
842
00:35:44.340 --> 00:35:46.880
nothing about international law, nothing about Geneva
843
00:35:46.880 --> 00:35:49.430
and so they really needed us.
844
00:35:49.430 --> 00:35:53.390
I mean, they had no idea there's some,
845
00:35:53.390 --> 00:35:55.280
I mean Tom is smart enough and aggressive enough
846
00:35:55.280 --> 00:35:57.620
he was gonna figure it out, but no idea.
847
00:35:57.620 --> 00:36:00.390
So it turned out to be actually a very good meeting.
848
00:36:00.390 --> 00:36:03.250
I mean, partly 'cause they really just tried to
849
00:36:03.250 --> 00:36:05.260
you know pump us for all our information
850
00:36:05.260 --> 00:36:07.400
and of course there was this issue about the fact
851
00:36:07.400 --> 00:36:09.360
whether you could really bring habeas
852
00:36:09.360 --> 00:36:11.100
after Eisentrager and that's when Tom
853
00:36:11.100 --> 00:36:13.670
came up with this theory I'll call it something else.
854
00:36:13.670 --> 00:36:18.380
I mean, I think Tom would make that decision
855
00:36:18.380 --> 00:36:20.120
probably no matter what right now,
856
00:36:20.120 --> 00:36:21.320
but I thought it was ridiculous.
857
00:36:21.320 --> 00:36:23.030
I mean, I'm an experienced litigator
858
00:36:23.030 --> 00:36:25.790
and the idea that you think you could trick the court
859
00:36:25.790 --> 00:36:27.330
by putting a different label on the papers
860
00:36:27.330 --> 00:36:29.290
I thought it was just and then of course,
861
00:36:29.290 --> 00:36:30.530
as soon as the oral argument happened
862
00:36:30.530 --> 00:36:32.560
it was over in like two seconds.
863
00:36:32.560 --> 00:36:35.110
But it was an idea and why not there're two papers?
864
00:36:35.110 --> 00:36:37.160
And we decided to file separately
865
00:36:37.160 --> 00:36:42.160
although they were gonna be joint cases and-
866
00:36:42.821 --> 00:36:45.003
[Male Interviewer] What was the mood among all of you?
867
00:36:45.003 --> 00:36:46.560
What kinda, what was the mood? Was it upbeat?
868
00:36:46.560 --> 00:36:48.650
Was it just serious lawyering?
869
00:36:48.650 --> 00:36:52.140
What were people thinking that early post-911
870
00:36:52.140 --> 00:36:53.900
you know litigation?
871
00:36:53.900 --> 00:36:56.810
It was, I think, I don't, you know it's interesting
872
00:36:56.810 --> 00:36:59.120
what Tom felt might be different than what others felt.
873
00:36:59.120 --> 00:37:03.300
Certainly, I think most of us felt was hopeless.
874
00:37:03.300 --> 00:37:06.740
Most of us thought that there was no way
875
00:37:08.600 --> 00:37:10.070
certainly the district court judge
876
00:37:10.070 --> 00:37:11.943
was gonna distinguish Eisentrager.
877
00:37:13.590 --> 00:37:17.500
And particularly a circuit judge is unlikely
878
00:37:17.500 --> 00:37:18.980
and the Supreme Court I think most people
879
00:37:18.980 --> 00:37:20.380
were very pessimistic.
880
00:37:20.380 --> 00:37:22.010
I don't, you know i wanna speak for Joe
881
00:37:22.010 --> 00:37:24.210
who was more optimistic once we,
882
00:37:24.210 --> 00:37:25.823
on the cert. grant than I was.
883
00:37:27.020 --> 00:37:30.250
And Tom I, Tom just saw this thing,
884
00:37:30.250 --> 00:37:31.980
you know as sort of black and white,
885
00:37:31.980 --> 00:37:32.813
how did they mean they can't have been an attorney?
886
00:37:32.813 --> 00:37:34.980
You know this is like crazy.
887
00:37:34.980 --> 00:37:39.020
So I probably coming, that I think, to that extent
888
00:37:39.020 --> 00:37:42.750
my long political experience probably was not helpful.
889
00:37:42.750 --> 00:37:44.850
That it probably made me more cynical
890
00:37:44.850 --> 00:37:47.190
of ever getting anywhere in this case
891
00:37:47.190 --> 00:37:51.917
than perhaps Joe or Tom, it's possible I don't know.
892
00:37:51.917 --> 00:37:53.920
[Male Interviewer] If you thought it is hopeless
893
00:37:53.920 --> 00:37:55.727
given your belief in the American system
894
00:37:55.727 --> 00:37:59.640
and the rule of law and you so fervent about it,
895
00:37:59.640 --> 00:38:01.920
what does that mean to you that at that point
896
00:38:01.920 --> 00:38:03.520
you're thinking, you know you said earlier
897
00:38:03.520 --> 00:38:04.353
that you thought maybe
898
00:38:04.353 --> 00:38:06.560
there was a military dictatorship forming
899
00:38:06.560 --> 00:38:09.287
with this November 13th order.
900
00:38:09.287 --> 00:38:14.248
I mean is that still kind of the mood going on?
901
00:38:14.248 --> 00:38:16.760
I mean I think things have fundamentally changed
902
00:38:16.760 --> 00:38:17.610
since 911.
903
00:38:17.610 --> 00:38:22.610
I mean, I think, you know I think certain democratic rights
904
00:38:22.750 --> 00:38:26.720
have been destroyed and I don't see them coming back.
905
00:38:26.720 --> 00:38:30.380
I mean, the idea that we can treat it as an act of war,
906
00:38:30.380 --> 00:38:32.580
that we can use preventive detention,
907
00:38:32.580 --> 00:38:34.410
that we can set up military commissions,
908
00:38:34.410 --> 00:38:36.250
I find it abominable, I can't even like,
909
00:38:36.250 --> 00:38:38.210
I don't even, I can't,
910
00:38:38.210 --> 00:38:39.670
I don't even know what to say about it.
911
00:38:39.670 --> 00:38:41.340
I can't and I don't understand
912
00:38:42.399 --> 00:38:44.490
how it's been allowed to continue.
913
00:38:44.490 --> 00:38:48.640
I just it's completely alien to me
914
00:38:48.640 --> 00:38:50.360
and I don't and with no purpose.
915
00:38:50.360 --> 00:38:52.470
So I really feel, you know you can put it
916
00:38:52.470 --> 00:38:54.740
into a broader analysis of declining empire
917
00:38:54.740 --> 00:38:57.450
and all this, but whatever the analysis is,
918
00:38:57.450 --> 00:38:59.360
something has changed fundamentally
919
00:38:59.360 --> 00:39:01.040
about our judicial system.
920
00:39:01.040 --> 00:39:02.780
And, you know I always used to mouth
921
00:39:02.780 --> 00:39:04.130
and I don't know if it'll be true or not
922
00:39:04.130 --> 00:39:05.810
but they're reading about the Irish
923
00:39:05.810 --> 00:39:07.670
you know in the Diplock courts and all that
924
00:39:07.670 --> 00:39:10.640
and Helena Kennedy stuff, you know to what extent
925
00:39:10.640 --> 00:39:13.940
that will then creep into the regular system of justice
926
00:39:13.940 --> 00:39:16.670
we have whether and you know so if you combine
927
00:39:16.670 --> 00:39:19.190
a preventative detention military commission's,
928
00:39:19.190 --> 00:39:24.110
you know state secrets, you know these all torture
929
00:39:24.110 --> 00:39:26.330
which has been allowed to flourish without,
930
00:39:26.330 --> 00:39:28.460
I mean you've talked about a real significant,
931
00:39:28.460 --> 00:39:31.990
a fundamental change in American liberties
932
00:39:31.990 --> 00:39:35.900
and not one that will quote pendulum swing back,
933
00:39:35.900 --> 00:39:36.740
it's not happening.
934
00:39:36.740 --> 00:39:39.960
You have Obama now, nothing is sworn at all
935
00:39:39.960 --> 00:39:42.940
and I you know maybe do we wait 30 years
936
00:39:42.940 --> 00:39:44.300
like in Pinochet I don't know.
937
00:39:44.300 --> 00:39:47.113
And if you look at Garzon in Spain it's still from the,
938
00:39:47.113 --> 00:39:49.973
anyway but the point is that I think I would say
939
00:39:49.973 --> 00:39:52.100
that there's been a fundamental shift.
940
00:39:52.100 --> 00:39:55.100
On the other hand the fact that we were able to
941
00:39:55.100 --> 00:39:58.410
keep a toehold of habeas is quite significant.
942
00:39:58.410 --> 00:40:01.990
I mean I, that was 2000, Boumediene was 2000,
943
00:40:01.990 --> 00:40:05.340
I mean Rasul was 2004 and that's only,
944
00:40:05.340 --> 00:40:08.383
you know roughly what two and a half years afterwards.
945
00:40:09.480 --> 00:40:11.364
And that was significant.
946
00:40:11.364 --> 00:40:13.110
[Male Interviewer] Well, going back to the spring of '02
947
00:40:13.110 --> 00:40:16.770
then it sounds to me like you were still determined
948
00:40:16.770 --> 00:40:21.230
to go forward and even if you were thinking
949
00:40:22.070 --> 00:40:23.520
there was a sea change going on
950
00:40:23.520 --> 00:40:27.190
you were gonna fight for, you know for what you believe,
951
00:40:27.190 --> 00:40:28.550
you know shouldn't be happening.
952
00:40:28.550 --> 00:40:30.920
Yeah but I still think the role of progressive lawyers
953
00:40:30.920 --> 00:40:33.490
is to fight for fundamental democratic rights.
954
00:40:33.490 --> 00:40:35.613
I mean, that's one of the,
955
00:40:35.613 --> 00:40:37.040
I mean there's a number of aspects of it
956
00:40:37.040 --> 00:40:38.590
but that's one of them.
957
00:40:38.590 --> 00:40:43.060
And you use all the legal means you can.
958
00:40:43.060 --> 00:40:44.830
I mean what that's you try every niche.
959
00:40:44.830 --> 00:40:47.700
I mean you try, the first thing we did actually in,
960
00:40:47.700 --> 00:40:51.870
by February of 2002 so we represented Rasul,
961
00:40:51.870 --> 00:40:54.810
we represented, you know Hicks, the others,
962
00:40:54.810 --> 00:40:57.520
we filed with the Inter-American Human Rights Commission
963
00:40:57.520 --> 00:40:59.130
because we knew we had a problem,
964
00:40:59.130 --> 00:41:02.060
because we knew we had a big problem with Eisentrager.
965
00:41:02.060 --> 00:41:03.960
And we filed at the Inter-American Human Rights Commission
966
00:41:03.960 --> 00:41:06.960
for preliminary, for precautionary measures.
967
00:41:06.960 --> 00:41:08.840
And we got an incredibly good ruling
968
00:41:08.840 --> 00:41:11.630
on roughly March 12th, 2002.
969
00:41:11.630 --> 00:41:15.290
Saying, this is like to me ringing testimony of,
970
00:41:15.290 --> 00:41:16.360
ringing a statement.
971
00:41:16.360 --> 00:41:18.670
Every human being is a person under law,
972
00:41:18.670 --> 00:41:21.310
every single person has to have a legal status,
973
00:41:21.310 --> 00:41:23.420
every single person has to have a body of rights
974
00:41:23.420 --> 00:41:25.160
attached to that legal status.
975
00:41:25.160 --> 00:41:28.920
And we basically said we urge the demand the United States
976
00:41:28.920 --> 00:41:32.100
hold hearings immediately to determine the legal status
977
00:41:32.100 --> 00:41:33.910
of the people at Guantanamo.
978
00:41:33.910 --> 00:41:37.490
And I don't remember the famous German philosopher
979
00:41:37.490 --> 00:41:40.360
but who talks about legal status or not
980
00:41:40.360 --> 00:41:45.360
and the idea that you could have a group of human beings
981
00:41:45.560 --> 00:41:50.240
with no legal status and no legal protections
982
00:41:50.240 --> 00:41:52.390
you might as well be talking about you know,
983
00:41:52.390 --> 00:41:54.140
whatever you know cave men or something.
984
00:41:54.140 --> 00:41:58.650
I mean, it goes back and so that's what was at stake.
985
00:41:58.650 --> 00:42:00.910
And to me, you know in some way we've lost
986
00:42:00.910 --> 00:42:03.510
a lot of those issues, we've, it's not as bad
987
00:42:03.510 --> 00:42:05.600
as it was that day, it's worse in some way
988
00:42:05.600 --> 00:42:07.620
'cause I think it's now dug deeper
989
00:42:07.620 --> 00:42:09.560
into the soul of the society
990
00:42:09.560 --> 00:42:11.500
that it's okay to have preventive detention
991
00:42:11.500 --> 00:42:14.410
or okay to leave people at Guantanamo that are innocent.
992
00:42:14.410 --> 00:42:17.000
You know or okay to have military commissions.
993
00:42:17.000 --> 00:42:18.670
But on the other hand, you at least have a right
994
00:42:18.670 --> 00:42:19.760
to get those people into courts
995
00:42:19.760 --> 00:42:21.610
so they're not disappeared people.
996
00:42:21.610 --> 00:42:22.980
So you've changed some of it
997
00:42:22.980 --> 00:42:24.910
although you know the have Bagram sitting out there
998
00:42:24.910 --> 00:42:25.853
and other places.
999
00:42:26.940 --> 00:42:29.950
But it's still, it's chilling stuff.
1000
00:42:29.950 --> 00:42:30.783
[Male Interviewer] Could you tell us
1001
00:42:30.783 --> 00:42:32.155
what the Eisentrager said
1002
00:42:32.155 --> 00:42:34.107
because I think people that are watching
1003
00:42:34.107 --> 00:42:36.530
might not know and before you do that,
1004
00:42:36.530 --> 00:42:37.702
I just need to make a quick.
1005
00:42:37.702 --> 00:42:38.535
Okay.
1006
00:42:39.410 --> 00:42:41.147
[Male Interviewer] Yeah so let's talk about that,
1007
00:42:41.147 --> 00:42:42.676
okay we're rolling.
1008
00:42:42.676 --> 00:42:45.360
So could you just tell us what Eisentrager is about?
1009
00:42:45.360 --> 00:42:48.314
So people who are watching this can understand the context.
1010
00:42:48.314 --> 00:42:50.897
I don't think I wanna say it.
1011
00:42:56.061 --> 00:43:01.061
Eisentrager concerned Germans who were working in China
1012
00:43:01.630 --> 00:43:06.630
after the Armistice with Germany was agreed to.
1013
00:43:06.700 --> 00:43:09.370
And they were there for looked at
1014
00:43:09.370 --> 00:43:12.270
as people who were violating the laws of war.
1015
00:43:12.270 --> 00:43:15.690
And they were put on trial by the United States in China
1016
00:43:16.660 --> 00:43:20.260
on the grounds that they were essentially war criminals
1017
00:43:20.260 --> 00:43:21.320
of some sort.
1018
00:43:21.320 --> 00:43:26.320
And the case, the people who represented,
1019
00:43:27.130 --> 00:43:30.980
the people who represented the Germans filed a case
1020
00:43:30.980 --> 00:43:32.880
with the Supreme Court eventually
1021
00:43:32.880 --> 00:43:34.240
and the issue they claimed
1022
00:43:35.700 --> 00:43:37.380
was that they had a right of habeas corpus
1023
00:43:37.380 --> 00:43:40.130
the right to test their detention in the Supreme Court
1024
00:43:40.130 --> 00:43:41.520
because they had various legal reasons
1025
00:43:41.520 --> 00:43:43.870
why either they claimed it was not a war crime
1026
00:43:43.870 --> 00:43:46.100
was the main one or some others.
1027
00:43:46.100 --> 00:43:48.900
And the Supreme Court in relatively what I would say today
1028
00:43:48.900 --> 00:43:50.980
is careless language but at that time
1029
00:43:50.980 --> 00:43:53.530
was looked at as the law,
1030
00:43:53.530 --> 00:43:56.250
the Supreme Court said that an enemy alien,
1031
00:43:56.250 --> 00:43:58.020
I would say these people were aliens
1032
00:43:58.020 --> 00:44:00.460
and there were quote enemies of the United States,
1033
00:44:00.460 --> 00:44:04.350
an enemy alien has no right to go into an American court
1034
00:44:04.350 --> 00:44:06.370
and litigate his status
1035
00:44:06.370 --> 00:44:08.680
particularly the right of habeas corpus.
1036
00:44:08.680 --> 00:44:11.500
So if you look at the case in a certain way,
1037
00:44:11.500 --> 00:44:15.660
which is relatively broadly but it has language
1038
00:44:15.660 --> 00:44:18.470
like I'm saying that it meant that if you were picked up
1039
00:44:18.470 --> 00:44:20.980
overseas by the United States,
1040
00:44:20.980 --> 00:44:23.320
tried in a military commission
1041
00:44:23.320 --> 00:44:25.530
and you filed a writ of habeas corpus
1042
00:44:25.530 --> 00:44:28.280
to get your case reviewed in the Supreme Court.
1043
00:44:28.280 --> 00:44:30.560
Just don't worry about the technical terms
1044
00:44:30.560 --> 00:44:32.330
to get your reviewed in the Supreme Court
1045
00:44:32.330 --> 00:44:35.510
the Supreme Court said nope the door is closed
1046
00:44:35.510 --> 00:44:39.500
to anybody who is an enemy alien of the United States.
1047
00:44:39.500 --> 00:44:40.970
So it's a very broad ruling.
1048
00:44:40.970 --> 00:44:43.560
So if you apply it to Guantanamo people,
1049
00:44:43.560 --> 00:44:47.480
David Hicks, he's picked up outside the United States
1050
00:44:47.480 --> 00:44:49.420
he's considered by the United States
1051
00:44:49.420 --> 00:44:51.110
and that's an important, this is an important distinction
1052
00:44:51.110 --> 00:44:55.000
as an enemy alien, if files a writ of habeas corpus,
1053
00:44:55.000 --> 00:44:56.560
the government sites Eisentrager
1054
00:44:56.560 --> 00:45:00.410
and says the doors to the courthouse are closed period.
1055
00:45:00.410 --> 00:45:05.410
So that case was the main part of the litigation
1056
00:45:05.570 --> 00:45:07.073
for the first couple of years.
1057
00:45:08.140 --> 00:45:10.480
And getting how to distinguish that case,
1058
00:45:10.480 --> 00:45:14.750
how to get overcome it and of course it's hard
1059
00:45:14.750 --> 00:45:18.090
to get the court to say we are overruling another case,
1060
00:45:18.090 --> 00:45:20.200
they always have to find distinctions.
1061
00:45:20.200 --> 00:45:22.500
Without going into it there was many distinctions
1062
00:45:22.500 --> 00:45:24.217
of course lawyers is confined distinctions in anything
1063
00:45:24.217 --> 00:45:26.517
but these were actually relevant distinctions.
1064
00:45:27.441 --> 00:45:28.670
[Male Interviewer] So can you take this a little further
1065
00:45:28.670 --> 00:45:33.450
as to how did CCR then hired additional lawyers
1066
00:45:33.450 --> 00:45:37.670
or what CCR did next in terms of going forward
1067
00:45:37.670 --> 00:45:38.613
with these cases?
1068
00:45:39.470 --> 00:45:42.149
Well it depends on what period you wanna bring us up to.
1069
00:45:42.149 --> 00:45:43.030
[Male Interviewer] The one after your meeting
1070
00:45:43.030 --> 00:45:44.117
with Tom Wilner.
1071
00:45:44.117 --> 00:45:47.140
Oh, we didn't need additional lawyers at that point.
1072
00:45:47.140 --> 00:45:48.960
At that point the case is not so big.
1073
00:45:48.960 --> 00:45:50.967
I mean, you know, you had me,
1074
00:45:50.967 --> 00:45:53.950
you had a woman named Barbara Olshansky at my office.
1075
00:45:53.950 --> 00:45:55.220
Then she didn't get involved probably
1076
00:45:55.220 --> 00:45:58.350
until the Court of Appeals but you know you have a habeas,
1077
00:45:58.350 --> 00:46:00.580
there's not a lot going on, you have some research,
1078
00:46:00.580 --> 00:46:02.220
you have a couple of people at the Center, Joe,
1079
00:46:02.220 --> 00:46:04.140
you have you know Clive a little bit,
1080
00:46:04.140 --> 00:46:06.580
Eric was an expert on habeas
1081
00:46:06.580 --> 00:46:08.910
and it's and I had Beth Stevens I think
1082
00:46:08.910 --> 00:46:09.743
professor at Rutgers helped me
1083
00:46:09.743 --> 00:46:13.240
on some of the international law stuff, arbitrary detention.
1084
00:46:13.240 --> 00:46:15.950
I forgot who we consulted possibly on Geneva,
1085
00:46:15.950 --> 00:46:18.360
I think I probably was the person on Geneva at that point
1086
00:46:18.360 --> 00:46:20.440
although my knowledge today is much less
1087
00:46:20.440 --> 00:46:21.590
than some other people.
1088
00:46:22.860 --> 00:46:25.483
So we put together a habeas case and some briefs.
1089
00:46:26.600 --> 00:46:29.920
So it wasn't, really the real expansion of these cases
1090
00:46:29.920 --> 00:46:31.760
started happening after Boumediene,
1091
00:46:31.760 --> 00:46:34.970
I mean, after Rasul after 2004.
1092
00:46:34.970 --> 00:46:37.690
Before then, you know eventually picked up
1093
00:46:37.690 --> 00:46:40.040
you know I think both Heifetz and Gita were at,
1094
00:46:41.506 --> 00:46:44.113
you know it was at the New Jersey firm.
1095
00:46:45.815 --> 00:46:48.020
And so they started I forgot how, what,
1096
00:46:48.020 --> 00:46:51.050
when they started, well Gita may have started early
1097
00:46:51.050 --> 00:46:52.780
'cause she was a friend of Joe's
1098
00:46:52.780 --> 00:46:55.330
and worked at the Center and for Joe
1099
00:46:55.330 --> 00:46:58.190
and so I think Gita may have come in a bit earlier,
1100
00:46:58.190 --> 00:46:59.257
you know, quite early.
1101
00:46:59.257 --> 00:47:01.620
[Male Interviewer] So there was a very small
1102
00:47:01.620 --> 00:47:03.810
core of attorneys who were involved in these cases
1103
00:47:03.810 --> 00:47:05.170
and in the litigation.
1104
00:47:05.170 --> 00:47:08.606
It was tiny in the beginning, yeah there were-
1105
00:47:08.606 --> 00:47:09.867
[Male Interviewer] 'Cause you can I think.
1106
00:47:09.867 --> 00:47:12.810
Oh I think, you know, I may not be remembering
1107
00:47:12.810 --> 00:47:14.860
of any perfectly and there were some lawyers in England
1108
00:47:14.860 --> 00:47:17.341
who Clive knew but they were,
1109
00:47:17.341 --> 00:47:19.020
you know and eventually by the Supreme Court
1110
00:47:19.020 --> 00:47:21.080
then you had a bigger court, it wasn't huge,
1111
00:47:21.080 --> 00:47:23.810
but the Supreme Court in Rasul,
1112
00:47:23.810 --> 00:47:26.810
but then you had people Wishnie they doing a habeas brief
1113
00:47:26.810 --> 00:47:29.010
and you know, you had experts in certain areas
1114
00:47:29.010 --> 00:47:31.267
doing history of habeas and all this other stuff
1115
00:47:31.267 --> 00:47:36.267
but certainly it was quite, quite small going up.
1116
00:47:36.891 --> 00:47:38.870
And there was, you know the courtrooms weren't filled
1117
00:47:38.870 --> 00:47:39.903
in the beginning.
1118
00:47:41.220 --> 00:47:45.050
You know so and so the Center didn't at that point
1119
00:47:45.050 --> 00:47:46.027
didn't really need much help.
1120
00:47:46.027 --> 00:47:48.440
It was the explosion happened after,
1121
00:47:48.440 --> 00:47:50.897
really after 2000 and June, 2004.
1122
00:47:50.897 --> 00:47:52.810
[Male Interviewer] So when the, when your cases
1123
00:47:52.810 --> 00:47:55.560
were granted cert. in the fall of 2003,
1124
00:47:55.560 --> 00:47:58.620
that change your mood, attitude at all?
1125
00:47:58.620 --> 00:48:01.210
Well you know Joe and I remember we had dinner one night
1126
00:48:01.210 --> 00:48:03.730
on some city we were giving this speech
1127
00:48:03.730 --> 00:48:05.290
and I was really pessimistic.
1128
00:48:05.290 --> 00:48:09.160
I couldn't, I mean I said it has all the attributes
1129
00:48:09.160 --> 00:48:11.070
of a case the court shouldn't take.
1130
00:48:11.070 --> 00:48:14.961
It's during a court what the government refers to as war,
1131
00:48:14.961 --> 00:48:17.990
it is still going on, it's two and a half years afterwards,
1132
00:48:17.990 --> 00:48:19.410
you're in the face of Eisentrager,
1133
00:48:19.410 --> 00:48:21.590
you've lost in the Court of Appeals,
1134
00:48:21.590 --> 00:48:23.790
you have a relatively a better court then
1135
00:48:23.790 --> 00:48:27.640
than we have today, but you know you still have a moderate
1136
00:48:27.640 --> 00:48:30.950
to conservative court and you have guys
1137
00:48:30.950 --> 00:48:32.480
sitting at Guantanamo.
1138
00:48:32.480 --> 00:48:37.480
I mean, so you'll have both on as a textual matter,
1139
00:48:38.950 --> 00:48:43.950
as a political matter, why would they touch this case?
1140
00:48:43.980 --> 00:48:48.980
And I tried to recall what happened during the Japanese
1141
00:48:49.600 --> 00:48:51.540
concentration camp cases.
1142
00:48:51.540 --> 00:48:55.500
And as I recall, they didn't do much during that period.
1143
00:48:55.500 --> 00:48:58.240
It wasn't until afterwards that they really exonerated
1144
00:48:58.240 --> 00:49:00.070
or they really went after the issue.
1145
00:49:00.070 --> 00:49:02.530
So I in my own mind I compared it to that
1146
00:49:02.530 --> 00:49:05.070
and I said and then we had trouble always thinking
1147
00:49:05.070 --> 00:49:06.170
there was one issue that we still
1148
00:49:06.170 --> 00:49:09.920
don't have a real answer for which is,
1149
00:49:09.920 --> 00:49:12.900
you know there were 450,000 German prisoners of war
1150
00:49:12.900 --> 00:49:14.960
in the United States during the Second World War
1151
00:49:14.960 --> 00:49:16.387
or some number like that.
1152
00:49:16.387 --> 00:49:19.620
And we kept asking ourselves, did they file habeas corpus?
1153
00:49:19.620 --> 00:49:21.680
What if they picked up some little Jewish shopkeeper
1154
00:49:21.680 --> 00:49:24.360
in Berlin as a Nazi soldier and brought him here
1155
00:49:24.360 --> 00:49:27.030
would never write the habeas, but we couldn't find one.
1156
00:49:27.030 --> 00:49:28.420
I mean they may have filed them
1157
00:49:28.420 --> 00:49:31.090
but we couldn't find any that were decided.
1158
00:49:31.090 --> 00:49:32.830
So we're sitting there, well, what do,
1159
00:49:32.830 --> 00:49:34.180
this has never happened,
1160
00:49:34.180 --> 00:49:35.470
what's gonna happen here?
1161
00:49:35.470 --> 00:49:37.050
And of course then tactically
1162
00:49:37.050 --> 00:49:39.150
maybe you've already talked about people with Amsterdam
1163
00:49:39.150 --> 00:49:41.490
and when we met with him to work out our strategy
1164
00:49:41.490 --> 00:49:44.750
in the Supreme Court, but that's a separate thing.
1165
00:49:44.750 --> 00:49:47.903
But in any case at this point I was pessimistic.
1166
00:49:49.310 --> 00:49:50.970
Partly I was pessimistic I think
1167
00:49:52.740 --> 00:49:54.960
while we win a fair number of cases at the Center
1168
00:49:54.960 --> 00:49:58.150
we do so many cases that take on the edge politically
1169
00:49:58.150 --> 00:50:00.680
and legally that we lose a lot.
1170
00:50:00.680 --> 00:50:04.160
And I think Jules Lobel and I filed probably 14 cases
1171
00:50:04.160 --> 00:50:06.570
against various wars in Central America
1172
00:50:06.570 --> 00:50:08.930
and lost every one of them.
1173
00:50:08.930 --> 00:50:12.690
And Jules has a book even called "Success Without Victory,"
1174
00:50:12.690 --> 00:50:13.890
talking about using the law
1175
00:50:13.890 --> 00:50:17.450
as a means of raising consciousness whatever.
1176
00:50:17.450 --> 00:50:21.210
So I was pessimistic about it during that period
1177
00:50:21.210 --> 00:50:25.500
and Joe, I got to talk to Joe but he was certainly
1178
00:50:25.500 --> 00:50:27.827
you know much more optimistic than I was about it
1179
00:50:27.827 --> 00:50:29.177
and of course he was right.
1180
00:50:30.071 --> 00:50:31.077
[Male Interviewer] Do you think if you lost
1181
00:50:31.077 --> 00:50:33.027
in the Supreme Court it would be worse?
1182
00:50:34.240 --> 00:50:36.447
If we, if they had denied cert.?
1183
00:50:36.447 --> 00:50:38.300
[Male Interviewer] Or even if you had gone
1184
00:50:38.300 --> 00:50:41.320
to the Supreme Court and lost in the Supreme Court both.
1185
00:50:41.320 --> 00:50:44.410
Well my theory has always been, I'm not,
1186
00:50:44.410 --> 00:50:46.340
you know when we talked about why the ACLU
1187
00:50:46.340 --> 00:50:48.680
didn't take these cases for bad precedent
1188
00:50:48.680 --> 00:50:51.430
I generally disregard that as an issue.
1189
00:50:51.430 --> 00:50:53.500
Because I think my view is if you have clients
1190
00:50:53.500 --> 00:50:56.450
who need to test their detention,
1191
00:50:56.450 --> 00:50:58.010
you have to test it in every way
1192
00:50:58.010 --> 00:51:00.250
and you can't worry about creating a bad precedent
1193
00:51:00.250 --> 00:51:01.680
it's human freedom that's at stake
1194
00:51:01.680 --> 00:51:03.810
and you can't mess around.
1195
00:51:03.810 --> 00:51:07.170
So I don't, I rarely think about precedent
1196
00:51:07.170 --> 00:51:10.060
and I rarely think it's gonna make it worse.
1197
00:51:10.060 --> 00:51:12.993
So I, that would almost never be an issue for me.
1198
00:51:12.993 --> 00:51:15.850
It's an issue for some other lawyers, although less so,
1199
00:51:15.850 --> 00:51:18.610
you know the ACLU has come a long way on that issue.
1200
00:51:18.610 --> 00:51:19.920
I mean look at the cases they brought,
1201
00:51:19.920 --> 00:51:22.060
they brought a case against the Rumsfeld in the end,
1202
00:51:22.060 --> 00:51:25.210
the criminal, attempt to criminal prosecution.
1203
00:51:25.210 --> 00:51:27.423
You know were in a civil certainly.
1204
00:51:28.380 --> 00:51:30.070
So, you know people have come,
1205
00:51:30.070 --> 00:51:32.230
I think what happened in the Bush period
1206
00:51:32.230 --> 00:51:34.760
is people began to have a very different view
1207
00:51:34.760 --> 00:51:38.103
of how to think about litigating these legal issues.
1208
00:51:39.130 --> 00:51:42.920
Because it was and it was just going so far beyond
1209
00:51:42.920 --> 00:51:45.940
anything we had experienced that people said
1210
00:51:45.940 --> 00:51:47.380
we just have to do this.
1211
00:51:47.380 --> 00:51:49.885
We have to use every form we can.
1212
00:51:49.885 --> 00:51:51.090
[Male Interviewer] Did you do any public speaking
1213
00:51:51.090 --> 00:51:53.890
during that time too to try to raise consciousness
1214
00:51:53.890 --> 00:51:56.060
that you just mentioned that I mean,
1215
00:51:56.060 --> 00:51:57.350
since you are a public speaker?
1216
00:51:57.350 --> 00:51:58.380
I think during this period
1217
00:51:58.380 --> 00:52:00.880
I was probably a very active public speaker.
1218
00:52:00.880 --> 00:52:03.580
I tended certainly at this period to be less,
1219
00:52:03.580 --> 00:52:05.240
although in the beginning I was very involved
1220
00:52:05.240 --> 00:52:06.770
in the legal issues but during the,
1221
00:52:06.770 --> 00:52:07.830
up through the Supreme Court
1222
00:52:07.830 --> 00:52:10.070
but after that I became much less involved.
1223
00:52:10.070 --> 00:52:13.220
But I was a very active public speaker on this issue
1224
00:52:13.220 --> 00:52:15.843
everywhere and writer as well.
1225
00:52:16.953 --> 00:52:18.310
[Male Interviewer] Did you feel a need to do that
1226
00:52:18.310 --> 00:52:19.850
even more than you usually do?
1227
00:52:19.850 --> 00:52:21.007
Yes, I, this was really an issue
1228
00:52:21.007 --> 00:52:22.030
we had to go out there on.
1229
00:52:22.030 --> 00:52:24.300
You know one thing that's just an aspect of this
1230
00:52:24.300 --> 00:52:27.350
one interesting part is whether any of us realized
1231
00:52:27.350 --> 00:52:29.870
that torture was going on during this period.
1232
00:52:29.870 --> 00:52:33.357
And again I don't think we did.
1233
00:52:33.357 --> 00:52:35.620
I mean I think a lesson that was learned
1234
00:52:36.950 --> 00:52:39.140
and again I would have to see what Joe and Tom thinks
1235
00:52:39.140 --> 00:52:40.300
and whether they really remember
1236
00:52:40.300 --> 00:52:42.820
but I remember writing a chapter of a book
1237
00:52:42.820 --> 00:52:45.270
and having read what was happening,
1238
00:52:45.270 --> 00:52:47.610
it was an early couple of pieces in the post
1239
00:52:47.610 --> 00:52:49.950
the things that resulted in the "Taxi to the Dark Side"
1240
00:52:49.950 --> 00:52:52.270
the killings there, the torture killing.
1241
00:52:52.270 --> 00:52:54.970
and having said well, maybe this was going on in Guantanamo
1242
00:52:54.970 --> 00:52:56.967
and then putting in a couple of paragraphs in a book saying
1243
00:52:56.967 --> 00:52:59.600
and there may well be torture going on in Guantanamo
1244
00:52:59.600 --> 00:53:02.790
here's what happened here and they took it out
1245
00:53:02.790 --> 00:53:04.900
because I didn't really have the evidence of it.
1246
00:53:04.900 --> 00:53:07.600
I did interestingly had the first evidence
1247
00:53:07.600 --> 00:53:09.430
'cause I interviewed Rasul they were let out
1248
00:53:09.430 --> 00:53:10.470
before the Supreme Court.
1249
00:53:10.470 --> 00:53:12.110
I interviewed him in February,
1250
00:53:12.110 --> 00:53:17.110
Clive had a conference in England in February, 2002 I think
1251
00:53:17.290 --> 00:53:19.050
where the three came together in a room
1252
00:53:19.050 --> 00:53:21.470
and I was there with, I don't know if Joe was there
1253
00:53:21.470 --> 00:53:23.660
but I was there and Clive was there
1254
00:53:23.660 --> 00:53:24.790
and that was a wonderful thing.
1255
00:53:24.790 --> 00:53:27.060
I mean, they like great, but then they,
1256
00:53:27.060 --> 00:53:30.210
that's when they described, before anything had happened
1257
00:53:30.210 --> 00:53:33.450
about torture they described what had happened to them.
1258
00:53:33.450 --> 00:53:36.730
And it was pretty stunning for me to hear that
1259
00:53:36.730 --> 00:53:38.360
but I think we were naive about it.
1260
00:53:38.360 --> 00:53:41.780
And I think one lesson is that incommunicado detention
1261
00:53:41.780 --> 00:53:43.870
is generally gonna be about torture.
1262
00:53:43.870 --> 00:53:45.240
That's what it's for.
1263
00:53:45.240 --> 00:53:46.430
I mean, why, that's why,
1264
00:53:46.430 --> 00:53:47.730
I mean yeah there may be other reasons
1265
00:53:47.730 --> 00:53:49.890
but the basic reason is you wanna be able
1266
00:53:49.890 --> 00:53:51.023
to mistreat people.
1267
00:53:51.880 --> 00:53:54.190
And that's what this was from the beginning.
1268
00:53:54.190 --> 00:53:58.170
So that was where we were all of us I would say,
1269
00:53:58.170 --> 00:54:00.319
naive although we may have had this undercurrent
1270
00:54:00.319 --> 00:54:05.319
of being upset or uneased because of incommunicado
1271
00:54:05.720 --> 00:54:09.470
detentions but you realize that's what goes on.
1272
00:54:09.470 --> 00:54:11.470
So Joe was at least, the bottom of it is Joe
1273
00:54:11.470 --> 00:54:14.735
was much more optimistic bucketing cert. than I was.
1274
00:54:14.735 --> 00:54:16.715
[Male Interviewer] And after the Rasul decision
1275
00:54:16.715 --> 00:54:21.715
was released did your mood, attitude change,
1276
00:54:22.153 --> 00:54:24.677
did you think like maybe this is the end
1277
00:54:24.677 --> 00:54:26.470
and maybe things will go back
1278
00:54:26.470 --> 00:54:28.732
to the way it was before 911?
1279
00:54:28.732 --> 00:54:30.850
I mean and what was amazing about the Rasul decision,
1280
00:54:30.850 --> 00:54:32.000
I mean two things one is that
1281
00:54:32.000 --> 00:54:33.350
it was six to three of course
1282
00:54:33.350 --> 00:54:38.153
but secondly, that it was so one-sided really,
1283
00:54:41.230 --> 00:54:44.800
I mean, it was clear we were gonna win
1284
00:54:44.800 --> 00:54:47.380
when we walked out and just as an anecdote
1285
00:54:47.380 --> 00:54:49.010
it was clear we were gonna win by the next week
1286
00:54:49.010 --> 00:54:51.100
because I don't know if you call it happened the next week
1287
00:54:51.100 --> 00:54:54.850
it was either in both Hamdi and Padilla were argued
1288
00:54:54.850 --> 00:54:57.050
the next week and that's when they got the famous question
1289
00:54:57.050 --> 00:55:01.200
from Justice Ginsburg to the acting solicitor
1290
00:55:01.200 --> 00:55:03.240
I forgot his name now but he became a solicitor
1291
00:55:03.240 --> 00:55:05.730
was all out of the blue Justice Ginsburg says,
1292
00:55:05.730 --> 00:55:07.200
you mean to say we can't do anything
1293
00:55:07.200 --> 00:55:09.240
about what's going on at Guantanamo.
1294
00:55:09.240 --> 00:55:12.850
We could have with Hamdi or Padilla whichever one
1295
00:55:12.850 --> 00:55:14.520
or not even in Guantanamo
1296
00:55:14.520 --> 00:55:15.494
and it's not our business,
1297
00:55:15.494 --> 00:55:17.650
and you know he kept saying this is a war
1298
00:55:17.650 --> 00:55:19.980
and then she says what if there's torture going on?
1299
00:55:19.980 --> 00:55:22.030
And there'll be no evidence of torture publicly
1300
00:55:22.030 --> 00:55:25.460
other than the couple of little disregarded pieces
1301
00:55:25.460 --> 00:55:26.293
in the post.
1302
00:55:28.230 --> 00:55:30.000
And then the solicitor says,
1303
00:55:30.000 --> 00:55:32.090
don't worry there's no torture going on,
1304
00:55:32.090 --> 00:55:34.023
nothing like that and then Ginsburg pushed and said,
1305
00:55:34.023 --> 00:55:35.840
well there's a little bit of torture
1306
00:55:35.840 --> 00:55:37.170
and it's run by the executive.
1307
00:55:37.170 --> 00:55:39.560
And he says, there isn't, but in the end
1308
00:55:39.560 --> 00:55:40.550
you have to trust us.
1309
00:55:40.550 --> 00:55:43.380
And he says, trust us and that's either April 23rd
1310
00:55:43.380 --> 00:55:46.320
or whatever the day is of 2002
1311
00:55:46.320 --> 00:55:49.240
and that night CBS puts on the hypocrite photos.
1312
00:55:49.240 --> 00:55:50.640
At that point in my view
1313
00:55:50.640 --> 00:55:52.890
I don't care what the arguments were,
1314
00:55:52.890 --> 00:55:57.410
the cases are over because the court is saying
1315
00:55:58.360 --> 00:56:00.290
you know because they're saying,
1316
00:56:00.290 --> 00:56:01.530
the government is saying trust us
1317
00:56:01.530 --> 00:56:03.750
which is the whole thing that's going on
1318
00:56:03.750 --> 00:56:04.583
from the beginning here
1319
00:56:04.583 --> 00:56:07.180
where Bush is doing whatever he wants
1320
00:56:08.060 --> 00:56:09.830
and then they're saying
1321
00:56:09.830 --> 00:56:11.370
the court you mean if there's torture going on
1322
00:56:11.370 --> 00:56:12.830
we still can't look at this?
1323
00:56:12.830 --> 00:56:15.410
So that was really, I think that that would have,
1324
00:56:15.410 --> 00:56:17.830
had we not, I think we're gonna win anyway,
1325
00:56:17.830 --> 00:56:21.820
but I think that really shifted things
1326
00:56:21.820 --> 00:56:25.897
it's on that issue.
1327
00:56:25.897 --> 00:56:27.207
[Male Interviewer] So then with that
1328
00:56:27.207 --> 00:56:29.730
and then with the decision Rasul
1329
00:56:29.730 --> 00:56:32.010
were you feeling more positive
1330
00:56:32.010 --> 00:56:35.620
about the rule of law ultimately in America?
1331
00:56:35.620 --> 00:56:39.023
You think it still could go back to way it was pre-911?
1332
00:56:40.430 --> 00:56:43.010
I was hopeful, I certainly was hopeful because,
1333
00:56:43.010 --> 00:56:45.180
you know he quoted, I mean Justice Stevens
1334
00:56:45.180 --> 00:56:47.360
right as I recall now, Justice Stevens,
1335
00:56:47.360 --> 00:56:50.670
he quoted from the dissent in the case called Mezze
1336
00:56:50.670 --> 00:56:52.689
which is not that interesting for the listeners here
1337
00:56:52.689 --> 00:56:55.640
but it's the dissent in which it goes back to
1338
00:56:55.640 --> 00:56:59.620
the Magna Carta and talks about the anathema
1339
00:56:59.620 --> 00:57:01.530
that executive detention is
1340
00:57:01.530 --> 00:57:02.970
which is where we had begun.
1341
00:57:02.970 --> 00:57:05.390
I mean we began with saying you just can't have a system
1342
00:57:05.390 --> 00:57:07.090
of executive detention.
1343
00:57:07.090 --> 00:57:08.850
That's a pretty strong quote.
1344
00:57:08.850 --> 00:57:10.530
I mean to go back and understand
1345
00:57:10.530 --> 00:57:12.343
that this is the basics of our law.
1346
00:57:13.700 --> 00:57:15.990
So we were pretty hopeful on that.
1347
00:57:15.990 --> 00:57:17.540
Now of course the decision was,
1348
00:57:17.540 --> 00:57:19.107
had two different ways of looking at it.
1349
00:57:19.107 --> 00:57:22.150
Was it Guantanamo based or was it habeas based?
1350
00:57:22.150 --> 00:57:24.830
And that ensued another four years of litigation
1351
00:57:24.830 --> 00:57:27.450
until we could get the habeas part out of the thing,
1352
00:57:27.450 --> 00:57:29.240
but or into the thing.
1353
00:57:29.240 --> 00:57:31.893
But sure we were optimistic although,
1354
00:57:32.830 --> 00:57:35.300
you know, I mean Joe was much more optimistic.
1355
00:57:35.300 --> 00:57:37.200
This is where Joe was more optimistic.
1356
00:57:37.200 --> 00:57:39.660
Joe and I had a phone call and Joe said to me,
1357
00:57:39.660 --> 00:57:41.320
Michael we should be moving on to Bagram
1358
00:57:41.320 --> 00:57:42.630
because we're gonna have this place closed
1359
00:57:42.630 --> 00:57:44.300
in a year or two.
1360
00:57:44.300 --> 00:57:48.260
And I said, Joe, I've been against this government too long
1361
00:57:48.260 --> 00:57:51.463
and too often, we're not gonna have this place closed.
1362
00:57:52.500 --> 00:57:56.600
And very quickly you saw how,
1363
00:57:56.600 --> 00:57:58.530
the government didn't react as fast
1364
00:57:58.530 --> 00:58:01.930
as it probably should have considering.
1365
00:58:01.930 --> 00:58:03.260
It took them six weeks to get there
1366
00:58:03.260 --> 00:58:04.950
or four weeks to get themselves together.
1367
00:58:04.950 --> 00:58:06.550
We knew what was going on by that time,
1368
00:58:06.550 --> 00:58:07.653
Joe, all of us did.
1369
00:58:08.700 --> 00:58:10.920
Even our Joe felt much more optimistic than I was.
1370
00:58:10.920 --> 00:58:15.920
I, you know, but to the credit of the team
1371
00:58:17.490 --> 00:58:20.460
and I think again Joe in particular but all of us
1372
00:58:21.490 --> 00:58:23.520
we felt that the main thing that had to happen next
1373
00:58:23.520 --> 00:58:25.100
was to file habeas petitions
1374
00:58:25.100 --> 00:58:28.060
on behalf of every single person at Guantanamo.
1375
00:58:28.060 --> 00:58:31.020
Get them into federal court as fast as possible
1376
00:58:31.020 --> 00:58:33.130
'cause we suspected that the government
1377
00:58:33.130 --> 00:58:35.670
would wanna do some kind of administrative procedure
1378
00:58:35.670 --> 00:58:40.020
in Guantanamo and you know get back finding down there
1379
00:58:40.020 --> 00:58:41.510
with their own sort of people
1380
00:58:41.510 --> 00:58:43.820
and we wanted it up in federal courts.
1381
00:58:43.820 --> 00:58:45.330
And then they would wanna treat it
1382
00:58:45.330 --> 00:58:48.370
if technically they wanna be like as if it's this habeas
1383
00:58:48.370 --> 00:58:51.200
from a state court going up to a federal court
1384
00:58:51.200 --> 00:58:53.600
where the facts are essentially agreed.
1385
00:58:53.600 --> 00:58:56.800
We wanna treat it like a federal habeas period.
1386
00:58:56.800 --> 00:58:58.180
And so there, then there was
1387
00:58:58.180 --> 00:59:00.980
and they were a little slow, but not that slow
1388
00:59:00.980 --> 00:59:02.010
it didn't make any difference
1389
00:59:02.010 --> 00:59:03.180
they are sort of do what they want
1390
00:59:03.180 --> 00:59:07.760
but at that point is when the litigation began to explode
1391
00:59:07.760 --> 00:59:10.830
because by that time we probably had,
1392
00:59:10.830 --> 00:59:12.400
I don't know how many names we had.
1393
00:59:12.400 --> 00:59:13.300
I mean, they're getting names,
1394
00:59:13.300 --> 00:59:16.210
we had filed subsequently filed cases for names
1395
00:59:16.210 --> 00:59:18.110
and everything but we probably had
1396
00:59:18.110 --> 00:59:19.970
I don't know they're at 50 names or a 100 names
1397
00:59:19.970 --> 00:59:21.223
of people at Guantanamo.
1398
00:59:22.250 --> 00:59:24.883
And you know then what would happen is,
1399
00:59:26.040 --> 00:59:29.220
you know the, I don't know, how did we get the names?
1400
00:59:29.220 --> 00:59:30.790
Oh Rasul came, you know, those guys,
1401
00:59:30.790 --> 00:59:33.140
we got names from different people, all kinds of sources
1402
00:59:33.140 --> 00:59:36.410
plus the families would get in touch with us 'cause it was,
1403
00:59:36.410 --> 00:59:37.880
at that point, we put out a call
1404
00:59:37.880 --> 00:59:40.180
to various bar associations at other places
1405
00:59:40.180 --> 00:59:42.050
to get habeas attorneys.
1406
00:59:42.050 --> 00:59:43.162
And of course, most people
1407
00:59:43.162 --> 00:59:44.500
that don't know anything about habeas.
1408
00:59:44.500 --> 00:59:47.410
I mean, most law firms don't have any idea.
1409
00:59:47.410 --> 00:59:48.860
And while it wasn't, I wouldn't say
1410
00:59:48.860 --> 00:59:51.700
it wasn't the easiest thing in the world getting attorneys,
1411
00:59:51.700 --> 00:59:53.570
it wasn't exactly impossible.
1412
00:59:53.570 --> 00:59:56.890
And by and very quickly we had probably a 100 attorneys
1413
00:59:56.890 --> 01:00:00.370
who were willing to represent Guantanamo attorneys
1414
01:00:00.370 --> 01:00:02.090
and then at the Center was looked at
1415
01:00:02.090 --> 01:00:03.750
'cause it was the only institution
1416
01:00:03.750 --> 01:00:06.440
it was looked at as the core place to organize it.
1417
01:00:06.440 --> 01:00:07.910
And that's when the Center worked with,
1418
01:00:07.910 --> 01:00:10.950
working again with Joe and Clive and et cetera
1419
01:00:10.950 --> 01:00:14.460
began trainings of habeas attorneys, set up the network,
1420
01:00:14.460 --> 01:00:16.770
that's when the Center started to hire people,
1421
01:00:16.770 --> 01:00:19.970
that's when probably the first grant came into the Center
1422
01:00:19.970 --> 01:00:21.690
which was Ford Foundation.
1423
01:00:21.690 --> 01:00:23.830
The Center would never normally have gotten money from Ford
1424
01:00:23.830 --> 01:00:27.090
or we did for our voting rights work but not generally.
1425
01:00:27.090 --> 01:00:30.190
And Ford took a, you know even for Ford that was a,
1426
01:00:30.190 --> 01:00:31.660
not even for Ford Ford is a pretty,
1427
01:00:31.660 --> 01:00:32.830
it's a liberal foundation
1428
01:00:32.830 --> 01:00:36.060
but it's not where we would normally get money from.
1429
01:00:36.060 --> 01:00:38.010
But they gave us a grant to begin
1430
01:00:38.010 --> 01:00:41.380
that setting up of the network, to hire,
1431
01:00:41.380 --> 01:00:44.140
you know all the Guantanamo people, I don't know when,
1432
01:00:44.140 --> 01:00:46.770
you know when exactly when Gita got on board
1433
01:00:46.770 --> 01:00:49.653
but it was not long after that and some others.
1434
01:00:50.787 --> 01:00:52.930
[Male Interviewer] So yeah strikes me as a CCR
1435
01:00:52.930 --> 01:00:55.100
was instrumental in being the clearing house
1436
01:00:55.100 --> 01:00:57.610
for all Guantanamo lawyers,
1437
01:00:57.610 --> 01:01:02.020
habeas lawyers post-2004 they pretty much all
1438
01:01:02.020 --> 01:01:03.540
were trained by CCR.
1439
01:01:03.540 --> 01:01:07.310
Well, CCR, Joe and Clive, yeah that's correct.
1440
01:01:07.310 --> 01:01:09.540
That was the main, it was the only clearing house.
1441
01:01:09.540 --> 01:01:12.100
Occasionally there was a, you know an outlier lawyer
1442
01:01:12.100 --> 01:01:13.290
but not really.
1443
01:01:13.290 --> 01:01:15.923
They were all, they still are almost all,
1444
01:01:16.900 --> 01:01:18.010
they're much more independent today
1445
01:01:18.010 --> 01:01:18.843
but they were all on,
1446
01:01:18.843 --> 01:01:20.750
they're still all on our network,
1447
01:01:20.750 --> 01:01:24.000
we run the network and we still have a number of clients
1448
01:01:24.000 --> 01:01:25.760
and at that point there were model pleadings,
1449
01:01:25.760 --> 01:01:27.960
model habeas pleadings, there were trainings,
1450
01:01:27.960 --> 01:01:30.560
you know people didn't know, you know and people
1451
01:01:30.560 --> 01:01:33.110
even, nobody knew how do you run a habeas hearing
1452
01:01:33.110 --> 01:01:35.550
I mean in this kinda case where there's all kinds of issues?
1453
01:01:35.550 --> 01:01:37.100
And there were all kinds of protective orders
1454
01:01:37.100 --> 01:01:39.480
and secret evidence and of course the government meanwhile
1455
01:01:39.480 --> 01:01:41.847
is running CSRTs.
1456
01:01:41.847 --> 01:01:42.910
[Male Interviewer] Can you tell us what they are.
1457
01:01:42.910 --> 01:01:47.910
Well CSRTs are, what the government tried to do is set up
1458
01:01:48.460 --> 01:01:53.260
an alternative system for fact-finding at Guantanamo.
1459
01:01:53.260 --> 01:01:57.540
And because they didn't want the fact finding to happen
1460
01:01:57.540 --> 01:02:00.570
in Washington DC in front of a federal judge,
1461
01:02:00.570 --> 01:02:02.640
they wanted to control the fact-finding.
1462
01:02:02.640 --> 01:02:06.170
And so they set up CSRTs or Combatant Status Review
1463
01:02:06.170 --> 01:02:10.140
Tribunals and they're staffed by essentially military people
1464
01:02:10.140 --> 01:02:13.520
not necessarily lawyers and the person doesn't get a lawyer
1465
01:02:13.520 --> 01:02:16.830
the person gets a quote rep the detainee at Guantanamo
1466
01:02:16.830 --> 01:02:20.800
gets a yeah it's called a personal representative
1467
01:02:20.800 --> 01:02:23.010
and any and it's not like there's any confidence
1468
01:02:23.010 --> 01:02:24.477
so if you were my personal representative
1469
01:02:24.477 --> 01:02:28.050
and I say, well look at, you know I wasn't in Afghanistan
1470
01:02:28.050 --> 01:02:30.290
but I was in Pakistan when I was at this madrasa
1471
01:02:30.290 --> 01:02:31.373
but not that madrasa.
1472
01:02:32.570 --> 01:02:35.560
You have an obligation as my personal representative
1473
01:02:35.560 --> 01:02:38.030
to tell the tribunal everything I tell you.
1474
01:02:38.030 --> 01:02:39.270
So there's no personal confidence.
1475
01:02:39.270 --> 01:02:40.610
So there's no consulting at all,
1476
01:02:40.610 --> 01:02:41.860
there's nothing it's like.
1477
01:02:41.860 --> 01:02:44.090
And then there's no, while they say there's an ability
1478
01:02:44.090 --> 01:02:45.810
to call witnesses, there isn't any,
1479
01:02:45.810 --> 01:02:48.800
I don't think at any Combatant Status Review Tribunal
1480
01:02:48.800 --> 01:02:50.870
there's been one witness called.
1481
01:02:50.870 --> 01:02:54.170
All the evidence is you know secret essentially
1482
01:02:54.170 --> 01:02:56.110
that's most of it that's any good
1483
01:02:56.110 --> 01:02:57.670
that you might wanna see.
1484
01:02:57.670 --> 01:02:59.410
And of course there's classic statements
1485
01:02:59.410 --> 01:03:01.770
about a guy says well you're accused of associating
1486
01:03:01.770 --> 01:03:03.350
with somebody from Al-Qaida
1487
01:03:03.350 --> 01:03:06.063
and then the poor detainee says well, who's that?
1488
01:03:07.868 --> 01:03:09.010
Or they say did you associate
1489
01:03:09.010 --> 01:03:10.020
and the guy say well I don't know
1490
01:03:10.020 --> 01:03:11.210
until you tell me who it is.
1491
01:03:11.210 --> 01:03:13.130
Well, we can tell you that's classified.
1492
01:03:13.130 --> 01:03:14.660
So that's just Kafka.
1493
01:03:14.660 --> 01:03:19.660
So these tribunals essentially create a factual record
1494
01:03:20.190 --> 01:03:22.490
that allows the people to be kept in Guantanamo
1495
01:03:22.490 --> 01:03:27.240
while the government claims that that's all they need to do.
1496
01:03:27.240 --> 01:03:30.030
And they don't even, they even tried to feed habeas
1497
01:03:30.030 --> 01:03:32.190
with that, they said that's all we need to do.
1498
01:03:32.190 --> 01:03:33.940
And in the extent they got the habeas
1499
01:03:33.940 --> 01:03:35.840
they tried to say that's the record.
1500
01:03:35.840 --> 01:03:38.580
So it was a complete rum bullshit system
1501
01:03:38.580 --> 01:03:39.710
there's no other thing to say about it
1502
01:03:39.710 --> 01:03:42.560
it was just, but again the government,
1503
01:03:42.560 --> 01:03:43.737
you know I mean the people
1504
01:03:43.737 --> 01:03:46.540
who were the Guantanamo attorneys going down there
1505
01:03:46.540 --> 01:03:50.120
just, you know, it's half Mickey Mouse it's half terrible,
1506
01:03:50.120 --> 01:03:52.580
you know from protective orders it's not a way
1507
01:03:52.580 --> 01:03:54.130
any lawyer ought to practice law.
1508
01:03:54.130 --> 01:03:56.330
I remember one of my lawyers at the Center said
1509
01:03:56.330 --> 01:03:58.720
they gave him the one of the early protective orders
1510
01:03:58.720 --> 01:04:00.160
about what they couldn't say,
1511
01:04:00.160 --> 01:04:01.840
you can tell if your client's tortured,
1512
01:04:01.840 --> 01:04:03.090
you can't make it public,
1513
01:04:03.090 --> 01:04:06.140
basically it hides everything bad the government's done.
1514
01:04:06.140 --> 01:04:08.290
And the lawyers are put to this choice
1515
01:04:08.290 --> 01:04:11.080
of can I represent, they litigated of course
1516
01:04:11.080 --> 01:04:12.410
but you don't get anywhere.
1517
01:04:12.410 --> 01:04:15.280
Do I represent the person under these draconian conditions
1518
01:04:15.280 --> 01:04:17.745
where I can't tell if,
1519
01:04:17.745 --> 01:04:19.440
you know it sounds like the Catholic church and abuse
1520
01:04:19.440 --> 01:04:21.540
I can't tell if my client's been tortured.
1521
01:04:23.830 --> 01:04:26.550
Nothing I can't do anything publicly.
1522
01:04:26.550 --> 01:04:28.860
You represent your clients under these conditions
1523
01:04:28.860 --> 01:04:30.720
where there's a video camera there all the time,
1524
01:04:30.720 --> 01:04:34.160
where your notes are given to somebody right away
1525
01:04:34.160 --> 01:04:36.740
and they go up to Washington and you have to work
1526
01:04:36.740 --> 01:04:39.660
in a secure facility in murderous conditions.
1527
01:04:39.660 --> 01:04:42.430
Do I do that or do I simply not represent the client?
1528
01:04:42.430 --> 01:04:44.920
And you're in an impossible situation.
1529
01:04:44.920 --> 01:04:49.220
And you know it the stuff is very seriously,
1530
01:04:49.220 --> 01:04:50.700
taken very seriously by the government
1531
01:04:50.700 --> 01:04:52.840
even if most of it is BS.
1532
01:04:52.840 --> 01:04:54.136
And if you violate that stuff
1533
01:04:54.136 --> 01:04:57.890
disbarment, you could go to jail I mean it's serious stuff.
1534
01:04:57.890 --> 01:05:02.890
So it's a, so if we, when we talk about what's changed
1535
01:05:02.930 --> 01:05:05.650
in preventive detention,
1536
01:05:05.650 --> 01:05:07.933
what's changed in military commissions,
1537
01:05:09.000 --> 01:05:12.300
we should also and it's not for me to talk about it
1538
01:05:12.300 --> 01:05:15.890
but it's 'cause the details are the lawyers
1539
01:05:15.890 --> 01:05:17.780
who were going to Guantanamo,
1540
01:05:17.780 --> 01:05:19.890
but I think there's been a shift
1541
01:05:19.890 --> 01:05:22.850
in what in the role of the defense attorney,
1542
01:05:22.850 --> 01:05:26.330
and the role of the attorney end and what's allowable
1543
01:05:26.330 --> 01:05:27.163
and what's not.
1544
01:05:27.163 --> 01:05:29.460
What's going on at Guantanamo and the restrictions
1545
01:05:29.460 --> 01:05:31.360
put on defense attorneys should never be allowed
1546
01:05:31.360 --> 01:05:34.100
in the system in which you have vigorous defense counsel.
1547
01:05:34.100 --> 01:05:35.980
It should never and that's changed,
1548
01:05:35.980 --> 01:05:38.683
that's a change and that's a draconian change.
1549
01:05:39.681 --> 01:05:43.030
[Male Interviewer] Did lawyers ever talk to you about
1550
01:05:43.030 --> 01:05:45.827
their own attitudes with this change
1551
01:05:45.827 --> 01:05:48.220
and how shocked they were that they were restricted
1552
01:05:48.220 --> 01:05:49.053
like that?
1553
01:05:49.053 --> 01:05:51.640
Do you have any stories about lawyers who went down there?
1554
01:05:51.640 --> 01:05:53.790
Well, sure I mean our lawyers at the Center
1555
01:05:53.790 --> 01:05:56.960
who represent people and you know when you read
1556
01:05:56.960 --> 01:05:58.790
about torture and what's going on
1557
01:05:58.790 --> 01:06:00.280
and what's in the newspapers,
1558
01:06:00.280 --> 01:06:02.440
I mean they are under these restrictions
1559
01:06:02.440 --> 01:06:05.710
where even though their clients may well have been tortured,
1560
01:06:05.710 --> 01:06:09.070
may well have been subjected to even waterboarding,
1561
01:06:09.070 --> 01:06:11.167
they cannot talk about it.
1562
01:06:11.167 --> 01:06:13.930
And they write papers to the Courts of Appeals
1563
01:06:13.930 --> 01:06:15.670
where they're under, no one can see them
1564
01:06:15.670 --> 01:06:17.280
they're all under restrictions
1565
01:06:17.280 --> 01:06:19.200
and they can't come out in the Courts of Appeals
1566
01:06:19.200 --> 01:06:21.260
they'll sit there for months or years
1567
01:06:21.260 --> 01:06:23.730
sitting on the fact that this guy was waterboarded
1568
01:06:23.730 --> 01:06:26.680
or tortured and they find it utterly frustrating.
1569
01:06:26.680 --> 01:06:29.080
And sometimes sure people wanna say
1570
01:06:29.080 --> 01:06:31.960
I just wanna go out and let them disbar me,
1571
01:06:31.960 --> 01:06:34.217
let him do this but of course he represent clients
1572
01:06:34.217 --> 01:06:37.837
and the question is how do you continue to do that
1573
01:06:37.837 --> 01:06:38.670
and represent clients?
1574
01:06:38.670 --> 01:06:43.670
So it's a terrible dilemma and you know one day
1575
01:06:43.940 --> 01:06:46.623
if those attorneys can ever talk will be remarkable.
1576
01:06:48.120 --> 01:06:50.120
But I don't know if they'll ever be able to.
1577
01:06:50.120 --> 01:06:51.950
And if you look at what happens to the,
1578
01:06:51.950 --> 01:06:53.660
you know, there's now that of course in the US
1579
01:06:53.660 --> 01:06:55.180
there's this thing called SAMs
1580
01:06:55.180 --> 01:06:57.370
put on people's special administrative measures
1581
01:06:57.370 --> 01:07:00.210
attorneys are restrictive, are restricted in the same way
1582
01:07:00.210 --> 01:07:02.140
as Guantanamo attorneys were being restricted
1583
01:07:02.140 --> 01:07:04.590
or models for each other.
1584
01:07:04.590 --> 01:07:06.700
And so you're getting an, if you really look at it
1585
01:07:06.700 --> 01:07:08.748
even though we have this few minutes
1586
01:07:08.748 --> 01:07:12.890
of being in the public in a habeas hearing
1587
01:07:12.890 --> 01:07:15.460
when even the habeas hearing is not closed
1588
01:07:15.460 --> 01:07:18.660
or is not, you know classified evidence
1589
01:07:20.730 --> 01:07:24.190
it's basically the entire process is like an iceberg
1590
01:07:24.190 --> 01:07:26.010
where seven eighths of it is underwater
1591
01:07:26.010 --> 01:07:29.680
and no one sees it except the attorneys if they're lucky,
1592
01:07:29.680 --> 01:07:32.236
the client often doesn't see a lot of it
1593
01:07:32.236 --> 01:07:33.069
and the US attorney.
1594
01:07:33.069 --> 01:07:36.510
So you're running an entire system of justice
1595
01:07:36.510 --> 01:07:38.851
you know that's underwater in the country.
1596
01:07:38.851 --> 01:07:40.760
[Male Interviewer] How did your attorneys
1597
01:07:40.760 --> 01:07:42.940
handle if their clients didn't wanna see them
1598
01:07:42.940 --> 01:07:47.720
or were they ever told that the government,
1599
01:07:47.720 --> 01:07:49.380
or did the government would try to interfere
1600
01:07:49.380 --> 01:07:52.820
with CCR attorneys meeting the clients with-
1601
01:07:52.820 --> 01:07:55.360
Well, these are, I mean Wilner has stories
1602
01:07:55.360 --> 01:07:56.940
about you know telling clients
1603
01:07:56.940 --> 01:07:59.490
that their lawyers are Jewish
1604
01:07:59.490 --> 01:08:00.890
and in fact the number of the lawyers
1605
01:08:00.890 --> 01:08:04.110
I mean, Joe, I and, Joe and I were Jewish,
1606
01:08:04.110 --> 01:08:08.550
Wilner is Jewish, so you know Clive claims
1607
01:08:08.550 --> 01:08:10.910
he's somewhat Jewish so I don't know, maybe he is or isn't.
1608
01:08:10.910 --> 01:08:12.747
So that was an issue that yeah their clients get-
1609
01:08:12.747 --> 01:08:14.170
[Male Interviewer] How was that an issue?
1610
01:08:14.170 --> 01:08:18.227
Well, because the guards would tell the clients
1611
01:08:19.850 --> 01:08:20.943
you don't wanna be represented by these people
1612
01:08:20.943 --> 01:08:23.450
they're Jewish, or the only way you're gonna get outta here
1613
01:08:23.450 --> 01:08:25.810
is if you don't have an attorney,
1614
01:08:25.810 --> 01:08:29.230
those stories are not uncommon.
1615
01:08:29.230 --> 01:08:30.990
And of course the lawyers that were women
1616
01:08:30.990 --> 01:08:34.460
had sometimes problems with you know with Muslim men
1617
01:08:34.460 --> 01:08:38.710
who didn't necessarily want women attorneys,
1618
01:08:38.710 --> 01:08:40.500
but they eventually worked out.
1619
01:08:40.500 --> 01:08:43.630
I mean some, I've heard, I heard stories where a lawyer
1620
01:08:43.630 --> 01:08:45.800
one of our, one of the lawyers went down 10,
1621
01:08:45.800 --> 01:08:47.030
almost for 10 months in a row
1622
01:08:47.030 --> 01:08:50.300
before the client would turn around and face her.
1623
01:08:50.300 --> 01:08:51.810
So these are hard jobs.
1624
01:08:51.810 --> 01:08:54.760
These are, these lawyers I mean, went 10,
1625
01:08:54.760 --> 01:08:56.070
20 times to Guantanamo.
1626
01:08:56.070 --> 01:08:58.420
And you know I'd been to Guantanamo a few times
1627
01:08:59.560 --> 01:09:02.830
in the Haitian cases and I would never go back.
1628
01:09:02.830 --> 01:09:06.130
I mean I was so, I mean I guess you could call it
1629
01:09:06.130 --> 01:09:08.460
a form of post-traumatic stress
1630
01:09:08.460 --> 01:09:09.607
but I just can't even think about it.
1631
01:09:09.607 --> 01:09:12.690
It was so awful, it was just so awful.
1632
01:09:12.690 --> 01:09:15.440
And so the lawyers, you know, Joe, Gita,
1633
01:09:15.440 --> 01:09:19.530
the ones who've gone, Tom that gone 10, 20, 30 times,
1634
01:09:19.530 --> 01:09:20.750
you know everything from the flight,
1635
01:09:20.750 --> 01:09:23.160
to how you're treated, to the Mickey Mouse stuff,
1636
01:09:23.160 --> 01:09:26.110
to the security, to seeing people who are innocent
1637
01:09:26.110 --> 01:09:30.983
just locked away, it's devastating stuff, devastating.
1638
01:09:32.967 --> 01:09:37.110
[Male Interviewer] Were, do you have any of the stories
1639
01:09:37.110 --> 01:09:40.650
as to you know how the lawyers were when they,
1640
01:09:40.650 --> 01:09:43.817
the shot they took when they went down and what they saw,
1641
01:09:43.817 --> 01:09:45.890
not just how they're treated by the government
1642
01:09:45.890 --> 01:09:48.910
but just what they saw with their clients
1643
01:09:48.910 --> 01:09:50.900
or how they met with their clients
1644
01:09:50.900 --> 01:09:54.340
in their you know these little rooms?
1645
01:09:54.340 --> 01:09:55.540
Those are all, you know you can get those stories
1646
01:09:55.540 --> 01:09:56.680
from each of the lawyers right?
1647
01:09:56.680 --> 01:09:58.570
I mean they're all pretty clear what happened
1648
01:09:58.570 --> 01:10:01.080
so mine are second-hand stories.
1649
01:10:01.080 --> 01:10:03.270
I mean, you're right the rooms are these small rooms,
1650
01:10:03.270 --> 01:10:06.850
the client is you know locked to the floor essentially.
1651
01:10:06.850 --> 01:10:08.060
I mean, you have a million stories like this,
1652
01:10:08.060 --> 01:10:12.310
you have David Remes' clients who you know, cut his wrist,
1653
01:10:12.310 --> 01:10:15.490
you know the blood under the table and throwing it on David.
1654
01:10:15.490 --> 01:10:17.000
I mean, you have a million stories
1655
01:10:17.000 --> 01:10:20.760
of the utter frustration of the clients.
1656
01:10:20.760 --> 01:10:23.800
And you know I remember a story from my Haitian experience
1657
01:10:23.800 --> 01:10:25.600
when I first went and this happened,
1658
01:10:25.600 --> 01:10:29.000
this is not probably this is analogous to what happens.
1659
01:10:29.000 --> 01:10:30.830
When I first went down to see the Haitian clients
1660
01:10:30.830 --> 01:10:33.030
who were the refugees in the HIV camp,
1661
01:10:33.030 --> 01:10:34.780
who were locked behind barbed wire,
1662
01:10:35.860 --> 01:10:37.500
they yelled and screamed at us saying
1663
01:10:37.500 --> 01:10:39.250
we don't want you to represent us,
1664
01:10:39.250 --> 01:10:41.610
maybe if you were getting paid you'd be better,
1665
01:10:41.610 --> 01:10:44.280
you're pro bono lawyers, we want paid lawyers
1666
01:10:44.280 --> 01:10:45.480
who can get us out of here.
1667
01:10:45.480 --> 01:10:48.393
And so what happens after a period of time,
1668
01:10:50.450 --> 01:10:52.210
that's an attitude.
1669
01:10:52.210 --> 01:10:53.740
What happens after a period of time
1670
01:10:53.740 --> 01:10:56.293
it probably gets worse because there they are
1671
01:10:56.293 --> 01:10:58.840
this is eight years for some of these people
1672
01:10:58.840 --> 01:11:01.430
and they have to say to themselves and it's going on now,
1673
01:11:01.430 --> 01:11:02.730
we don't wanna see the lawyer anymore.
1674
01:11:02.730 --> 01:11:03.880
It's not any point.
1675
01:11:03.880 --> 01:11:04.713
And of course, some of them,
1676
01:11:04.713 --> 01:11:08.110
you know probably have done things to themselves
1677
01:11:08.110 --> 01:11:09.650
to draw attention or to just say
1678
01:11:09.650 --> 01:11:12.114
they're frustrated completely.
1679
01:11:12.114 --> 01:11:14.020
They can't take it, so they throw their lawyers out
1680
01:11:14.020 --> 01:11:15.970
and sure we've had a lot of lawyers
1681
01:11:15.970 --> 01:11:19.290
who they go through all this work, they get the clearance,
1682
01:11:19.290 --> 01:11:21.740
they get on the airplane, they fly from Miami,
1683
01:11:21.740 --> 01:11:24.990
they get on the ferry, it's exhausting
1684
01:11:24.990 --> 01:11:27.510
and then the client doesn't even tell them,
1685
01:11:27.510 --> 01:11:29.170
like I'm talking to you,
1686
01:11:29.170 --> 01:11:30.780
they put in the notice to see the client
1687
01:11:30.780 --> 01:11:33.664
and they get a note back saying the client won't see you
1688
01:11:33.664 --> 01:11:35.820
and there's nothing they can do.
1689
01:11:35.820 --> 01:11:37.553
They can't communicate with the client,
1690
01:11:37.553 --> 01:11:39.740
they can't talk to the client,
1691
01:11:39.740 --> 01:11:41.150
they can't pick up a phone.
1692
01:11:41.150 --> 01:11:43.150
So what do they do? They wait there for two or three days,
1693
01:11:43.150 --> 01:11:45.940
they send a note in and then I go home.
1694
01:11:45.940 --> 01:11:49.780
And the government, every note is monitored,
1695
01:11:49.780 --> 01:11:51.650
you don't have, there's nothing confidential
1696
01:11:51.650 --> 01:11:53.800
you can give, attorney-client nothing.
1697
01:11:53.800 --> 01:11:55.100
They supposedly have a team that
1698
01:11:55.100 --> 01:11:57.300
going through the prosecution that looks at this,
1699
01:11:57.300 --> 01:12:00.760
that looks at this, but I think if you were to measure
1700
01:12:00.760 --> 01:12:03.060
the restrictions on the lawyers right now
1701
01:12:04.330 --> 01:12:06.780
it would be, it just, you know in another environment
1702
01:12:06.780 --> 01:12:09.223
it would be so shocking as to be unbelievable.
1703
01:12:10.910 --> 01:12:14.670
So it's one of the most, I mean we have lawyers
1704
01:12:14.670 --> 01:12:16.320
who've worked for years and then all of a sudden
1705
01:12:16.320 --> 01:12:17.780
the client just says what am I doing here?
1706
01:12:17.780 --> 01:12:19.210
Why do, why would I do this?
1707
01:12:19.210 --> 01:12:22.270
And now think about it who've been both,
1708
01:12:22.270 --> 01:12:24.980
even these stupid CSRT procedures
1709
01:12:24.980 --> 01:12:26.020
the Combatant Status Reviews
1710
01:12:26.020 --> 01:12:29.340
some people have been found to be innocent under that
1711
01:12:29.340 --> 01:12:32.650
or at least not enemy combatants as the term.
1712
01:12:32.650 --> 01:12:34.040
Some people who have been found innocent
1713
01:12:34.040 --> 01:12:36.350
or many in the habeas corpus.
1714
01:12:36.350 --> 01:12:37.670
And so the lawyer does all that,
1715
01:12:37.670 --> 01:12:38.950
thinks he's gonna get their person out
1716
01:12:38.950 --> 01:12:41.380
and the person sits there and can't get them out.
1717
01:12:41.380 --> 01:12:43.410
So some people think they're better without lawyers.
1718
01:12:43.410 --> 01:12:46.270
Why do I have a lawyer? What do I need a lawyer for?
1719
01:12:46.270 --> 01:12:48.700
And I know it's what are you gonna say,
1720
01:12:48.700 --> 01:12:49.980
these people who've been there eight years,
1721
01:12:49.980 --> 01:12:53.000
they have a right to determine their own lives at some point
1722
01:12:53.000 --> 01:12:55.890
and say that's it I can't do this anymore.
1723
01:12:55.890 --> 01:12:57.160
It's gotta be heartbreak,
1724
01:12:57.160 --> 01:12:59.840
I mean it's heartbreaking work there's no.
1725
01:12:59.840 --> 01:13:01.320
And of course when they get transported,
1726
01:13:01.320 --> 01:13:04.163
if you ever talk to any of the people that transported them
1727
01:13:04.163 --> 01:13:06.360
in jail or others who've gone back with their clients
1728
01:13:06.360 --> 01:13:07.820
the clients chained all the way,
1729
01:13:07.820 --> 01:13:10.310
even though they've been so-called free,
1730
01:13:10.310 --> 01:13:13.640
found innocent, et cetera, found not enemy combatants
1731
01:13:13.640 --> 01:13:15.780
and the country is willing to take them
1732
01:13:15.780 --> 01:13:19.840
until they get off the plane after a 10, 12, 15, 20 hours
1733
01:13:19.840 --> 01:13:23.020
in Palau or more, you know they're chained to the,
1734
01:13:23.020 --> 01:13:24.940
they're chained in the plane.
1735
01:13:24.940 --> 01:13:27.490
So the thing is, I mean Kafka
1736
01:13:27.490 --> 01:13:28.960
didn't have a correct description of it.
1737
01:13:28.960 --> 01:13:31.273
Someday someone will write the novel but yeah.
1738
01:13:32.325 --> 01:13:34.630
[Male Interviewer] But you're not giving up you're-
1739
01:13:34.630 --> 01:13:37.140
Well I have to say this is not a good period.
1740
01:13:37.140 --> 01:13:38.710
You're not talking to us in a good period.
1741
01:13:38.710 --> 01:13:40.610
I'd be interested in, I haven't really talked enough
1742
01:13:40.610 --> 01:13:43.200
to my attorneys at the Center or others,
1743
01:13:43.200 --> 01:13:46.840
but this is like scraping on hard pebbles right now.
1744
01:13:46.840 --> 01:13:48.523
Because here you have a situation where
1745
01:13:48.523 --> 01:13:51.030
there's still a number of innocent people,
1746
01:13:51.030 --> 01:13:52.640
majority at Guantanamo probably
1747
01:13:52.640 --> 01:13:55.640
but number who have been found not enemy combatants
1748
01:13:55.640 --> 01:13:58.350
by the federal court and they're still there.
1749
01:13:58.350 --> 01:14:00.410
And there's bureaucracy hanging it up,
1750
01:14:00.410 --> 01:14:02.650
there's all kinds of other things hanging it up
1751
01:14:02.650 --> 01:14:05.980
and this is a way after a year after Obama promised
1752
01:14:05.980 --> 01:14:07.950
to close it, you're seeing now
1753
01:14:07.950 --> 01:14:12.010
that there might be as many as 50 people going to trial,
1754
01:14:12.010 --> 01:14:14.160
many of them before military commissions,
1755
01:14:14.160 --> 01:14:18.160
which I consider you know kangaroo courts and unauthorized.
1756
01:14:18.160 --> 01:14:21.003
Many of them held in preventive detention possibly.
1757
01:14:22.837 --> 01:14:23.760
So you're talking about us
1758
01:14:23.760 --> 01:14:25.917
and you have innocent people there after eight years,
1759
01:14:25.917 --> 01:14:28.340
you know what? I've never stood a couple of things
1760
01:14:28.340 --> 01:14:30.870
one is, I've had clients put into jail
1761
01:14:30.870 --> 01:14:32.763
here in New York for various reasons.
1762
01:14:34.160 --> 01:14:38.140
And if they spend an extra day in jail
1763
01:14:38.140 --> 01:14:41.330
we lift heaven and earth and it's an outrage.
1764
01:14:41.330 --> 01:14:43.110
Like if they get picked up and they don't get brought
1765
01:14:43.110 --> 01:14:46.090
before a court in 24 or 48 hours,
1766
01:14:46.090 --> 01:14:48.440
that's considered to be, I mean crazy.
1767
01:14:48.440 --> 01:14:51.140
I've had, you know, particularly clients in demonstrations
1768
01:14:51.140 --> 01:14:54.228
and others where we lift heaven and hell to do it.
1769
01:14:54.228 --> 01:14:55.450
And it's not that we haven't lifted
1770
01:14:55.450 --> 01:14:57.490
that for the Guantanamo clients,
1771
01:14:57.490 --> 01:15:00.380
but the idea that you could one day decide,
1772
01:15:00.380 --> 01:15:02.420
okay, well we're not ready to send this guy out
1773
01:15:02.420 --> 01:15:05.810
or he's innocent and then diddle around year after year
1774
01:15:05.810 --> 01:15:07.980
while you have an innocent person there
1775
01:15:07.980 --> 01:15:10.430
and not think that human freedom deprived for one day
1776
01:15:10.430 --> 01:15:12.439
is an outrage, I don't know,
1777
01:15:12.439 --> 01:15:16.240
I don't, I don't, I actually don't understand it.
1778
01:15:16.240 --> 01:15:19.970
I just it's unclear to me how it could happen.
1779
01:15:19.970 --> 01:15:22.813
It's not like these people have been convicted of anything,
1780
01:15:23.830 --> 01:15:28.270
it's completely you know, I mean I've done habeas corpuses
1781
01:15:28.270 --> 01:15:30.660
before federal judges on a Sunday
1782
01:15:30.660 --> 01:15:33.190
in churches where the federal judge lives upstate.
1783
01:15:33.190 --> 01:15:36.050
I did one, almost my earliest case at the Center
1784
01:15:36.050 --> 01:15:38.640
and he held a hearing and he handed me the writ
1785
01:15:38.640 --> 01:15:41.550
and I went to the prison and I got the guy out.
1786
01:15:41.550 --> 01:15:42.943
One extra day.
1787
01:15:49.107 --> 01:15:52.663
[Male Interviewer] Will Obama make changes over time?
1788
01:15:56.920 --> 01:15:58.120
I think it's unlikely.
1789
01:15:59.460 --> 01:16:02.290
Yeah, I mean I think I, what are all the causes?
1790
01:16:02.290 --> 01:16:03.133
I couldn't say.
1791
01:16:04.680 --> 01:16:08.320
I mean, but I think it's, I mean he's,
1792
01:16:08.320 --> 01:16:10.850
you know, I mean every time an issue comes up,
1793
01:16:10.850 --> 01:16:14.470
it just, I mean for either reasons of he has other issues,
1794
01:16:14.470 --> 01:16:17.200
he needs other votes or the right wing is just too strong
1795
01:16:17.200 --> 01:16:20.493
and pushing him around or it's not important enough.
1796
01:16:21.530 --> 01:16:22.530
Whatever reasons we wanna say.
1797
01:16:22.530 --> 01:16:25.400
If you look at I mean preventative detention,
1798
01:16:25.400 --> 01:16:28.550
the I mean the compromises on preventive attention
1799
01:16:28.550 --> 01:16:29.840
and you know, they're doing it
1800
01:16:29.840 --> 01:16:32.040
not even from the same basis I am are saying,
1801
01:16:32.040 --> 01:16:34.140
well at least we're not gonna get a statute.
1802
01:16:34.140 --> 01:16:36.390
We're just gonna have a, so you don't get a statute
1803
01:16:36.390 --> 01:16:37.780
is the same as Bush.
1804
01:16:37.780 --> 01:16:39.830
I mean a statute is probably worse they're thinking,
1805
01:16:39.830 --> 01:16:41.730
because it's true probably going to this Congress
1806
01:16:41.730 --> 01:16:43.990
you're gonna have you and I in preventative detention
1807
01:16:43.990 --> 01:16:45.240
before we're finished.
1808
01:16:45.240 --> 01:16:48.250
But, so they're just doing sort of,
1809
01:16:48.250 --> 01:16:50.450
and of course Obama claims he's different
1810
01:16:50.450 --> 01:16:53.290
because he's relying on the AUMF
1811
01:16:53.290 --> 01:16:54.770
the Authorization for Use of Military Force
1812
01:16:54.770 --> 01:16:59.430
and Bush was aligning on inherent constitutional authority.
1813
01:16:59.430 --> 01:17:02.193
But for the guy in prison, it doesn't make any difference
1814
01:17:02.193 --> 01:17:03.573
it's the same result.
1815
01:17:04.580 --> 01:17:07.730
And military commissions to me I just, I,
1816
01:17:07.730 --> 01:17:10.600
it can only be explained as saying
1817
01:17:10.600 --> 01:17:13.320
that we don't have enough evidence to convict these people
1818
01:17:13.320 --> 01:17:15.720
in a regular court with due process protections
1819
01:17:15.720 --> 01:17:16.930
and therefore we're gonna convict them
1820
01:17:16.930 --> 01:17:19.538
by a bastardized form of justice.
1821
01:17:19.538 --> 01:17:21.310
I don't know what to say to that.
1822
01:17:21.310 --> 01:17:23.170
You know, I mean it's just the whole system
1823
01:17:23.170 --> 01:17:24.943
it's gotten completely corrupted.
1824
01:17:25.910 --> 01:17:28.520
And I don't think there's a way out.
1825
01:17:28.520 --> 01:17:29.900
I'm not convinced there's way.
1826
01:17:29.900 --> 01:17:31.830
Yeah we're fighting and we're only seeing,
1827
01:17:31.830 --> 01:17:34.700
as I said, even in the trials but even what's going on
1828
01:17:34.700 --> 01:17:36.000
we don't look at background
1829
01:17:36.000 --> 01:17:39.570
look at the prisons in Afghanistan,
1830
01:17:39.570 --> 01:17:42.210
I mean, you know why shouldn't those people
1831
01:17:42.210 --> 01:17:44.890
have a right to habeas? This is, you know, at least,
1832
01:17:44.890 --> 01:17:46.740
you know this is actually an important part
1833
01:17:46.740 --> 01:17:48.440
of the discussion I don't know if you've come to it
1834
01:17:48.440 --> 01:17:50.050
when we were talking with Tony Amsterdam
1835
01:17:50.050 --> 01:17:52.250
about what we're gonna do in Rasul,
1836
01:17:52.250 --> 01:17:55.423
Tony is the NYU professor who's the expert on Supreme Court.
1837
01:17:56.460 --> 01:17:58.730
And we had a debate,
1838
01:17:58.730 --> 01:18:02.240
do we just argue Rasul as habeas,
1839
01:18:02.240 --> 01:18:04.510
the right to go to court because you're in Guantanamo
1840
01:18:04.510 --> 01:18:06.460
which is a kin to the United States.
1841
01:18:06.460 --> 01:18:09.120
It's owned essentially by the United States
1842
01:18:09.120 --> 01:18:12.580
and it's leased in perpetuity, it's like an American city
1843
01:18:12.580 --> 01:18:14.610
and therefore you should have a similar rights
1844
01:18:14.610 --> 01:18:16.226
to the Americans or as some of our
1845
01:18:16.226 --> 01:18:18.020
you know as we said last time in court,
1846
01:18:18.020 --> 01:18:20.460
it's actually has more federal jurisdiction
1847
01:18:20.460 --> 01:18:22.630
'cause in a state you have the federal,
1848
01:18:22.630 --> 01:18:23.947
you have the state, you have the city, you have the,
1849
01:18:23.947 --> 01:18:26.070
you know the council.
1850
01:18:26.070 --> 01:18:29.940
So, or should we argue that you got the right to habeas.
1851
01:18:29.940 --> 01:18:33.050
whenever a person is in US custody anywhere in the world?
1852
01:18:33.050 --> 01:18:34.680
And there was a big debate in the room,
1853
01:18:34.680 --> 01:18:35.980
only a half a dozen of us listening
1854
01:18:35.980 --> 01:18:40.820
you know Joe, me, Tom and at that point
1855
01:18:40.820 --> 01:18:43.070
everybody thought, not everybody but some of us thought
1856
01:18:43.070 --> 01:18:44.770
it was ridiculous, you can't argue habeas
1857
01:18:44.770 --> 01:18:47.320
everywhere in the world that we're never gonna win that.
1858
01:18:47.320 --> 01:18:49.420
I thought we had to do that.
1859
01:18:49.420 --> 01:18:52.000
Tony said what you'd never wanna do,
1860
01:18:52.000 --> 01:18:54.190
Tony Amsterdam you never wanna cut the court off
1861
01:18:54.190 --> 01:18:56.650
from jurisdiction of a case and that's the torture case
1862
01:18:56.650 --> 01:18:58.420
because at least the court
1863
01:18:58.420 --> 01:19:00.260
even if it's gonna rubber stamp the habeas
1864
01:19:00.260 --> 01:19:01.910
and say well he's classified as a prisoner of war
1865
01:19:01.910 --> 01:19:03.910
we're not gonna look at it on the merits,
1866
01:19:03.910 --> 01:19:05.740
you don't want a court ever cut off
1867
01:19:05.740 --> 01:19:08.910
from being able to test a person's custody.
1868
01:19:08.910 --> 01:19:09.960
And that's right.
1869
01:19:09.960 --> 01:19:12.570
And now we're, so we've won Guantanamo
1870
01:19:12.570 --> 01:19:15.010
and we've won it, even now on Kennedy's,
1871
01:19:15.010 --> 01:19:17.020
you know three-step process
1872
01:19:17.020 --> 01:19:20.230
for getting there, practicality and all that.
1873
01:19:20.230 --> 01:19:23.040
But what about Bagram? What about Iraq?
1874
01:19:23.040 --> 01:19:26.080
I mean, why should a person be in custody
1875
01:19:26.080 --> 01:19:28.020
without being able to test their detention
1876
01:19:28.020 --> 01:19:29.790
and my view is they never should.
1877
01:19:29.790 --> 01:19:31.790
I mean, even if the court's going to eventually say,
1878
01:19:31.790 --> 01:19:33.940
well this is in the middle of the shooting war,
1879
01:19:33.940 --> 01:19:35.380
we're not gonna do it now,
1880
01:19:35.380 --> 01:19:36.610
they're held as a prisoner of war,
1881
01:19:36.610 --> 01:19:38.740
they're under conditions that are internment,
1882
01:19:38.740 --> 01:19:39.723
but you know, if you look at Guantanamo
1883
01:19:39.723 --> 01:19:42.320
what it really is it's an interrogation camp.
1884
01:19:42.320 --> 01:19:44.580
I mean, that's, it's not, this is all,
1885
01:19:44.580 --> 01:19:46.810
it's all junk about all the rest of it.
1886
01:19:46.810 --> 01:19:48.998
Basically it's an interrogation torture camp
1887
01:19:48.998 --> 01:19:50.947
or was originally a torture camp and now it's,
1888
01:19:50.947 --> 01:19:52.690
and now it's, whatever it is
1889
01:19:52.690 --> 01:19:55.410
but and that's what it was set up for and those were,
1890
01:19:55.410 --> 01:19:56.590
and that's why it was done.
1891
01:19:56.590 --> 01:19:58.040
And they'd been illegal
1892
01:19:58.040 --> 01:20:00.910
you know certainly since the last set of Geneva Conventions
1893
01:20:00.910 --> 01:20:04.490
it's what the Germans did even before the last conventions.
1894
01:20:04.490 --> 01:20:06.160
And they're not supposed to be interrogated,
1895
01:20:06.160 --> 01:20:07.760
that's what Geneva is all about.
1896
01:20:07.760 --> 01:20:10.330
So they had to come up with some category
1897
01:20:10.330 --> 01:20:12.280
in which was our earliest point
1898
01:20:12.280 --> 01:20:13.557
that you have to have a legal status
1899
01:20:13.557 --> 01:20:15.320
and they didn't give them any legal status.
1900
01:20:15.320 --> 01:20:18.390
They just picked and chose whatever
1901
01:20:18.390 --> 01:20:20.750
and I wouldn't say rights whatever disabilities
1902
01:20:20.750 --> 01:20:22.787
they wanted to give them.
1903
01:20:22.787 --> 01:20:23.620
[Male Interviewer] And is Bagram
1904
01:20:23.620 --> 01:20:25.999
another interrogation camp?
1905
01:20:25.999 --> 01:20:26.832
Oh I think it is.
1906
01:20:26.832 --> 01:20:27.987
We know, we don't know much about it
1907
01:20:27.987 --> 01:20:30.060
and of course the only habeas that has been won there
1908
01:20:30.060 --> 01:20:33.110
has been for non-Afghanis
1909
01:20:33.110 --> 01:20:35.790
which former Center attorneys have done you know Tina
1910
01:20:35.790 --> 01:20:37.863
and Tina Foster and Barbara Olshansky.
1911
01:20:38.918 --> 01:20:40.960
[Male Interviewer] So if CCR didn't exist
1912
01:20:40.960 --> 01:20:42.470
where would we be today?
1913
01:20:42.470 --> 01:20:45.590
Well you know we'd have Joe and Tom and Clive
1914
01:20:45.590 --> 01:20:48.010
and they're, you know, they were pretty devoted
1915
01:20:48.010 --> 01:20:49.340
to this stuff.
1916
01:20:49.340 --> 01:20:50.810
And I think the problem would have been
1917
01:20:50.810 --> 01:20:52.560
getting this big mass together
1918
01:20:52.560 --> 01:20:55.060
and how would it have been done particularly that early.
1919
01:20:55.060 --> 01:20:56.640
Yeah today if you went to a foundation
1920
01:20:56.640 --> 01:20:58.480
and said fund us to do this,
1921
01:20:58.480 --> 01:20:59.313
but I don't think early on you could
1922
01:20:59.313 --> 01:21:01.530
that wouldn't have happened.
1923
01:21:01.530 --> 01:21:03.860
So I think it played an absolute crucial role
1924
01:21:03.860 --> 01:21:05.830
in not just pushing the litigation
1925
01:21:05.830 --> 01:21:09.030
but putting a human rights organization behind it
1926
01:21:09.030 --> 01:21:12.630
and also developing the infrastructure to do it.
1927
01:21:12.630 --> 01:21:15.820
So, you know it's certainly a critical piece of work
1928
01:21:15.820 --> 01:21:18.040
you know that the Center was involved in.
1929
01:21:18.040 --> 01:21:19.900
[Male Interviewer] And looking back Michael
1930
01:21:19.900 --> 01:21:21.230
since you've been involved in this
1931
01:21:21.230 --> 01:21:24.810
for you know 30, 40 years do you think the last 10 years
1932
01:21:24.810 --> 01:21:28.830
your life has changed a lot more than the previous
1933
01:21:28.830 --> 01:21:31.203
20 or 30 years? There's been,
1934
01:21:32.150 --> 01:21:34.023
a different in how you see the world?
1935
01:21:35.410 --> 01:21:39.160
Well, I think that, you know I think on these issues
1936
01:21:39.160 --> 01:21:41.860
that we've, I hate to be pessimistic about it,
1937
01:21:41.860 --> 01:21:44.700
but I think it's a more permanent loss
1938
01:21:44.700 --> 01:21:48.740
than I sustained in the past on these issues,
1939
01:21:48.740 --> 01:21:50.810
on the issues of what I call on fundamental issues
1940
01:21:50.810 --> 01:21:52.223
of human liberty or freedom.
1941
01:21:53.210 --> 01:21:56.790
And it's, yeah I mean it's not a great feeling about that.
1942
01:21:56.790 --> 01:21:58.460
I mean I've, I don't wanna speak
1943
01:21:58.460 --> 01:21:59.853
for everybody in my office,
1944
01:22:01.054 --> 01:22:04.170
but I was with a Congressman the other day actually
1945
01:22:04.170 --> 01:22:05.547
talking about these national security issues
1946
01:22:05.547 --> 01:22:07.313
and he basically said we've lost.
1947
01:22:08.520 --> 01:22:10.250
I mean we've lost that and state secrecy
1948
01:22:10.250 --> 01:22:12.820
Obama comes in saying he's gonna do better on state secrecy
1949
01:22:12.820 --> 01:22:15.330
and we're getting the same opposition, the same rulings.
1950
01:22:15.330 --> 01:22:17.830
What's interesting about that period is,
1951
01:22:17.830 --> 01:22:19.520
you know the courts are only gonna do so much
1952
01:22:19.520 --> 01:22:22.090
and of course we have a certain popular,
1953
01:22:22.090 --> 01:22:24.140
you know in some way what the Center's done
1954
01:22:24.140 --> 01:22:26.720
and I think it's a great thing has created a movement
1955
01:22:26.720 --> 01:22:30.360
around the issue of Guantanamo and the habeas.
1956
01:22:30.360 --> 01:22:33.190
And it's one I was not familiar with in my experience
1957
01:22:33.190 --> 01:22:35.350
because it's a movement of lawyers that had began
1958
01:22:35.350 --> 01:22:36.970
as a movement of lawyers particularly
1959
01:22:36.970 --> 01:22:40.700
and then it spread out but what
1960
01:22:41.900 --> 01:22:45.070
and so that gave me some one, that gave me some hope here
1961
01:22:45.070 --> 01:22:47.700
is that we took a whole bunch of lawyers who,
1962
01:22:47.700 --> 01:22:49.250
you know were trained as lawyers
1963
01:22:49.250 --> 01:22:51.200
who hadn't, didn't have my politics at all,
1964
01:22:51.200 --> 01:22:52.860
some are Republican, some are,
1965
01:22:52.860 --> 01:22:55.170
certainly a lot are just straight Democrats,
1966
01:22:55.170 --> 01:22:56.900
you know, a lot or nothing you know
1967
01:22:56.900 --> 01:22:59.760
and they actually moved, you know tremendously
1968
01:22:59.760 --> 01:23:01.590
and a lot of those people change their careers
1969
01:23:01.590 --> 01:23:03.400
and their lives because of Guantanamo.
1970
01:23:03.400 --> 01:23:06.960
I mean, they became, you know, they left the big practices,
1971
01:23:06.960 --> 01:23:09.730
they became professors, they became litigators.
1972
01:23:09.730 --> 01:23:12.720
So you know, that the chances of social transformation
1973
01:23:12.720 --> 01:23:15.380
are not small on this and the fact that we won that much
1974
01:23:15.380 --> 01:23:18.270
in Guantanamo is incredible.
1975
01:23:18.270 --> 01:23:20.670
But it's also an example to me
1976
01:23:20.670 --> 01:23:23.190
of how outrageous the practice was gonna be.
1977
01:23:23.190 --> 01:23:25.510
And we still, we've not just lost on what I call
1978
01:23:25.510 --> 01:23:27.800
these preventive detention issues and secrecy
1979
01:23:27.800 --> 01:23:30.210
and we've lost that I think is the core issue
1980
01:23:30.210 --> 01:23:33.520
of how you treat an act of terrorism.
1981
01:23:33.520 --> 01:23:37.520
Whether you can use the rubric of this as a war
1982
01:23:37.520 --> 01:23:39.931
even though my Obama calls it although he's moved again
1983
01:23:39.931 --> 01:23:43.880
toward the war paradigm more, we've lost that.
1984
01:23:43.880 --> 01:23:48.610
And once you start con being able to treat it as a war
1985
01:23:48.610 --> 01:23:52.100
and not as essentially a crime
1986
01:23:52.100 --> 01:23:54.920
you have the power on the presidency,
1987
01:23:54.920 --> 01:23:58.070
the power, the shift, the rigorousness
1988
01:23:58.070 --> 01:24:01.190
with which due process is applied is a shift.
1989
01:24:01.190 --> 01:24:03.820
And there's no doubt we've lost that battle.
1990
01:24:03.820 --> 01:24:05.700
We've lost that battle, we've lost some of these others
1991
01:24:05.700 --> 01:24:08.320
and, you know we've probably lost the torture debate
1992
01:24:08.320 --> 01:24:11.150
in the country so you know and it is well.
1993
01:24:11.150 --> 01:24:14.520
So it's not, you know it's not a great feeling right now,
1994
01:24:14.520 --> 01:24:15.840
you know although we have a lot of people,
1995
01:24:15.840 --> 01:24:18.340
look and 900 people went through Guantanamo,
1996
01:24:18.340 --> 01:24:20.830
I can't tell you the number probably Denbeaux can,
1997
01:24:20.830 --> 01:24:23.130
but you know the number that are actually walking
1998
01:24:23.130 --> 01:24:25.640
the streets as free men is probably, you know,
1999
01:24:25.640 --> 01:24:28.700
it might be 600 or more and you know,
2000
01:24:28.700 --> 01:24:29.700
how much that would have happened
2001
01:24:29.700 --> 01:24:32.180
without the work of this core of attorneys?
2002
01:24:32.180 --> 01:24:35.400
I mean I think we stopped the rampant lawlessness.
2003
01:24:35.400 --> 01:24:37.610
So at least there's some accountability
2004
01:24:37.610 --> 01:24:39.650
and some they have to justify.
2005
01:24:39.650 --> 01:24:41.240
Obama can't stand up there and say
2006
01:24:41.240 --> 01:24:43.030
I'm just the president I can do it,
2007
01:24:43.030 --> 01:24:45.320
he has to tell us why he's gonna do it
2008
01:24:45.320 --> 01:24:47.280
and he has to make an intelligent argument
2009
01:24:47.280 --> 01:24:48.250
to the American people.
2010
01:24:48.250 --> 01:24:51.173
So that's a shift, that's a positive shift.
2011
01:24:52.740 --> 01:24:57.740
But boy, I'm I just think it's been a rough eight years
2012
01:24:58.030 --> 01:24:59.569
I'll put it that way.
2013
01:24:59.569 --> 01:25:00.560
[Male Interviewer] I don't have much more to say,
2014
01:25:00.560 --> 01:25:03.120
but I, you know I'd like to just talk a little bit about,
2015
01:25:03.120 --> 01:25:05.430
I kept it for the end about CCRs involvement
2016
01:25:05.430 --> 01:25:10.090
in international issues because I thought CCR was unique
2017
01:25:10.090 --> 01:25:15.090
in filing lawsuits against Rumsfeld and other officials
2018
01:25:15.210 --> 01:25:18.620
and because nothing is going on today with Obama's decision
2019
01:25:18.620 --> 01:25:20.670
I thought maybe you could talk a little about
2020
01:25:20.670 --> 01:25:23.657
how you got involved in it, where you see that going.
2021
01:25:23.657 --> 01:25:27.540
Well, you know, international law played a huge role
2022
01:25:27.540 --> 01:25:30.020
in the beginning of Guantanamo and still today.
2023
01:25:30.020 --> 01:25:32.590
I remember when we drafted our first habeas petition
2024
01:25:32.590 --> 01:25:34.850
as I said my job, at least part of it
2025
01:25:34.850 --> 01:25:36.550
apart from some of the constitutional law
2026
01:25:36.550 --> 01:25:39.020
was adding arbitrary detention,
2027
01:25:39.020 --> 01:25:40.910
prolonged arbitrary detention
2028
01:25:40.910 --> 01:25:43.470
as well as the Geneva Conventions.
2029
01:25:43.470 --> 01:25:45.427
And even understanding that, you know,
2030
01:25:45.427 --> 01:25:47.470
the issues around self execution
2031
01:25:47.470 --> 01:25:49.740
and enforceability of some of those,
2032
01:25:49.740 --> 01:25:51.410
although we actually had a claim,
2033
01:25:51.410 --> 01:25:55.000
this, we had an Alien Tort Claim in the habeas petition
2034
01:25:55.000 --> 01:25:57.620
which is to say we had a petition saying
2035
01:25:57.620 --> 01:26:02.620
that the detention at Guantanamo violates the international,
2036
01:26:02.640 --> 01:26:04.710
customary international law and norm
2037
01:26:04.710 --> 01:26:07.240
of prolonged arbitrary detention
2038
01:26:07.240 --> 01:26:08.900
and we can sue on that directly.
2039
01:26:08.900 --> 01:26:11.580
We represent aliens the Guantanamo people,
2040
01:26:11.580 --> 01:26:15.090
against the US officials who are violating
2041
01:26:15.090 --> 01:26:16.340
international law.
2042
01:26:16.340 --> 01:26:19.520
And what's amazing in the result opinion,
2043
01:26:19.520 --> 01:26:23.390
the court held that there was jurisdiction under 1350
2044
01:26:23.390 --> 01:26:26.950
which is the Alien Tort Statute to use international law.
2045
01:26:26.950 --> 01:26:30.460
Now that provision goes back to the very origins
2046
01:26:30.460 --> 01:26:31.750
almost the origins of the Center
2047
01:26:31.750 --> 01:26:33.260
but particularly remarkable person
2048
01:26:33.260 --> 01:26:35.070
and Peter Weiss at the Center.
2049
01:26:35.070 --> 01:26:38.060
Who from the day I got to the Center in '71 or 2 or 3
2050
01:26:38.060 --> 01:26:39.490
or whatever right in there,
2051
01:26:39.490 --> 01:26:42.480
said I want you guys to put an international law claim
2052
01:26:42.480 --> 01:26:45.210
in every single complaint you file.
2053
01:26:45.210 --> 01:26:48.750
And one day we will get there and where we got there
2054
01:26:48.750 --> 01:26:50.420
the first big case was 1981
2055
01:26:52.790 --> 01:26:56.400
or '80 with the Filartiga case which said that US,
2056
01:26:56.400 --> 01:27:01.080
that aliens could sue officials from all over the world
2057
01:27:02.010 --> 01:27:03.330
when they came to the United States
2058
01:27:03.330 --> 01:27:06.240
for violations of customary international law.
2059
01:27:06.240 --> 01:27:08.180
And from that of course a whole,
2060
01:27:08.180 --> 01:27:12.040
that now you sue oil companies for, you know torture,
2061
01:27:12.040 --> 01:27:15.620
for moving, you know for all kinds of disappearances
2062
01:27:15.620 --> 01:27:18.340
you sue, I've sued the Haitians,
2063
01:27:18.340 --> 01:27:20.620
I've sued the Guatemalan torturers, you know everybody
2064
01:27:20.620 --> 01:27:24.900
we've done it and it directly went into Guantanamo.
2065
01:27:26.620 --> 01:27:28.390
And of course we then moved
2066
01:27:28.390 --> 01:27:31.900
as we got into the torture things in the last few years,
2067
01:27:31.900 --> 01:27:33.710
those of course are international law.
2068
01:27:33.710 --> 01:27:35.060
I mean yes they're domestic law
2069
01:27:35.060 --> 01:27:37.130
because the US has adopted those
2070
01:27:37.130 --> 01:27:39.940
you know parts of the treaties under its law
2071
01:27:39.940 --> 01:27:43.810
has implemented it, but when we saw really early on
2072
01:27:43.810 --> 01:27:47.190
that there was a failure to investigate and prosecute,
2073
01:27:47.190 --> 01:27:49.770
really the word is hold accountable US officials
2074
01:27:49.770 --> 01:27:52.640
for it was absolutely clear torture
2075
01:27:52.640 --> 01:27:54.400
and we tried everything we could.
2076
01:27:54.400 --> 01:27:57.620
I mean, we tried, we have still have pending civil cases
2077
01:27:57.620 --> 01:27:59.380
in this country, you know we of course went
2078
01:27:59.380 --> 01:28:01.531
to the commission but that doesn't have any-
2079
01:28:01.531 --> 01:28:02.364
[Male Interviewer] What commission?
2080
01:28:02.364 --> 01:28:03.540
Inter-American Commission
2081
01:28:03.540 --> 01:28:05.500
but that's not, it's not obligatory
2082
01:28:05.500 --> 01:28:07.400
but we tried civil cases here,
2083
01:28:07.400 --> 01:28:10.710
we still have a bunch of those, tried congressional stuff,
2084
01:28:10.710 --> 01:28:12.360
everybody we tried everything.
2085
01:28:12.360 --> 01:28:14.137
And then we decided we'd go to,
2086
01:28:14.137 --> 01:28:16.320
you know basically universal jurisdiction
2087
01:28:16.320 --> 01:28:19.700
or what, or cases in Europe under the national laws
2088
01:28:19.700 --> 01:28:21.370
of various countries in Europe
2089
01:28:21.370 --> 01:28:22.990
that coming out of the Second World War
2090
01:28:22.990 --> 01:28:26.013
have laws that say you and Geneva itself has it
2091
01:28:26.013 --> 01:28:29.580
that say you, if there's a crime of genocide
2092
01:28:29.580 --> 01:28:32.539
or it's a genocide convention or if there's
2093
01:28:32.539 --> 01:28:36.840
you know torture or similar kinds of activities
2094
01:28:36.840 --> 01:28:41.220
you can bring those cases anywhere in the world
2095
01:28:41.220 --> 01:28:44.690
and actually Filartiga case said you had this great language
2096
01:28:44.690 --> 01:28:46.560
saying the torturer is like a pirate
2097
01:28:46.560 --> 01:28:48.450
and can be brought to justice
2098
01:28:48.450 --> 01:28:50.520
wherever found or wherever in the world.
2099
01:28:50.520 --> 01:28:52.670
So that's when we started going after Rumsfeld
2100
01:28:52.670 --> 01:28:53.887
and others in Germany.
2101
01:28:53.887 --> 01:28:55.970
And we brought two cases in Germany
2102
01:28:57.270 --> 01:28:59.730
and then I'm actually going on Sunday,
2103
01:28:59.730 --> 01:29:02.210
a week from Sunday to Berlin again
2104
01:29:02.210 --> 01:29:04.810
and we're meeting with the Spanish attorneys
2105
01:29:04.810 --> 01:29:07.070
to work on our intervention in the Spanish cases
2106
01:29:07.070 --> 01:29:09.870
against the what are called the Bush Six
2107
01:29:09.870 --> 01:29:13.610
which are the lawyers who formulated the torture policy
2108
01:29:13.610 --> 01:29:15.780
as well as the Guantanamo issues
2109
01:29:15.780 --> 01:29:19.290
and it's not wild stuff because Spain actually has a link
2110
01:29:19.290 --> 01:29:20.870
with the Guantanamo cases
2111
01:29:20.870 --> 01:29:23.530
because four of the Guantanamo detainees
2112
01:29:23.530 --> 01:29:26.150
had either Spanish nationals, Spanish citizens
2113
01:29:26.150 --> 01:29:27.350
or passed through Spain.
2114
01:29:28.260 --> 01:29:30.130
So we're looking at those cases
2115
01:29:30.130 --> 01:29:32.070
partly for justice on their own,
2116
01:29:32.070 --> 01:29:33.820
but partly 'cause there's nothing happening
2117
01:29:33.820 --> 01:29:35.650
in the United States.
2118
01:29:35.650 --> 01:29:37.827
And of course Obama is saying he was looking forward
2119
01:29:37.827 --> 01:29:40.430
and not backward, to me that's crazy.
2120
01:29:40.430 --> 01:29:44.420
I mean, looking forward is looking to a world
2121
01:29:44.420 --> 01:29:47.510
without torture and you do that by looking back
2122
01:29:47.510 --> 01:29:51.010
by prosecuting and holding accountable torturers in the past
2123
01:29:51.010 --> 01:29:53.670
even for those that are currently in government.
2124
01:29:53.670 --> 01:29:56.050
So we have a huge involvement with international law
2125
01:29:56.050 --> 01:29:58.150
in fact I taught it for years and that's,
2126
01:29:58.150 --> 01:29:59.850
I have a book called "International Human Rights
2127
01:29:59.850 --> 01:30:01.267
Litigation in US Courts."
2128
01:30:01.267 --> 01:30:03.030
[Male Interviewer] What kind of press do you get
2129
01:30:03.030 --> 01:30:06.220
for filing your international cases against Rumsfeld?
2130
01:30:06.220 --> 01:30:08.100
Well we did pretty well actually in the beginning.
2131
01:30:08.100 --> 01:30:10.650
In the European, in the German cases
2132
01:30:11.590 --> 01:30:14.690
the second filling I brought Janis Karpinski over with me,
2133
01:30:14.690 --> 01:30:17.210
who was the Brigadier General who was disciplined
2134
01:30:17.210 --> 01:30:20.330
and tossed out really for what happened in the prisons
2135
01:30:20.330 --> 01:30:23.210
in Abu Ghraib, who was willing to testify
2136
01:30:23.210 --> 01:30:25.360
before the Germans about Rumsfeld's role
2137
01:30:25.360 --> 01:30:27.660
and the signs that were put up in all that,
2138
01:30:27.660 --> 01:30:29.410
the Germans because of political reasons
2139
01:30:29.410 --> 01:30:31.410
ultimately dismissed the case
2140
01:30:31.410 --> 01:30:34.010
and so Janis never testified, but that press,
2141
01:30:34.010 --> 01:30:35.910
in Berlin we had a couple hundred people
2142
01:30:35.910 --> 01:30:38.470
or press in the room and it actually had a full page
2143
01:30:38.470 --> 01:30:40.040
in the Times.
2144
01:30:40.040 --> 01:30:43.510
German, Spain is interesting because even though they try
2145
01:30:43.510 --> 01:30:44.920
and say this is all symbolic
2146
01:30:44.920 --> 01:30:46.990
and Rumsfeld is never gonna go to jail
2147
01:30:46.990 --> 01:30:50.440
in fact, it Garzon now and there's two judges
2148
01:30:50.440 --> 01:30:53.950
Garzon and Velasko there's two companion cases in Spain,
2149
01:30:53.950 --> 01:30:56.810
but they have a right to issue arrest warrants in Spain
2150
01:30:56.810 --> 01:31:01.810
and warrants to testify and right now even as we speak
2151
01:31:01.880 --> 01:31:02.840
those cases have been opened
2152
01:31:02.840 --> 01:31:04.820
or at least one of them has been opened
2153
01:31:04.820 --> 01:31:06.290
and there may be for all I know
2154
01:31:06.290 --> 01:31:10.140
arrest warrants already issued for Rumsfeld and others
2155
01:31:10.140 --> 01:31:12.230
which means that they cannot safely
2156
01:31:12.230 --> 01:31:13.920
and they probably have not gone
2157
01:31:13.920 --> 01:31:15.410
the what are called the Schengen countries
2158
01:31:15.410 --> 01:31:18.320
which are 26 or 27 countries that make up the EU
2159
01:31:18.320 --> 01:31:21.480
European union and the trading block.
2160
01:31:21.480 --> 01:31:23.360
So it's not true that these are symbolic.
2161
01:31:23.360 --> 01:31:27.040
These guys are already in deep
2162
01:31:27.040 --> 01:31:29.320
and of course look what happened to the CIA in Italy,
2163
01:31:29.320 --> 01:31:32.500
you know the CIA kidnapped Egyptian cleric from the streets
2164
01:31:32.500 --> 01:31:36.880
and an incredible judge investigating judge actually
2165
01:31:36.880 --> 01:31:38.990
indicted them and they were convicted
2166
01:31:38.990 --> 01:31:42.420
and you know one the guy lost his house in Italy
2167
01:31:42.420 --> 01:31:45.100
and they can't go, they can't move around at all
2168
01:31:45.100 --> 01:31:47.540
and they know the names of a bunch of them.
2169
01:31:47.540 --> 01:31:50.200
So there's some, you know there's some shift going on
2170
01:31:50.200 --> 01:31:51.190
of course there's a fight back,
2171
01:31:51.190 --> 01:31:53.120
there's always a fight back by the governments
2172
01:31:53.120 --> 01:31:56.380
and others that say change the law, get rid of it,
2173
01:31:56.380 --> 01:31:57.840
but I think the torture stuff, even though Europe had
2174
01:31:57.840 --> 01:32:01.150
you know a dual role on some of the stuff at ransom
2175
01:32:01.150 --> 01:32:05.370
at the secret prisons, particularly Poland, Romania,
2176
01:32:05.370 --> 01:32:10.240
I think Lithuania as well, I think they're pretty upset
2177
01:32:10.240 --> 01:32:13.360
on a certain level by the torture stuff, really upset by it
2178
01:32:13.360 --> 01:32:17.330
and there're, you know because, I think after the war
2179
01:32:17.330 --> 01:32:18.930
they'd just decided enough of the war stuff,
2180
01:32:18.930 --> 01:32:20.360
enough of this let's do something else
2181
01:32:20.360 --> 01:32:22.260
and they have a little more rule of law stuff
2182
01:32:22.260 --> 01:32:24.690
than we do I think that has worked to their benefit.
2183
01:32:24.690 --> 01:32:28.010
So I think it's gonna continue and it took 35 years
2184
01:32:28.010 --> 01:32:30.280
to get Pinochet and I don't think it'll take that long
2185
01:32:30.280 --> 01:32:32.287
to get these guys but we'll see.
2186
01:32:32.287 --> 01:32:34.190
[Male Interviewer] You think we would get them one day?
2187
01:32:34.190 --> 01:32:36.193
I'm hopeful, we'll see what happens
2188
01:32:36.193 --> 01:32:38.763
with the Spanish cases are our best hope right now.
2189
01:32:39.740 --> 01:32:42.270
And I'm really, I was more enthusiastic
2190
01:32:42.270 --> 01:32:45.120
before their attempts to get rid of Garzon
2191
01:32:45.120 --> 01:32:48.240
but 'cause he would have not stopped at this.
2192
01:32:48.240 --> 01:32:49.670
So we'll have to see what politics,
2193
01:32:49.670 --> 01:32:51.300
I mean to the extent there's countries in Europe
2194
01:32:51.300 --> 01:32:54.500
Italy and Spain are the two where the investigating judges
2195
01:32:54.500 --> 01:32:56.890
are independent of a judicial,
2196
01:32:56.890 --> 01:32:58.300
of a political judicial system.
2197
01:32:58.300 --> 01:32:59.720
Germany is a unified system
2198
01:32:59.720 --> 01:33:03.420
and so we were bound to lose in Germany.
2199
01:33:03.420 --> 01:33:06.105
We came close, but we were probably gonna lose.
2200
01:33:06.105 --> 01:33:07.170
[Male Interviewer] You knew probably in France too.
2201
01:33:07.170 --> 01:33:08.670
Yeah we lost, that was ridiculous
2202
01:33:08.670 --> 01:33:10.840
how we lost in France I have no idea.
2203
01:33:10.840 --> 01:33:13.610
Again it's a unified system because France,
2204
01:33:13.610 --> 01:33:17.930
you know France is, like we had Rumsfeld in Paris,
2205
01:33:17.930 --> 01:33:21.000
which when you have the torturer in the country,
2206
01:33:21.000 --> 01:33:22.340
that's everywhere in the world
2207
01:33:22.340 --> 01:33:23.810
that's not even universal jurisdiction
2208
01:33:23.810 --> 01:33:25.150
that's just the torturer is there
2209
01:33:25.150 --> 01:33:29.900
that's the Torture Convention and we filed the case,
2210
01:33:29.900 --> 01:33:32.600
Rumsfeld gave his talk and then he walks out the back door
2211
01:33:32.600 --> 01:33:34.600
into the embassy and escapes the country
2212
01:33:34.600 --> 01:33:36.430
but then the case gets dismissed.
2213
01:33:36.430 --> 01:33:40.816
So I can't explain it, yeah I can explain it but not well.
2214
01:33:40.816 --> 01:33:41.649
[Male Interviewer] Well.
2215
01:33:41.649 --> 01:33:42.482
Okay good.
2216
01:33:42.482 --> 01:33:43.315
[Male Interviewer] Do you have a, do you wanna close
2217
01:33:43.315 --> 01:33:45.332
with anything Michael? Anything that I didn't ask you?
2218
01:33:45.332 --> 01:33:46.345
No I think you did, I think it's-
2219
01:33:46.345 --> 01:33:47.178
[Male Interviewer] I think it was great
2220
01:33:47.178 --> 01:33:49.410
you know really fascinating in terms of
2221
01:33:49.410 --> 01:33:50.360
I didn't know a lot of that.
2222
01:33:50.360 --> 01:33:53.400
No well you must have known.
2223
01:33:53.400 --> 01:33:55.163
[Lady Interviewer] Did you get signed statements?
2224
01:33:55.163 --> 01:33:56.257
Yeah I gave him one.
2225
01:33:56.257 --> 01:33:57.660
[Lady Interviewer] Right, 'cause there were a couple
2226
01:33:57.660 --> 01:34:00.010
of quotes that would be great snippets
2227
01:34:00.010 --> 01:34:01.271
on their website.
2228
01:34:01.271 --> 01:34:02.197
Whatever you want.
2229
01:34:02.197 --> 01:34:03.267
[Lady Interviewer] Yeah that I was taking.
2230
01:34:03.267 --> 01:34:06.297
Just not one in which I criticize somebody.
2231
01:34:06.297 --> 01:34:08.180
[Lady Interviewer] No nothing personal.
2232
01:34:08.180 --> 01:34:09.380
That's what I mean.
2233
01:34:09.380 --> 01:34:11.320
[Lady Interviewer] I know, but the piece
2234
01:34:11.320 --> 01:34:13.120
where you kinda talk about 911
2235
01:34:13.120 --> 01:34:16.130
and then sort of the hysteria.
2236
01:34:16.130 --> 01:34:18.503
Oh that's fine all that stuff I don't mind.
2237
01:34:18.503 --> 01:34:19.890
[Male Interviewer] There's another really good quote
2238
01:34:19.890 --> 01:34:21.860
that Michael gave that was more recent
2239
01:34:21.860 --> 01:34:24.790
in the last 15, 20 minutes that I thought was great
2240
01:34:24.790 --> 01:34:26.270
I was gonna watch the video.
2241
01:34:26.270 --> 01:34:27.753
I'll send you a copy of the video
2242
01:34:27.753 --> 01:34:29.758
if we do it but I was gonna grab that
2243
01:34:29.758 --> 01:34:31.723
'cause it was something really powerful I thought.
2244
01:34:31.723 --> 01:34:33.040
[Lady Interviewer] Well I think also the quotes
2245
01:34:33.040 --> 01:34:36.810
about the restrictions that the lawyers
2246
01:34:36.810 --> 01:34:38.730
I don't think we have anything on that.
2247
01:34:38.730 --> 01:34:42.150
The fact that the lawyers have such limited access
2248
01:34:42.150 --> 01:34:43.200
is another really important bit.
2249
01:34:43.200 --> 01:34:45.437
It's really, it's.
2250
01:34:45.437 --> 01:34:47.460
[Male Interviewer] Right I know, no, you really did,
2251
01:34:47.460 --> 01:34:49.090
the reason why I asked you, I might know the answer
2252
01:34:49.090 --> 01:34:50.040
but the reason why I asked you that
2253
01:34:50.040 --> 01:34:51.920
it's 'cause you're the one talking
2254
01:34:51.920 --> 01:34:53.073
and you know and when I asked you
2255
01:34:53.073 --> 01:34:54.803
to find those for lawyers you just told me
2256
01:34:54.803 --> 01:34:57.210
because I think people need to see the breadth
2257
01:34:57.210 --> 01:35:00.670
of lawyers were you know really confined by the government
2258
01:35:00.670 --> 01:35:05.020
that it wasn't just the, you know people in Guantanamo
2259
01:35:05.020 --> 01:35:06.670
the fact is they did everything they can
2260
01:35:06.670 --> 01:35:07.600
to stop I mean the lawyers
2261
01:35:07.600 --> 01:35:09.367
It's still going on it's just terrible.
2262
01:35:09.367 --> 01:35:11.130
[Male Interviewer] Yeah it's still going right
2263
01:35:11.130 --> 01:35:13.220
and you know I think it's also important
2264
01:35:13.220 --> 01:35:16.040
and I, you know for you to talk about how Obama
2265
01:35:16.040 --> 01:35:17.720
has disappointed these other people have too
2266
01:35:17.720 --> 01:35:20.430
but I think, you know in the future people need to know
2267
01:35:20.430 --> 01:35:22.191
because everybody will have thought of Obama
2268
01:35:22.191 --> 01:35:26.190
as this godsend and it's important to hear that-
2269
01:35:26.190 --> 01:35:27.810
No it's been really, you know,
2270
01:35:27.810 --> 01:35:29.670
I'm sure that, it's so similar
2271
01:35:29.670 --> 01:35:31.550
to our first Guantanamo experience with Clinton
2272
01:35:31.550 --> 01:35:33.377
it's just like, you could write it,
2273
01:35:33.377 --> 01:35:35.030
you could write the script and we have,
2274
01:35:35.030 --> 01:35:37.280
I have a book, what's it called?
2275
01:35:37.280 --> 01:35:39.330
I wrote a Harvard lawyer, some lawyer article
2276
01:35:39.330 --> 01:35:40.380
where I talked about.