WEBVTT
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Okay, we're rolling.
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Okay, good morning.
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Morning to you.
Thank you.
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We are very grateful to you
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for participating in the
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Witness to Guantanamo Project.
Happy to be here.
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Okay.
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We invite you to speak of your experiences
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and involvement with detainees
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who are held at Guantanamo Bay, Cuba.
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We are hoping to provide you
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with an opportunity to tell your story
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in your own words.
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We are creating an archive
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of stories so that people in America
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and around the world will have a better understanding
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of what you and others have experienced and observed.
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Future generations must know what happened at Guantanamo
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and by telling you a story you contributing to history.
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We appreciate your courage
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and willingness to speak with us today.
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Happy to.
Thank you.
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And if there's any time during then interview
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you wanna take a break, let me know.
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And if there's something you said
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you'd like us to remove, we can remove it
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if you let us know as well.
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Okay.
And we'd like to begin
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with some basic or general information,
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beginning with your name and hometown and birthdate perhaps.
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My name is Joe Margulies.
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I live now in Chicago
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and I was born October 6, 1960.
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Which makes you?
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And your marital status and education?
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I'm married and I have a law degree.
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And current occupation?
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I'm a lawyer and law professor.
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Okay, and where are you a law professor?
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Northwestern University.
Okay.
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Is there anything else about your schooling
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or background that you think might be helpful
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before we move on?
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You guys can judge better than I can what's helpful.
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I'm happy to answer anything you ask though.
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Okay, well then why don't we begin
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and say how it was that you became involved
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in Guantanamo 'cause you were there
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on the ground floor when it just started.
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Right.
And maybe you can say
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how you were brought in,
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then we can go from there.
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Okay.
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So the story begins with the President's,
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this is President Bush,
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President's announcement on November 13 of 2001.
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That's when he first announced the plan
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for military commissions.
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At that time, we now know
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that they were considering Guantanamo,
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but they hadn't announced that yet.
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It was just at that point, a plan for military commissions.
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And as they were originally described,
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the Commission's Board,
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no relationship to what you and I have come to
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think of as a fair trial,
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the requirements of a fair trial.
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There's no presumption of innocence, for instance.
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There was no right to remain silent and so on.
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It was obvious even with that first announcement
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that this could prove very problematic.
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And at that moment in time
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there were the beginning of very worrisome indications
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that the United States might go astray
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in its response to 9/11.
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For instance, Alan Dershowitz had already proposed
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his torture warrants.
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There was already talk that the people who were held
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would not be entitled to protections
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under the Geneva Conventions.
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There was, 9/11 had been constructed
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within minutes of the attack as not only an act of war,
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but an act of war for which the
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most important response had to be
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securing greater intelligence.
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It was perceived immediately as an intelligence failure.
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And immediately the key to preventing the next 9/11
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was gathering intelligence.
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And when you add that to talk about
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breaking down protections for prisoners
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and I don't know maybe torture
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isn't such a bad idea after all,
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there was a great deal of concern,
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at least among some of us.
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So after that phone call,
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or after that announcement on the 13th,
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my wife and I put together a very small,
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a conference call basically.
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We reached out to friends of ours
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in the death penalty and human rights communities
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that we thought would be interested in this issue.
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I'm sorry to interrupt you,
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but can you just give us some background?
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What were you doing at that time?
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We were living in Minneapolis at that time.
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I was a criminal defense lawyer and a civil rights lawyer.
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So my background is,
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I've always been, I graduated from law school in '88.
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I clerked for one year,
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then I went down to Texas
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and started doing death penalty work
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representing folks on death row in Texas.
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And moved to Minneapolis
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and began just being a indigent criminal defense lawyer
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in '93 or four, I think.
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And so I was in, by that time I was in private practice
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doing civil rights, criminal defense,
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and still some capital defense work.
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And your wife you said you were,
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she wrote the letter with you.
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No it wasn't a letter,
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it was just, we reached out to folks and made emails
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and set up a conference call and phone calls.
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My wife is Sandra Babcock.
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Sandra is a very prominent and gifted death penalty lawyer
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who I met in Texas doing death penalty work.
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And her practice at that time was
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representing folks on death row around the country,
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but mostly in Texas
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and mostly on behalf of Mexican nationals.
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That's her focus, her niche is
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the representation of foreign nationals
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and the importation of international human rights norms
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into domestic capital litigation.
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So as it happened,
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she just happened to be very busy at that period
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and so couldn't really remain involved in this.
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But the first phone call that took place
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on like a few days after the 13th.
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My memory is that the 13th he makes the announcement,
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we read about it on the morning of the 14th,
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sitting around our kitchen table
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reading the newspaper and think, well this isn't right.
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And we put together this phone call
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and we reached out to the Center for Constitutional Rights,
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Michael Ratner, who Sandra knew,
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I didn't know him at that time.
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I knew of him, but I didn't know him.
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And Michael reached out to people like Jules Lobel,
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who's worked with Michael.
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He's a lawyer at the University of Pittsburgh.
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We reached out to David Cole at Georgetown,
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Clive Stafford Smith, who was a colleague of ours
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down in new Orleans, from our death penalty world.
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A couple of other people in the death penalty community.
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And we had a phone call.
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My memory is,
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he makes the makes the announcement on a Tuesday,
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I think, I wanna say November 13th is a Tuesday.
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So we reach out to people on a Wednesday
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and we have the phone call for Friday.
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And that phone call eventually became
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the team that handled the litigation in Rasul.
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That distilled down and the core became
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a couple of lawyers at CCR,
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Michael Ratner and Steven Watt,
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and me and Clive Stafford Smith.
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So that was the, that was the beginning, the four of us.
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How did that happen?
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How did you coalesce in that direction?
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Well, you know, there's a natural tendency,
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people who are busy, say look, I'm with you guys,
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but I just can't, I can't do it right now.
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And that's how it, you sort of slough off some people.
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Not for want of interest and not for want of commitment,
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but time and resources.
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But, the other people
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were on board with you?
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Had they also thought about this issue?
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Well everybody had the same reaction.
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Everybody who heard the announcement
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had the same reaction, which is...
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You know, I shouldn't say everybody.
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Everybody that I reached out to.
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But we later discovered when we were trying to
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enlist other partners,
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when it was time to file, for instance,
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we filed in February of 2002,
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when shortly after prisoners first arrived,
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it was obvious that a lotta people did not share our view
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at that moment.
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Now in time, they all came around,
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but that was a little early for people.
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But in that group, everybody was of the same mind.
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Now that didn't mean we knew how to frame the lawsuit.
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We didn't know what the lawsuit would be.
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We thought originally, I mean,
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people I think sometimes lose sight of this,
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we originally expected that this was gonna be a challenge to
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the military commissions.
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Because at that time you gotta remember,
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it wasn't clear that this was gonna be
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a system of just indefinite detention.
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What had been announced was,
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we're gonna try people by military commission.
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And the best evidence is that the administration
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actually believed that the people
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that they bring in Guantanamo
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would be folks you could bring in front of tribunals.
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So I think the expectation all the way around was
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this was gonna be a system of
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prosecutions that lacked
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the fundamental indicia of fairness,
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what eventually became the litigation in Hamdan.
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It didn't dawn on us
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until January of 2002, when this group,
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and I sort of took the lead by coming up with the research
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and identifying Johnson versus Eisentrager
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which was the key case that the government relied on
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to argue that there was no jurisdiction
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and making arguments about,
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you know starting to do the research
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on the nature of Guantanamo.
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And we have actually had a meeting at CCR in January.
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We'd all been working on it for about six weeks or so.
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And we had a meeting,
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and by that time, David Hicks was in custody.
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David Hicks was at the base.
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So the base it opened.
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So the base opens January 11th of 2002,
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that's when the first prisoners arrived.
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And David was on the, you know
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one of the very first flights there.
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And we had a meeting at CCR in New York
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on their offices on on Broadway.
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And Clive was on the phone as I recall
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and I was there and Michael and Steven Watt
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and maybe some other people were calling in.
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And also on the line was a lawyer from Adelaide, Wisconsin,
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Wisconsin, Adelaide, Australia, whose name is Steve Kenny.
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And Steve was counsel for David Hicks's father.
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David Hicks' father,
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we learned from the Australian government
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that David was in custody.
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And Steve Kenny was encouraging us to
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challenge his detention.
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He says, you gotta file something.
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We don't know what his condition is.
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He's not charging with anything.
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And I remember in that call saying,
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well the problem is Steve,
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they haven't charged them in commissions yet.
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There's no, there's no prosecution,
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there's nothing to charge,
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there's nothing to challenge yet.
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And Steve, who's a very, very good lawyer,
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and I, you know, I've always given credit
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where credit is due said,
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Joe you don't understand, they'll never charge him.
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The whole point is they'll just hold him.
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Why should they charge him,
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if they can just hold him and accomplish the same thing?
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This is not a case about challenging some
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military commission prosecution that may happen or may not,
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this is about indefinite detention.
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And then a light goes on over my head, ah.
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And that's the moment that
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it became clear to me what Guantanamo was
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and how it had to be challenged.
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00:11:38.910 --> 00:11:42.250
And from that moment, the challenge became
271
00:11:42.250 --> 00:11:44.500
can you hold people simply beyond the law?
272
00:11:44.500 --> 00:11:46.400
Can you just sort of wave a magic wand and say,
273
00:11:46.400 --> 00:11:48.429
poof you have no right
274
00:11:48.429 --> 00:11:50.730
except for those that we bestow upon you
275
00:11:50.730 --> 00:11:52.320
as a matter of grace?
276
00:11:52.320 --> 00:11:53.780
You don't have a right say,
277
00:11:53.780 --> 00:11:55.880
wait a second, I'm the wrong guy.
278
00:11:55.880 --> 00:11:57.260
You don't have a right to challenge anything
279
00:11:57.260 --> 00:11:59.320
about the conditions in which you're being held.
280
00:11:59.320 --> 00:12:01.970
You don't have a right to say, I didn't do anything wrong.
281
00:12:01.970 --> 00:12:03.210
No, no, no, no, no, no,
282
00:12:03.210 --> 00:12:05.400
and they can just hold you forever?
283
00:12:05.400 --> 00:12:07.510
That's when Rasul was born
284
00:12:07.510 --> 00:12:10.950
and all the subsequent litigation about habeas was sort of,
285
00:12:10.950 --> 00:12:14.080
including Padilla, Hamdi,
286
00:12:14.080 --> 00:12:16.630
sort of originated at that moment.
287
00:12:16.630 --> 00:12:19.710
Did everyone go on board with you when
288
00:12:19.710 --> 00:12:21.870
after Steve Kenny hung up the phone?
289
00:12:21.870 --> 00:12:23.050
I guess you--
290
00:12:23.050 --> 00:12:23.883
It was obvious.
291
00:12:23.883 --> 00:12:25.550
I don't know, I can't speak for the other guys,
292
00:12:25.550 --> 00:12:29.590
but I'm a member saying, oh well this, now it's clear.
293
00:12:29.590 --> 00:12:30.970
And I went back to my office
294
00:12:30.970 --> 00:12:34.770
and wrote the complaint that became Rasul,
295
00:12:34.770 --> 00:12:36.170
the petition for writ of habeas corpus
296
00:12:36.170 --> 00:12:37.363
that we filed in Rasul.
297
00:12:39.217 --> 00:12:41.070
Did you feel lonely?
298
00:12:41.070 --> 00:12:43.990
Did you feel like it was just a few of you against the world
299
00:12:43.990 --> 00:12:47.330
in the sense that very few lawyers were involved in this
300
00:12:47.330 --> 00:12:48.163
at that point?
301
00:12:48.163 --> 00:12:48.996
Did that matter to you?
302
00:12:48.996 --> 00:12:50.080
Did you care about that?
303
00:12:50.080 --> 00:12:50.913
No.
304
00:12:53.240 --> 00:12:57.380
So it's very important to me that this not come across
305
00:12:57.380 --> 00:13:02.380
as immodest or anything other than what it is.
306
00:13:03.260 --> 00:13:07.330
But death penalty lawyers, civil rights lawyers,
307
00:13:07.330 --> 00:13:10.210
which is what I was, criminal defense lawyers,
308
00:13:10.210 --> 00:13:15.210
never have the cheering section on their side.
309
00:13:15.770 --> 00:13:18.390
So you know, you have a group of people
310
00:13:18.390 --> 00:13:19.866
who believe in what they're doing
311
00:13:19.866 --> 00:13:23.840
and believe they're doing the right thing working with us,
312
00:13:23.840 --> 00:13:26.750
working with me and that's what I've,
313
00:13:26.750 --> 00:13:29.230
I didn't perceive it as strange at all.
314
00:13:29.230 --> 00:13:30.380
Which is why when people say to me,
315
00:13:30.380 --> 00:13:31.970
Joe it's so heroic that you were,
316
00:13:31.970 --> 00:13:33.170
you know you were the first
317
00:13:33.170 --> 00:13:34.500
and everybody else wouldn't get involved.
318
00:13:34.500 --> 00:13:36.304
I had no conception of that
319
00:13:36.304 --> 00:13:38.290
and I've always been resistant to that.
320
00:13:38.290 --> 00:13:40.050
Why do you think death penalty lawyers
321
00:13:40.050 --> 00:13:42.720
were the core of this group?
322
00:13:42.720 --> 00:13:44.010
Well I'm not sure I would say,
323
00:13:44.010 --> 00:13:45.657
I don't, it's very important to me,
324
00:13:45.657 --> 00:13:47.793
you know, we won Rasul and people think
325
00:13:47.793 --> 00:13:51.003
that there's something honorable about what we did.
326
00:13:51.003 --> 00:13:52.261
And so therefore when,
327
00:13:52.261 --> 00:13:56.710
you know success has many fathers and failures an orphan.
328
00:13:56.710 --> 00:13:59.690
I'm the first to say, I've lost plenty a cases.
329
00:13:59.690 --> 00:14:00.790
I lose all the damn time.
330
00:14:00.790 --> 00:14:03.060
I've gotten my kicked over and over and over again.
331
00:14:03.060 --> 00:14:05.560
I've made bad law in multiple jurisdictions
332
00:14:05.560 --> 00:14:07.264
all over the country.
333
00:14:07.264 --> 00:14:09.573
And so I'm very, also very quick to say,
334
00:14:10.740 --> 00:14:11.950
I wanna resist the idea
335
00:14:11.950 --> 00:14:14.070
that death penalty lawyers were the core.
336
00:14:14.070 --> 00:14:15.780
Clive and I were very important in the beginning,
337
00:14:15.780 --> 00:14:18.274
but so were Michael and Steven Watt.
338
00:14:18.274 --> 00:14:19.747
I will say that within CCR
339
00:14:19.747 --> 00:14:22.620
and CCR is a very progressive organization,
340
00:14:22.620 --> 00:14:24.380
there was some resistance,
341
00:14:24.380 --> 00:14:26.853
even within an organization like CCR
342
00:14:26.853 --> 00:14:28.700
to get involved in these, getting involved in these cases.
343
00:14:28.700 --> 00:14:29.983
Why is that?
344
00:14:32.081 --> 00:14:33.240
You know, put yourself back in that time.
345
00:14:33.240 --> 00:14:34.370
These were...
346
00:14:36.210 --> 00:14:37.170
First of all, you know,
347
00:14:37.170 --> 00:14:39.200
the administration had demonized them.
348
00:14:39.200 --> 00:14:41.140
You remember, these are the worst of the worst.
349
00:14:41.140 --> 00:14:43.910
David Hicks is the guy they were talking about
350
00:14:43.910 --> 00:14:47.160
when they said he would chew through the hydraulic lines
351
00:14:47.160 --> 00:14:50.200
of a C30 to bring it down and crash the plane.
352
00:14:50.200 --> 00:14:52.928
And that's what they were saying, that's the guy.
353
00:14:52.928 --> 00:14:55.160
Now David Hicks is a nebbish.
354
00:14:55.160 --> 00:14:57.640
And David Hicks is a perfectly nice guy.
355
00:14:57.640 --> 00:15:00.730
You know, he's no more a hardened terrorist
356
00:15:00.730 --> 00:15:02.800
than I'm gonna sprout wings and fly away.
357
00:15:02.800 --> 00:15:04.500
But, you know, they were saying all
358
00:15:04.500 --> 00:15:06.020
these bad things about people.
359
00:15:06.020 --> 00:15:07.680
And however much folks
360
00:15:08.780 --> 00:15:12.070
know at some intellectual level
361
00:15:12.070 --> 00:15:13.800
that the government exaggerates
362
00:15:13.800 --> 00:15:15.210
and they're given a hyperbole
363
00:15:15.210 --> 00:15:17.109
and that they always create worst of worst,
364
00:15:17.109 --> 00:15:19.899
there was a sense that I don't,
365
00:15:19.899 --> 00:15:21.047
maybe that's who these guys really are.
366
00:15:21.047 --> 00:15:25.170
And so there was a resistance to get involved at that stage.
367
00:15:25.170 --> 00:15:26.700
Did you did,
368
00:15:26.700 --> 00:15:31.540
another lawyer told us that he got 200 pieces of hate mail
369
00:15:31.540 --> 00:15:32.790
and death threats over a weekend
370
00:15:32.790 --> 00:15:36.360
when he filed a lawsuit early in that time period.
371
00:15:36.360 --> 00:15:39.060
Did you get any hate mail and death threats?
372
00:15:39.060 --> 00:15:40.630
I've always been amazed at those stories.
373
00:15:40.630 --> 00:15:43.028
I don't know where these guys practice.
374
00:15:43.028 --> 00:15:45.400
You know, when we filed,
375
00:15:45.400 --> 00:15:46.953
when we filed Rasul,
376
00:15:47.800 --> 00:15:50.000
which was petition for writ of habeas corpus,
377
00:15:50.000 --> 00:15:51.390
and it was the, it wasn't the first,
378
00:15:51.390 --> 00:15:53.850
it was the first one filed on behalf of clients.
379
00:15:53.850 --> 00:15:58.433
There was another case filed in in LA by Erwin Chemerinsky,
380
00:15:59.750 --> 00:16:00.740
which was terrific.
381
00:16:00.740 --> 00:16:02.490
It was wonderfully done,
382
00:16:02.490 --> 00:16:06.200
but they were doing it as next friend to a group,
383
00:16:06.200 --> 00:16:08.050
a religious group that had no clients
384
00:16:08.050 --> 00:16:10.450
and so they were quickly dismissed for want of standing.
385
00:16:10.450 --> 00:16:13.870
But the legal strategy was very, very sound.
386
00:16:13.870 --> 00:16:17.080
So we were the first to file on behalf of real people,
387
00:16:17.080 --> 00:16:19.030
and so ours was the one that went forward.
388
00:16:19.030 --> 00:16:23.580
And when we filed Clive got a death threat, a phone call,
389
00:16:23.580 --> 00:16:26.513
a threatening phone call at night at home.
390
00:16:27.705 --> 00:16:30.600
I got nothing like that.
391
00:16:30.600 --> 00:16:32.180
I was living in Minneapolis at the time
392
00:16:32.180 --> 00:16:33.669
and people saw my name in the Times
393
00:16:33.669 --> 00:16:36.750
and I got phone calls from old friends of mine,
394
00:16:36.750 --> 00:16:39.530
people hadn't seen me from law school in many years
395
00:16:39.530 --> 00:16:41.940
saying, you know, ah mazel tov, good for you.
396
00:16:41.940 --> 00:16:44.140
I wouldn't do it, but you know, good on you.
397
00:16:46.670 --> 00:16:49.920
I have over the years, when my name is associated
398
00:16:49.920 --> 00:16:53.710
with this event or that, gotten angry emails,
399
00:16:53.710 --> 00:16:55.310
never anything that's,
400
00:16:55.310 --> 00:16:56.900
that I would characterize as a death threat.
401
00:16:56.900 --> 00:16:58.512
And the ones actually that always
402
00:16:58.512 --> 00:16:59.880
are the most offensive to me
403
00:16:59.880 --> 00:17:03.020
are the ones that say that I'm a bad Jew,
404
00:17:03.020 --> 00:17:05.100
that I'm a bad Jew for doing this.
405
00:17:05.100 --> 00:17:06.090
Those are the ones that,
406
00:17:06.090 --> 00:17:10.003
those are the ones that are most confusing to me.
407
00:17:11.173 --> 00:17:14.230
How did you get Rasul as the client?
408
00:17:14.230 --> 00:17:19.230
So we originally were contacted by David Hicks's father.
409
00:17:19.717 --> 00:17:23.843
And at that time they were also,
410
00:17:25.400 --> 00:17:28.780
you know Rasul and the other Brits had also arrived.
411
00:17:28.780 --> 00:17:32.210
And what happened was they were allowed
412
00:17:32.210 --> 00:17:34.710
to send a letter home to their families,
413
00:17:34.710 --> 00:17:36.660
which would be delivered by the Red Cross.
414
00:17:36.660 --> 00:17:38.540
You know, it was read and censored by the United States
415
00:17:38.540 --> 00:17:39.760
and delivered by the Red Cross.
416
00:17:39.760 --> 00:17:42.540
And it's not accidental that the first clients who,
417
00:17:42.540 --> 00:17:44.570
or the first people who sort of spoke up,
418
00:17:44.570 --> 00:17:47.270
came from very Westernized cultures.
419
00:17:47.270 --> 00:17:48.530
Because when their families received this,
420
00:17:48.530 --> 00:17:51.250
the very thing they did is go to lawyers.
421
00:17:51.250 --> 00:17:54.490
And so the British lawyers who were contacted
422
00:17:54.490 --> 00:17:57.109
by the families of Asif Iqbal and
423
00:17:57.109 --> 00:18:02.109
Shafiq Rasul were human rights lawyers who knew Michael.
424
00:18:06.490 --> 00:18:08.515
And either Michael reached out to them
425
00:18:08.515 --> 00:18:11.365
or they reached out to Michael, I can't remember exactly.
426
00:18:12.460 --> 00:18:16.300
And he said, we're thinking about challenging this,
427
00:18:16.300 --> 00:18:18.280
do you want your clients to be involved?
428
00:18:18.280 --> 00:18:23.280
So originally it was those three, Rasul, Iqbal, and Hicks.
429
00:18:23.850 --> 00:18:28.850
And in April, Habib arrived at the base
430
00:18:28.920 --> 00:18:30.520
and he was the other Australian.
431
00:18:31.450 --> 00:18:34.690
And his family reached, knew about the lawsuit by this time
432
00:18:34.690 --> 00:18:36.400
and they reached out to us and we added them,
433
00:18:36.400 --> 00:18:37.770
him into the case.
434
00:18:37.770 --> 00:18:39.080
So it was those four.
435
00:18:39.080 --> 00:18:40.680
And then there were the Kuwaitis
436
00:18:41.761 --> 00:18:43.410
in the other case that was going up at the same time
437
00:18:43.410 --> 00:18:47.100
and they filed in May I think, and they joined us.
438
00:18:47.100 --> 00:18:48.510
Did you think there's a chance
439
00:18:48.510 --> 00:18:51.040
you might succeed?
Oh yeah.
440
00:18:51.040 --> 00:18:52.540
Did you really?
Oh yeah.
441
00:18:52.540 --> 00:18:53.540
Why?
442
00:18:54.510 --> 00:18:56.410
The same reason that we did succeed.
443
00:18:57.320 --> 00:18:58.670
Cause it was right.
444
00:18:58.670 --> 00:19:00.030
Well, you didn't in the lower courts.
445
00:19:00.030 --> 00:19:02.160
Were you surprised.
Oh you never do.
446
00:19:02.160 --> 00:19:04.310
You thought you would not prevail
447
00:19:04.310 --> 00:19:05.867
until you hit the Supreme Court?
448
00:19:05.867 --> 00:19:06.700
Is that what you were thinking
449
00:19:06.700 --> 00:19:07.632
all along this--
Of course.
450
00:19:07.632 --> 00:19:08.838
Did you even think the Supreme Court
451
00:19:08.838 --> 00:19:11.370
would take the case?
Absolutely.
452
00:19:11.370 --> 00:19:12.203
Why, why were you so confident
453
00:19:12.203 --> 00:19:13.480
about that?
Well confident's
454
00:19:13.480 --> 00:19:14.520
not quite the right word,
455
00:19:14.520 --> 00:19:16.370
but I didn't have any...
456
00:19:18.970 --> 00:19:20.620
What the administration was doing
457
00:19:20.620 --> 00:19:24.730
was a really exceptional thing.
458
00:19:24.730 --> 00:19:27.310
The idea that you will hold a prisoner
459
00:19:27.310 --> 00:19:30.080
utterly beyond legal protection.
460
00:19:30.080 --> 00:19:32.050
Now it is one thing to say
461
00:19:32.050 --> 00:19:34.500
the legal protection is one that cannot be enforced
462
00:19:34.500 --> 00:19:36.360
in a court, but we will nonetheless
463
00:19:36.360 --> 00:19:38.550
extend to them legal protections
464
00:19:38.550 --> 00:19:41.170
based on an extant framework
465
00:19:41.170 --> 00:19:43.120
that we will hold ourselves to.
466
00:19:43.120 --> 00:19:44.830
That's the Geneva Conventions.
467
00:19:44.830 --> 00:19:46.040
Geneva Conventions aren't,
468
00:19:46.040 --> 00:19:48.770
well query whether they are, it's a debatable term,
469
00:19:48.770 --> 00:19:50.650
whether they are enforceable in court.
470
00:19:50.650 --> 00:19:52.170
But if there had been a declaration,
471
00:19:52.170 --> 00:19:54.660
we will comply with the conventions,
472
00:19:54.660 --> 00:19:57.220
well maybe we wouldn't have gotten cert, right?
473
00:19:57.220 --> 00:19:58.530
And I remember having this conversation
474
00:19:58.530 --> 00:20:00.020
with Michael Chertoff, who was,
475
00:20:00.020 --> 00:20:02.380
you know Secretary of Homeland Security at the time,
476
00:20:02.380 --> 00:20:05.320
saying you know, these cases would probably go away,
477
00:20:05.320 --> 00:20:06.420
if you guys would just
478
00:20:07.440 --> 00:20:09.957
create a construct that you agree to be bound by.
479
00:20:09.957 --> 00:20:12.000
But they steadfastly refused.
480
00:20:12.000 --> 00:20:14.700
Well, that's a pretty remarkable statement to be made.
481
00:20:15.622 --> 00:20:17.650
You know, time will tell,
482
00:20:17.650 --> 00:20:18.990
we don't know because it's not,
483
00:20:18.990 --> 00:20:20.240
hasn't been released yet,
484
00:20:21.980 --> 00:20:26.090
from the deliberations of the court
485
00:20:26.090 --> 00:20:28.160
whether it was a tough question for them.
486
00:20:28.160 --> 00:20:30.760
But I didn't think that they would let
487
00:20:30.760 --> 00:20:32.310
something like Guantanamo pass.
488
00:20:34.773 --> 00:20:37.430
And once they took it, they don't take it to affirm it.
489
00:20:37.430 --> 00:20:39.260
There's no reason for them to take it to affirm it.
490
00:20:39.260 --> 00:20:40.610
They took it to reverse it,
491
00:20:41.515 --> 00:20:43.140
to reverse the DC circuit.
492
00:20:43.140 --> 00:20:44.590
Were other people who you worked with
493
00:20:44.590 --> 00:20:46.182
as confident or,
494
00:20:46.182 --> 00:20:48.341
if you don't wanna use the word confident,
495
00:20:48.341 --> 00:20:50.901
as sure as you that
496
00:20:50.901 --> 00:20:52.937
this case was going to go to the Supreme Court
497
00:20:52.937 --> 00:20:54.487
and they were gonna reverse it.
498
00:20:55.337 --> 00:20:56.640
Did people feel--
I don't know.
499
00:20:56.640 --> 00:20:59.440
I never really, I've never talked to Michael about this.
500
00:21:01.590 --> 00:21:03.084
Clive.
501
00:21:03.084 --> 00:21:04.084
Clive was...
502
00:21:05.900 --> 00:21:07.573
I, no, I don't, I don't know.
503
00:21:08.660 --> 00:21:11.280
So when the decision, Rasul decision was
504
00:21:11.280 --> 00:21:12.660
released by the Supreme Court,
505
00:21:12.660 --> 00:21:16.730
did you feel like it was over, that was the end of the game?
506
00:21:16.730 --> 00:21:17.563
Yeah.
507
00:21:19.810 --> 00:21:21.300
So we met a real,
508
00:21:21.300 --> 00:21:23.240
I don't want to attribute it to anybody else,
509
00:21:23.240 --> 00:21:25.553
made a real miscalculation at that point.
510
00:21:27.450 --> 00:21:30.820
What we knew at that point was that
511
00:21:31.840 --> 00:21:36.313
there was a thing that Guantanamo had become,
512
00:21:36.313 --> 00:21:41.313
and its purpose in life was as a
513
00:21:43.300 --> 00:21:46.200
an isolated interrogation chamber,
514
00:21:46.200 --> 00:21:48.840
a massive interrogation chamber
515
00:21:48.840 --> 00:21:51.023
free from any outside interference.
516
00:21:52.050 --> 00:21:55.420
And I remember telling, and it was after Rasul,
517
00:21:55.420 --> 00:21:56.790
that's when all the other lawyers came in,
518
00:21:56.790 --> 00:21:58.700
because now we were entitled to file habeas petitions
519
00:21:58.700 --> 00:22:00.520
on behalf of other people.
520
00:22:00.520 --> 00:22:03.590
So everybody gets a shot, so we need lawyers.
521
00:22:03.590 --> 00:22:05.440
And I remember telling those lawyers,
522
00:22:06.400 --> 00:22:09.110
the most important thing we can do
523
00:22:09.110 --> 00:22:11.610
to alter the character of Guantanamo
524
00:22:11.610 --> 00:22:13.720
is for you to go to the base.
525
00:22:13.720 --> 00:22:18.110
Because what I used to say is if we open it up,
526
00:22:18.110 --> 00:22:19.590
they'll shut it down.
527
00:22:19.590 --> 00:22:24.590
Because it can't exist in the form that it had become.
528
00:22:25.150 --> 00:22:27.880
If you could, what I would say to people is,
529
00:22:27.880 --> 00:22:32.590
look when you can bring your client a personal pan pizza,
530
00:22:32.590 --> 00:22:35.330
it is no longer a prison beyond the law.
531
00:22:35.330 --> 00:22:36.510
You know I don't care what else happens,
532
00:22:36.510 --> 00:22:38.700
you can bring your client fresh fruit
533
00:22:38.700 --> 00:22:41.617
and a cup a coffee and sit and play cards with him,
534
00:22:41.617 --> 00:22:46.180
its purpose as an interrogation chamber has ended.
535
00:22:46.180 --> 00:22:47.013
And so I thought,
536
00:22:47.013 --> 00:22:48.375
well if there's no purpose
537
00:22:48.375 --> 00:22:49.240
in an interrogation chamber,
538
00:22:49.240 --> 00:22:51.420
and they didn't let a lot of people go.
539
00:22:51.420 --> 00:22:54.020
What didn't realize is what would happen is
540
00:22:54.020 --> 00:22:56.010
it would transform from an interrogation chamber
541
00:22:56.010 --> 00:22:58.300
just to a long-term detention center.
542
00:22:58.300 --> 00:23:00.150
And that's what it now is.
543
00:23:00.150 --> 00:23:02.480
And as it became more politicized
544
00:23:02.480 --> 00:23:04.150
it became more difficult to,
545
00:23:04.150 --> 00:23:07.122
then you're trying to move symbols rather than people
546
00:23:07.122 --> 00:23:09.980
and then it became much more entrenched.
547
00:23:09.980 --> 00:23:11.500
That's where we are now.
548
00:23:11.500 --> 00:23:13.470
And I didn't foresee that.
549
00:23:13.470 --> 00:23:15.490
So what do you foresee
550
00:23:15.490 --> 00:23:17.283
the day of the decision?
551
00:23:18.401 --> 00:23:19.510
I remember Michael
552
00:23:19.510 --> 00:23:21.863
and I thought that it'd be closed in six months.
553
00:23:22.900 --> 00:23:24.493
Boy were we wrong here.
554
00:23:24.493 --> 00:23:26.529
Here we are 10 years later.
555
00:23:26.529 --> 00:23:27.731
I wanna go back to kind of
556
00:23:27.731 --> 00:23:29.900
what you described as interrogation center.
557
00:23:29.900 --> 00:23:31.760
What rumors did you hear,
558
00:23:31.760 --> 00:23:34.500
what did you hear during those two years
559
00:23:34.500 --> 00:23:35.713
between the time you filed
560
00:23:35.713 --> 00:23:38.680
and the decision that caused you to think like that?
561
00:23:38.680 --> 00:23:40.020
What did you know about Guantanamo?
562
00:23:40.020 --> 00:23:41.323
No one had been there.
563
00:23:42.350 --> 00:23:44.140
Well, that's interesting.
564
00:23:44.140 --> 00:23:49.140
I don't remember when I knew different things
565
00:23:49.622 --> 00:23:54.023
but we started to get word about,
566
00:23:55.680 --> 00:23:57.400
we hadn't yet heard of
567
00:23:57.400 --> 00:23:59.355
the enhanced interrogation techniques,
568
00:23:59.355 --> 00:24:04.355
but you started to get word about interrogation abuses.
569
00:24:04.390 --> 00:24:07.723
Like there were reports of interrogation abuses at Bagram.
570
00:24:10.360 --> 00:24:11.930
There were some...
571
00:24:15.154 --> 00:24:20.154
There was like an article by Mark Bowden in the Atlantic
572
00:24:20.210 --> 00:24:24.400
on the KUBARK manual, the CIA manual.
573
00:24:24.400 --> 00:24:28.130
This is really how you use, this is what really goes on.
574
00:24:28.130 --> 00:24:30.320
And that looked kind of eerily similar
575
00:24:30.320 --> 00:24:34.410
with what we were hearing, what's happening at places.
576
00:24:34.410 --> 00:24:37.253
There were rumors that the CIA was holding people.
577
00:24:38.507 --> 00:24:40.223
The mere fact that they wouldn't
578
00:24:40.223 --> 00:24:44.880
let anybody down there gave us pause.
579
00:24:44.880 --> 00:24:46.973
You know, there were those pictures
580
00:24:46.973 --> 00:24:49.120
when Guantanamo first opened,
581
00:24:49.120 --> 00:24:51.080
when they brought people there of the guys,
582
00:24:51.080 --> 00:24:53.630
you know, in blackout goggles and hoods,
583
00:24:53.630 --> 00:24:55.680
which is all about sensory deprivation.
584
00:24:55.680 --> 00:24:57.467
So you could sort of piece together that this was
585
00:24:57.467 --> 00:25:01.300
and of course we knew that their idea was that
586
00:25:01.300 --> 00:25:03.400
9/11 is an intelligence failure.
587
00:25:03.400 --> 00:25:04.620
There's this thing called the,
588
00:25:04.620 --> 00:25:06.520
you know the mosaic theory
589
00:25:06.520 --> 00:25:09.220
where everything is these little bitty tiles
590
00:25:09.220 --> 00:25:10.840
that may seem innocuous and innocent,
591
00:25:10.840 --> 00:25:13.660
but you've gotta put them on this massive, massive wall
592
00:25:13.660 --> 00:25:15.100
and move 'em around
593
00:25:15.100 --> 00:25:17.320
and, you know a tile might be insignificant
594
00:25:17.320 --> 00:25:18.400
until it's placed up there
595
00:25:18.400 --> 00:25:19.820
and then suddenly a pattern emerges.
596
00:25:19.820 --> 00:25:21.140
I mean, that's their theory.
597
00:25:21.140 --> 00:25:22.300
So therefore you gotta go back
598
00:25:22.300 --> 00:25:24.180
and ask this person about this tile
599
00:25:24.180 --> 00:25:26.090
over and over and over again,
600
00:25:26.090 --> 00:25:28.630
because it doesn't acquire meaning
601
00:25:28.630 --> 00:25:30.800
until it's clustered around others.
602
00:25:30.800 --> 00:25:32.410
And so therefore you gotta be able
603
00:25:32.410 --> 00:25:34.840
to interrogate 'em endlessly
604
00:25:34.840 --> 00:25:36.990
and you gotta be able to use whatever conditions you need
605
00:25:36.990 --> 00:25:39.130
to in order to have him tell you that.
606
00:25:39.130 --> 00:25:41.360
You can't leave any information on the ground
607
00:25:41.360 --> 00:25:42.430
in other words.
608
00:25:42.430 --> 00:25:45.600
There's these talk of, you know the 1% doctrine,
609
00:25:45.600 --> 00:25:46.721
things like that.
610
00:25:46.721 --> 00:25:47.820
I don't know when we learned that,
611
00:25:47.820 --> 00:25:49.220
but this was all coming out.
612
00:25:50.070 --> 00:25:52.660
And then of course we had the great, I mean,
613
00:25:52.660 --> 00:25:54.090
you gotta remember the...
614
00:25:55.620 --> 00:25:59.860
We argued April 20th, I wanna say.
615
00:25:59.860 --> 00:26:01.583
Well, what happened April 28th,
616
00:26:02.860 --> 00:26:07.710
which was the day that Hamdi and Padilla argued,
617
00:26:07.710 --> 00:26:09.170
two different times?
618
00:26:09.170 --> 00:26:10.460
Do you know what happened April 28th?
619
00:26:10.460 --> 00:26:11.363
You probably do.
620
00:26:12.427 --> 00:26:13.536
Is that Abu Ghraib.
621
00:26:13.536 --> 00:26:15.270
That's when the first announcement is about Abu Ghraib.
622
00:26:15.270 --> 00:26:17.753
So every single day on the front page of the New York Times
623
00:26:17.753 --> 00:26:20.200
and the front page of the LA Times and the Washington Post
624
00:26:20.200 --> 00:26:22.340
you had a new amicus brief for us on,
625
00:26:22.340 --> 00:26:23.173
you know, oh this is why
626
00:26:23.173 --> 00:26:24.550
you don't have a prison beyond the law.
627
00:26:24.550 --> 00:26:26.520
Oh look, they're stacking them up like cords of wood,
628
00:26:26.520 --> 00:26:28.989
oh naked, with dog chains.
629
00:26:28.989 --> 00:26:31.146
Did you get--
Can we break
630
00:26:31.146 --> 00:26:32.437
for just a sec?
Sure.
631
00:26:32.437 --> 00:26:36.787
Did you or any of the other lawyers get to speak to Rasul
632
00:26:36.787 --> 00:26:37.930
when he was released,
633
00:26:37.930 --> 00:26:40.680
since he's released before the decision?
634
00:26:40.680 --> 00:26:42.280
And did that, did he tell you
635
00:26:42.280 --> 00:26:44.720
of what was going on Guantanamo?
636
00:26:44.720 --> 00:26:47.290
Right, he was released I think in, it's interesting.
637
00:26:47.290 --> 00:26:48.530
He was released,
638
00:26:48.530 --> 00:26:50.910
that's another sort of the odd thing about the case,
639
00:26:50.910 --> 00:26:53.480
he was released, I wanna say in March.
640
00:26:53.480 --> 00:26:56.050
So we filed, I think the reply brief,
641
00:26:56.050 --> 00:26:57.060
and he was already gone.
642
00:26:57.060 --> 00:26:58.020
So it's a case,
643
00:26:58.020 --> 00:27:01.370
a famous case named after a guy about his detention,
644
00:27:01.370 --> 00:27:02.480
and he's no longer in detention
645
00:27:02.480 --> 00:27:03.810
at the time the case comes down.
646
00:27:03.810 --> 00:27:05.760
It doesn't even figure in the decision.
647
00:27:08.010 --> 00:27:09.400
I didn't speak with Rasul.
648
00:27:09.400 --> 00:27:11.773
I know Michael and Steven Watt did.
649
00:27:13.740 --> 00:27:17.300
And they started to, his lawyer there
650
00:27:17.300 --> 00:27:20.040
started to debrief him about the conditions,
651
00:27:20.040 --> 00:27:22.840
but we, you know, the argument was already over.
652
00:27:22.840 --> 00:27:25.630
We didn't have much, we couldn't make that part of the case.
653
00:27:25.630 --> 00:27:27.060
The record's already sealed in that,
654
00:27:27.060 --> 00:27:28.080
the record's already complete.
655
00:27:28.080 --> 00:27:30.370
I remember very, very soon after
656
00:27:31.330 --> 00:27:33.550
you may have heard about this,
657
00:27:33.550 --> 00:27:35.630
the decision comes down end of June.
658
00:27:35.630 --> 00:27:38.710
In July there was a meeting at Columbia
659
00:27:41.737 --> 00:27:44.087
where we brought in a bunch of the new lawyers.
660
00:27:45.000 --> 00:27:47.797
So a lot of those sort of the first wave
661
00:27:47.797 --> 00:27:51.922
or the second wave of habeas lawyers started then.
662
00:27:51.922 --> 00:27:54.840
So there's, you know, a lotta the guys who have been,
663
00:27:54.840 --> 00:27:58.101
now been around a long time started then
664
00:27:58.101 --> 00:27:58.934
and was at that meeting.
665
00:27:58.934 --> 00:28:01.640
And at that meeting was Gareth Peirce,
666
00:28:01.640 --> 00:28:03.820
who was Rasul's lawyer.
667
00:28:03.820 --> 00:28:06.740
And she told us that she was in the business
668
00:28:06.740 --> 00:28:11.740
or she was busy trying to debrief Rasul and Iqbal
669
00:28:11.760 --> 00:28:14.770
about their conditions, in a very systematic way,
670
00:28:14.770 --> 00:28:18.110
which became this sort of report on their conditions.
671
00:28:18.110 --> 00:28:20.990
And we had an early draft, I wanna say,
672
00:28:20.990 --> 00:28:22.400
which we couldn't cite yet,
673
00:28:22.400 --> 00:28:25.083
'cause it hadn't been, you know, it wasn't done.
674
00:28:26.780 --> 00:28:29.283
So we were just learning about it then.
675
00:28:30.560 --> 00:28:32.950
So as soon as the decision was released
676
00:28:32.950 --> 00:28:35.670
did you make plans to go into Guantanamo yourself?
677
00:28:35.670 --> 00:28:37.100
Did you think you--
678
00:28:37.100 --> 00:28:38.544
Right.
679
00:28:38.544 --> 00:28:41.840
That's you know, I remember we had a,
680
00:28:41.840 --> 00:28:43.850
we had a hearing
681
00:28:43.850 --> 00:28:46.780
in front of I wanna say Judge Kollar-Kotelly
682
00:28:46.780 --> 00:28:47.983
who had the case,
683
00:28:49.870 --> 00:28:50.870
immediately after the decision
684
00:28:50.870 --> 00:28:51.880
saying well what does it mean?
685
00:28:51.880 --> 00:28:54.090
I know the solicitor general was on the line
686
00:28:54.090 --> 00:28:56.423
or the acting SG, I think.
687
00:28:57.980 --> 00:28:59.990
And he said, well judge, you know, the government,
688
00:28:59.990 --> 00:29:01.350
U.S. government is still studying it
689
00:29:01.350 --> 00:29:04.010
and we don't really know and blah, blah, blah.
690
00:29:04.010 --> 00:29:06.960
And I said, judge they can study it all they want,
691
00:29:06.960 --> 00:29:09.724
but these guys have been in custody for, you know
692
00:29:09.724 --> 00:29:13.893
over two years now, 2 1/2 years and whatever else it means,
693
00:29:13.893 --> 00:29:16.990
it means we have a right to prosecute this habeas action.
694
00:29:16.990 --> 00:29:19.400
And so therefore we have a right to get out our clients.
695
00:29:19.400 --> 00:29:21.130
We have a right to access.
696
00:29:21.130 --> 00:29:24.330
And I told all the lawyers that the mantra has to be,
697
00:29:24.330 --> 00:29:26.240
we have a right to access and answers.
698
00:29:26.240 --> 00:29:28.330
They gotta answer the petition
699
00:29:28.330 --> 00:29:30.890
and we gotta be able to get to our clients.
700
00:29:30.890 --> 00:29:34.863
So we were agitating to get to the base from the beginning.
701
00:29:36.230 --> 00:29:38.620
It was actually a question about what was gonna happen.
702
00:29:38.620 --> 00:29:40.330
The administration really had to think about,
703
00:29:40.330 --> 00:29:42.360
well just what does Rasul mean
704
00:29:42.360 --> 00:29:45.270
and do they really have a right to go to the base?
705
00:29:45.270 --> 00:29:46.727
Does Rasul imply that?
706
00:29:46.727 --> 00:29:49.356
And they actually thought about resisting that.
707
00:29:49.356 --> 00:29:51.530
They couldn't read the decision and say,
708
00:29:51.530 --> 00:29:52.410
well we can't fight that.
709
00:29:52.410 --> 00:29:53.723
They eventually did come to that.
710
00:29:53.723 --> 00:29:54.890
What they first said was,
711
00:29:54.890 --> 00:29:57.530
well for these lawyers only,
712
00:29:57.530 --> 00:29:59.798
for the lawyers who were involved in Rasul,
713
00:29:59.798 --> 00:30:01.820
we don't know about any other lawyers,
714
00:30:01.820 --> 00:30:05.210
we're as a matter of grace, letting them go to the base.
715
00:30:05.210 --> 00:30:07.610
And that quickly broke down and everybody was allowed to go.
716
00:30:07.610 --> 00:30:09.960
But they said, you gotta get a security clearance first.
717
00:30:09.960 --> 00:30:11.617
And the security clearance process,
718
00:30:11.617 --> 00:30:13.560
even though we had started the security clearance,
719
00:30:13.560 --> 00:30:17.139
I had submitted my security application years earlier.
720
00:30:17.139 --> 00:30:19.280
They hadn't acted on it.
721
00:30:19.280 --> 00:30:22.490
In fact, they lost it, so I had to redo it.
722
00:30:22.490 --> 00:30:23.323
Why?
723
00:30:23.323 --> 00:30:25.400
Because we knew that in order to get there,
724
00:30:25.400 --> 00:30:28.030
we wanted to be able to say, I have a security clearance.
725
00:30:28.030 --> 00:30:30.040
You have no reason not to let me go to the base.
726
00:30:30.040 --> 00:30:31.710
Let me go talk to my client.
727
00:30:31.710 --> 00:30:33.440
You gotta remember, while this case is going on,
728
00:30:33.440 --> 00:30:34.840
the guys don't even know it, right?
729
00:30:34.840 --> 00:30:36.560
I mean, we could file whatever we want.
730
00:30:36.560 --> 00:30:37.610
We could send them copies.
731
00:30:37.610 --> 00:30:38.940
We could mail, they'll just throw it away.
732
00:30:38.940 --> 00:30:40.252
I mean, they're not gonna get it,
733
00:30:40.252 --> 00:30:43.600
they're not gonna get it delivered to our clients, so.
734
00:30:43.600 --> 00:30:47.197
When I, the first time I went to the base was November.
735
00:30:47.197 --> 00:30:48.990
I tried to go in August,
736
00:30:48.990 --> 00:30:50.140
you probably have heard this story.
737
00:30:50.140 --> 00:30:51.290
I don't know who all you've spoken with,
738
00:30:51.290 --> 00:30:52.910
but the first lawyer to go,
739
00:30:52.910 --> 00:30:55.480
first habeas lawyer to go was Gita Gutierrez.
740
00:30:55.480 --> 00:30:56.740
How did that happen?
741
00:30:56.740 --> 00:30:57.900
So it was August,
742
00:30:57.900 --> 00:30:59.734
we all finally had our security clearance
743
00:30:59.734 --> 00:31:03.280
and we were, (laughs) Gita would probably know the,
744
00:31:03.280 --> 00:31:04.460
be able to reconstruct it better.
745
00:31:04.460 --> 00:31:06.390
And the three people who were gonna go first,
746
00:31:06.390 --> 00:31:09.264
where me, Gita, and Brent Mickum.
747
00:31:09.264 --> 00:31:14.264
And at the last minute, they came up with this new rule.
748
00:31:15.540 --> 00:31:18.220
They said, you know, if you don't get authority
749
00:31:18.220 --> 00:31:19.920
to represent your guy,
750
00:31:19.920 --> 00:31:22.042
to transform your litigation from
751
00:31:22.042 --> 00:31:25.521
on behalf of a next friend, mother, sister, father,
752
00:31:25.521 --> 00:31:27.910
to direct representation,
753
00:31:27.910 --> 00:31:29.540
that is your guy authorizes you to go forward,
754
00:31:29.540 --> 00:31:31.280
we're not letting you back.
755
00:31:31.280 --> 00:31:32.710
And we said, well we have no idea
756
00:31:32.710 --> 00:31:33.900
what sorta condition he's in.
757
00:31:33.900 --> 00:31:34.733
We never talked to him,
758
00:31:34.733 --> 00:31:36.160
I mean, you know, we don't know how long
759
00:31:36.160 --> 00:31:37.390
it's gonna take to establish a relate.
760
00:31:37.390 --> 00:31:38.830
They said, ah.
761
00:31:38.830 --> 00:31:43.829
So I had a concern that Habib who I was gonna go see,
762
00:31:43.829 --> 00:31:46.470
you know, doesn't know me from a sack of oats.
763
00:31:46.470 --> 00:31:49.120
You know this Jewish lawyer who comes in here,
764
00:31:49.120 --> 00:31:51.086
says, hi I'm your lawyer
765
00:31:51.086 --> 00:31:52.460
and gives him a piece of paper to sign
766
00:31:52.460 --> 00:31:54.810
and says here let me do for you.
767
00:31:54.810 --> 00:31:55.947
And he says thanks very much,
768
00:31:55.947 --> 00:31:57.945
but you guys have done enough for me.
769
00:31:57.945 --> 00:31:59.160
So I had no idea.
770
00:31:59.160 --> 00:32:01.880
So we made a decision at the last minute,
771
00:32:01.880 --> 00:32:06.310
a very painful decision that we
772
00:32:08.410 --> 00:32:09.910
we're gonna wait.
773
00:32:09.910 --> 00:32:14.610
And it was then that we brought Maha Habib,
774
00:32:14.610 --> 00:32:18.930
Mamdouh's wife, as well as their lawyer in Sydney
775
00:32:18.930 --> 00:32:23.860
to the United States to try to learn more about Mamdouh,
776
00:32:23.860 --> 00:32:25.830
so that if we only had one visit,
777
00:32:25.830 --> 00:32:27.280
we could make the most of it.
778
00:32:28.340 --> 00:32:30.570
And so, and then I had, that was in July.
779
00:32:30.570 --> 00:32:33.950
We brought them over in August, I think, or maybe late July.
780
00:32:33.950 --> 00:32:36.310
And then unfortunately I had a trial in another case,
781
00:32:36.310 --> 00:32:38.180
I had a trial on a murder case
782
00:32:38.180 --> 00:32:40.740
from earlier in my life
783
00:32:40.740 --> 00:32:43.610
that took place in late September, October.
784
00:32:43.610 --> 00:32:46.060
So as it turns out, I couldn't go until November.
785
00:32:47.224 --> 00:32:48.810
Gita didn't have that same worry.
786
00:32:48.810 --> 00:32:51.008
Gita was going to see Moazzam Begg.
787
00:32:51.008 --> 00:32:54.113
Moazzam, very Westernized, had lived in London.
788
00:32:55.320 --> 00:32:57.378
Spoke English perfectly.
789
00:32:57.378 --> 00:32:59.390
Lawyer.
A lawyer
790
00:32:59.390 --> 00:33:01.199
and didn't have that same concern.
791
00:33:01.199 --> 00:33:02.747
And she was right.
792
00:33:02.747 --> 00:33:04.389
And in fact it turns out,
793
00:33:04.389 --> 00:33:05.920
I didn't have that problem.
794
00:33:05.920 --> 00:33:06.810
I could have gone in July.
795
00:33:06.810 --> 00:33:07.950
It would have been fine.
796
00:33:07.950 --> 00:33:09.350
Whatever I was,
797
00:33:09.350 --> 00:33:12.210
what happening with Mamdouh was gonna happen then or,
798
00:33:12.210 --> 00:33:13.780
but it would have been fine.
799
00:33:13.780 --> 00:33:15.310
But you couldn't predict that.
800
00:33:15.310 --> 00:33:18.330
So Brent and I both put ours off.
801
00:33:18.330 --> 00:33:21.160
I can't remember who he was gonna go see,
802
00:33:21.160 --> 00:33:23.263
Jamil El Banna as I recall.
803
00:33:24.826 --> 00:33:29.826
And so Gita went first and then in between Gita and me
804
00:33:31.090 --> 00:33:33.530
I think Baher Azmy might've gone down.
805
00:33:33.530 --> 00:33:35.440
There might a been a couple others.
806
00:33:35.440 --> 00:33:36.710
So what was your impressions?
807
00:33:36.710 --> 00:33:38.380
What are you expecting you went down there?
808
00:33:38.380 --> 00:33:41.117
What were your impressions the first time?
809
00:33:41.117 --> 00:33:43.077
You know, I've been to a lot of prisons,
810
00:33:43.077 --> 00:33:44.922
I mean, as a death penalty lawyer
811
00:33:44.922 --> 00:33:48.570
and as a criminal defense lawyer.
812
00:33:48.570 --> 00:33:51.010
I've been to a lotta jails and a lotta prisons.
813
00:33:51.010 --> 00:33:54.600
I've been to death row in half a dozen states.
814
00:33:54.600 --> 00:33:56.350
I've been to the federal death row.
815
00:33:57.760 --> 00:34:00.743
I've been at very, very high security settings.
816
00:34:03.790 --> 00:34:07.230
And I have described this before,
817
00:34:07.230 --> 00:34:09.330
and I have to say Guantanamo is now very different
818
00:34:09.330 --> 00:34:10.550
than it was then.
819
00:34:10.550 --> 00:34:13.500
This was late 2004.
820
00:34:13.500 --> 00:34:16.039
It was just coming off the worst period at Guantanamo.
821
00:34:16.039 --> 00:34:20.340
The worst period at Guantanamo was from around
822
00:34:20.340 --> 00:34:24.680
late 2002 to you know mid-2004.
823
00:34:24.680 --> 00:34:26.670
That's when it was really, really the worst,
824
00:34:26.670 --> 00:34:29.655
the worst interrogations, the worst conditions,
825
00:34:29.655 --> 00:34:32.333
the worst conditions of confinement, treatment.
826
00:34:34.640 --> 00:34:35.932
And it was different,
827
00:34:35.932 --> 00:34:36.765
you know, some people had it worse
828
00:34:36.765 --> 00:34:37.940
for longer periods and so on.
829
00:34:41.930 --> 00:34:43.520
And I have described it
830
00:34:43.520 --> 00:34:47.183
as the most disturbing place I've ever been to.
831
00:34:48.020 --> 00:34:50.210
And the only, now you weren't allowed to see much,
832
00:34:50.210 --> 00:34:51.760
and the only client I saw
833
00:34:51.760 --> 00:34:54.940
and part of what made it so odd is the way they
834
00:34:56.290 --> 00:34:58.257
sheltered you from everyone else.
835
00:34:58.257 --> 00:35:00.750
You know, there's no sense that this is a place
836
00:35:00.750 --> 00:35:03.120
where anyone else's held.
837
00:35:03.120 --> 00:35:08.120
As far as I could tell, it's this massive structure,
838
00:35:09.520 --> 00:35:13.350
multiple structures that holds one guy, which is my client.
839
00:35:13.350 --> 00:35:17.027
'Cause they bring them into this special room,
840
00:35:17.027 --> 00:35:22.027
concrete and plywood and air conditioning running loud,
841
00:35:23.440 --> 00:35:27.987
and a bunk and a narrow steel cage
842
00:35:28.997 --> 00:35:31.710
where he sleeps while you're,
843
00:35:31.710 --> 00:35:33.140
while the length of this visit goes on.
844
00:35:33.140 --> 00:35:36.260
And when you leave, he's unshackled from the floor
845
00:35:36.260 --> 00:35:37.340
in the middle of the room
846
00:35:37.340 --> 00:35:39.230
and put into that room.
847
00:35:39.230 --> 00:35:40.780
And they were still so freaked out
848
00:35:40.780 --> 00:35:42.299
about who these guys were.
849
00:35:42.299 --> 00:35:47.299
And it was then that I really understood why
850
00:35:48.890 --> 00:35:52.763
the most precious commodity in any prison is hope.
851
00:35:53.680 --> 00:35:56.650
It's not, you know, it's not an extra half hour of sunlight.
852
00:35:56.650 --> 00:35:58.310
It's not an extra half hour of exercise.
853
00:35:58.310 --> 00:36:00.551
It's not communal living spaces.
854
00:36:00.551 --> 00:36:01.970
It's hope.
855
00:36:01.970 --> 00:36:06.520
If these guys, if you extinguish a prisoner's hope,
856
00:36:06.520 --> 00:36:07.730
hope for a better future,
857
00:36:07.730 --> 00:36:09.750
hope that this fate will end,
858
00:36:09.750 --> 00:36:11.800
hope that he'll be reunited with his family,
859
00:36:11.800 --> 00:36:14.400
hope that he will see his children again,
860
00:36:14.400 --> 00:36:17.713
that maybe he'll even get a chance to hug his little girl,
861
00:36:19.362 --> 00:36:20.790
if you extinguish that,
862
00:36:20.790 --> 00:36:23.720
the little flame behind his eyes goes out
863
00:36:23.720 --> 00:36:27.850
and they have this blank, dead, deadened
864
00:36:31.840 --> 00:36:34.000
not just a blank affect,
865
00:36:34.000 --> 00:36:39.000
but just this completely empty shell of a person,
866
00:36:40.160 --> 00:36:43.033
which we created, right?
867
00:36:43.033 --> 00:36:45.120
I mean, you go from a person who isn't that way
868
00:36:45.120 --> 00:36:49.940
to the person who is, by virtue of how he is treated here.
869
00:36:49.940 --> 00:36:52.150
And that's what had happened to Mamdouh.
870
00:36:54.060 --> 00:36:55.400
You didn't expect that?
871
00:36:55.400 --> 00:36:57.291
No, no.
What did you--
872
00:36:57.291 --> 00:37:00.192
I didn't know what to expect.
873
00:37:00.192 --> 00:37:02.300
I mean I hadn't, what I was expecting more,
874
00:37:02.300 --> 00:37:07.170
I had no concept for, I wasn't focused on...
875
00:37:10.800 --> 00:37:12.610
I was focused on things like,
876
00:37:12.610 --> 00:37:15.410
you know, his physical health, how will he be?
877
00:37:15.410 --> 00:37:16.785
You know, will he have lost weight?
878
00:37:16.785 --> 00:37:19.340
Will he walk with a limp?
879
00:37:19.340 --> 00:37:20.683
Will he have scars?
880
00:37:23.680 --> 00:37:26.830
I really what I should've been,
881
00:37:26.830 --> 00:37:30.420
I should've been more focused in on his emotional health.
882
00:37:30.420 --> 00:37:33.310
I was focused on things like, well will he accept me?
883
00:37:33.310 --> 00:37:35.377
I had this elaborate plan to try to,
884
00:37:35.377 --> 00:37:37.840
you know gradually tell him more and more things
885
00:37:37.840 --> 00:37:39.120
so that he would come to trust me.
886
00:37:39.120 --> 00:37:41.465
I don't know if read out my descriptions about that.
887
00:37:41.465 --> 00:37:45.310
The things that Maha had told me to get,
888
00:37:45.310 --> 00:37:47.250
'cause I figured he'd think I was just
889
00:37:47.250 --> 00:37:48.890
another interrogator who was playing games.
890
00:37:48.890 --> 00:37:50.270
We knew that interrogators were doing that.
891
00:37:50.270 --> 00:37:52.240
There were interrogators who were
892
00:37:52.240 --> 00:37:55.073
pretending to be the guys' lawyers.
893
00:37:56.340 --> 00:37:58.640
Hi, I'm you lawyer, not tell me what you really did.
894
00:37:58.640 --> 00:38:00.370
Oh good, I'm so glad there's a lawyer here,
895
00:38:00.370 --> 00:38:03.260
let me tell you about how I bombed these places.
896
00:38:03.260 --> 00:38:04.340
Of course it was silly.
897
00:38:04.340 --> 00:38:06.880
None of that, there was...
898
00:38:06.880 --> 00:38:08.200
They didn't tell us any more than,
899
00:38:08.200 --> 00:38:10.243
there was no, there, there.
900
00:38:13.470 --> 00:38:15.800
I wasn't prepared for how
901
00:38:19.010 --> 00:38:20.823
deadened he would be.
902
00:38:21.882 --> 00:38:26.585
And it was very, like I said, I've been in a lot of prisons
903
00:38:26.585 --> 00:38:30.920
and lotta guys who've spent a lot of time talking,
904
00:38:30.920 --> 00:38:32.160
men and women,
905
00:38:32.160 --> 00:38:36.113
and I've never seen this kind of just deadness.
906
00:38:38.300 --> 00:38:41.156
Did you feel that at that time
907
00:38:41.156 --> 00:38:45.450
that therefore Guantanamo was a unique institution
908
00:38:45.450 --> 00:38:47.230
that created that deadness?
909
00:38:47.230 --> 00:38:48.960
Oh yeah, not just Guantanamo.
910
00:38:48.960 --> 00:38:49.793
I mean,
911
00:38:52.960 --> 00:38:55.494
you can create Guantanamo anywhere, right?
912
00:38:55.494 --> 00:38:57.970
That's why I'm not as hung up as other people are
913
00:38:57.970 --> 00:38:59.240
about closing it, right?
914
00:38:59.240 --> 00:39:01.687
What matters is not where you hold them, it's how you hold.
915
00:39:01.687 --> 00:39:03.820
And if you create the right conditions,
916
00:39:03.820 --> 00:39:07.053
you can make anything into a horror chamber.
917
00:39:08.200 --> 00:39:12.280
And I had no doubt, no doubt
918
00:39:12.280 --> 00:39:14.710
that other places were vastly worse than Guantanamo.
919
00:39:14.710 --> 00:39:16.420
I know that to be true.
920
00:39:16.420 --> 00:39:18.660
We know what happened at the black sites.
921
00:39:18.660 --> 00:39:22.810
So, you can create places that will do real,
922
00:39:22.810 --> 00:39:24.210
that will really scar folks.
923
00:39:25.260 --> 00:39:27.410
Did that change the way you
924
00:39:28.390 --> 00:39:31.480
interfaced with Mamdouh when you saw
925
00:39:31.480 --> 00:39:33.830
that you looking at a person who was deadened?
926
00:39:33.830 --> 00:39:36.630
Did that change everything that you had thought about
927
00:39:36.630 --> 00:39:38.180
when you first went down there?
928
00:39:43.020 --> 00:39:48.020
Well, you know, I was very fortunate
929
00:39:50.760 --> 00:39:53.273
because by virtue of what happened,
930
00:39:54.360 --> 00:39:56.090
I don't know whether you want me to get into the whole story
931
00:39:56.090 --> 00:39:57.590
of how Mamdouh got out,
932
00:39:57.590 --> 00:39:59.853
how we eventually got Mamdouh released.
933
00:39:59.853 --> 00:40:00.686
I do at some point.
934
00:40:00.686 --> 00:40:02.150
If you wanna say it now, that'd be fine.
935
00:40:02.150 --> 00:40:03.850
But I'd like to, I do wanna--
936
00:40:03.850 --> 00:40:05.450
Yeah.
Hear that story, yes.
937
00:40:06.900 --> 00:40:11.750
Well, in answer to your immediate question, it did...
938
00:40:20.390 --> 00:40:22.210
What I discovered that trip
939
00:40:25.497 --> 00:40:30.367
and I... (sighs)
940
00:40:30.367 --> 00:40:33.017
And I used to, I remember I used to tell the lawyers this,
941
00:40:33.017 --> 00:40:33.850
you know, the other lawyers
942
00:40:33.850 --> 00:40:35.260
who were just starting to go down
943
00:40:35.260 --> 00:40:38.500
is, you know, here we are in law school
944
00:40:38.500 --> 00:40:41.670
and so it's fitting that I use this expression,
945
00:40:41.670 --> 00:40:44.360
here is a place where you learn to think like a lawyer.
946
00:40:44.360 --> 00:40:46.580
I would say to them, don't think like a lawyer,
947
00:40:46.580 --> 00:40:48.620
just think like a human being.
948
00:40:48.620 --> 00:40:51.160
Pretend that once again you are a human being
949
00:40:51.160 --> 00:40:52.023
and not a lawyer.
950
00:40:54.780 --> 00:40:59.700
And you're talking to a guy who
951
00:40:59.700 --> 00:41:01.823
has gone through a great deal.
952
00:41:03.350 --> 00:41:08.350
The whole purpose of the administration's detention program
953
00:41:09.800 --> 00:41:11.480
was to disorient them so
954
00:41:11.480 --> 00:41:13.710
and to create such a sense of despair
955
00:41:13.710 --> 00:41:17.420
and desperation that they would give up
956
00:41:17.420 --> 00:41:18.700
any capacity to resist.
957
00:41:18.700 --> 00:41:19.950
That's the whole logic of it.
958
00:41:19.950 --> 00:41:22.740
And you know, it's not important anymore to get involved
959
00:41:22.740 --> 00:41:24.310
about whether that's a good idea or a bad idea.
960
00:41:24.310 --> 00:41:27.150
It's been critiqued, it's clearly a mistake.
961
00:41:27.150 --> 00:41:28.795
Whether it gets good information or not,
962
00:41:28.795 --> 00:41:31.133
it's certainly morally bankrupt.
963
00:41:33.370 --> 00:41:37.180
But these are guys who having been wrung dry,
964
00:41:37.180 --> 00:41:39.040
they don't do anything to sort of restore them
965
00:41:39.040 --> 00:41:40.650
from that condition they created,
966
00:41:40.650 --> 00:41:42.400
so they're still in that condition.
967
00:41:44.440 --> 00:41:46.670
Well, how do you deal with a person like that?
968
00:41:46.670 --> 00:41:48.880
Well, the answer you don't deal with them.
969
00:41:48.880 --> 00:41:50.590
You don't treat them like a client.
970
00:41:50.590 --> 00:41:52.140
You know, you don't come down with your notebook
971
00:41:52.140 --> 00:41:55.600
and say, okay, you know, Mr.Binatosh, I'm gonna,
972
00:41:55.600 --> 00:41:57.760
here's what I'm going to represent you in.
973
00:41:57.760 --> 00:42:01.720
And this is how, this is what the law is.
974
00:42:01.720 --> 00:42:03.880
Stop it, just stop it, you know.
975
00:42:03.880 --> 00:42:06.410
So I would tell guys, just don't take out your notebook,
976
00:42:06.410 --> 00:42:08.622
don't talk to him about the case, don't you know,
977
00:42:08.622 --> 00:42:10.310
follow their lead.
978
00:42:10.310 --> 00:42:11.700
If they wanna know what you're gonna do,
979
00:42:11.700 --> 00:42:12.910
tell them what you're gonna do.
980
00:42:12.910 --> 00:42:14.810
If they wanna talk to you about the food,
981
00:42:14.810 --> 00:42:15.870
talk to 'em about the food.
982
00:42:15.870 --> 00:42:19.000
Just be a sounding board,
983
00:42:19.000 --> 00:42:24.000
be an empathic or empathetic listener.
984
00:42:27.192 --> 00:42:31.160
Engage them with what they are prepared to engage you with.
985
00:42:31.160 --> 00:42:34.050
And gradually that may change
986
00:42:34.050 --> 00:42:35.705
and you don't know how long it's gonna take.
987
00:42:35.705 --> 00:42:40.705
So with Mamdouh, you know I went down there.
988
00:42:43.530 --> 00:42:44.363
I'm Joe Margulies.
989
00:42:44.363 --> 00:42:46.250
I'm a lawyer and here's the U.S. Supreme Court
990
00:42:46.250 --> 00:42:47.450
and here's the Supreme Court decision.
991
00:42:47.450 --> 00:42:48.283
Hi, Mr. Habib, I'm....
992
00:42:48.283 --> 00:42:50.387
Well that was stupid.
993
00:42:50.387 --> 00:42:54.000
And he just looked at me with this blank, dead stare.
994
00:42:54.000 --> 00:42:55.287
Yes, thank you very much, yes.
995
00:42:55.287 --> 00:42:57.310
And I went through this whole spiel about, you know,
996
00:42:57.310 --> 00:42:59.950
Mamdouh, I've represented you for years.
997
00:42:59.950 --> 00:43:02.025
You don't know, but the little did you know,
998
00:43:02.025 --> 00:43:03.370
you just won a case
999
00:43:03.370 --> 00:43:05.950
in the United States Supreme Court, congratulations.
1000
00:43:05.950 --> 00:43:10.943
And he, nothing, nothing at all.
1001
00:43:13.160 --> 00:43:14.640
I had my business card.
1002
00:43:14.640 --> 00:43:16.970
I had the Supreme Court decision that had his name on it.
1003
00:43:16.970 --> 00:43:17.803
I showed him on the plea,
1004
00:43:17.803 --> 00:43:19.290
I brought a set up all the pleadings.
1005
00:43:19.290 --> 00:43:20.560
Here's all the pleadings we filed on your behalf.
1006
00:43:20.560 --> 00:43:21.393
Look at all the things we said.
1007
00:43:21.393 --> 00:43:22.640
Look all this great stuff we've done,
1008
00:43:22.640 --> 00:43:23.646
blah, blah, blah.
1009
00:43:23.646 --> 00:43:24.990
Okay, great.
1010
00:43:24.990 --> 00:43:26.210
Absolutely no effect.
1011
00:43:26.210 --> 00:43:27.650
No even I could have just sort of said,
1012
00:43:27.650 --> 00:43:29.360
oh, you know what here's a copy of the Magna Carta
1013
00:43:29.360 --> 00:43:30.680
and here's the original King James Bible
1014
00:43:30.680 --> 00:43:32.980
and you know, nothing, it did nothing for him.
1015
00:43:37.340 --> 00:43:41.317
And so I realized, okay well this is not,
1016
00:43:41.317 --> 00:43:43.960
you know I probably could have stuck a piece of paper
1017
00:43:43.960 --> 00:43:46.144
under his nose and said, if you'll just sign right here
1018
00:43:46.144 --> 00:43:47.840
it'll allow me to continue to represent you
1019
00:43:47.840 --> 00:43:49.830
and I'll be on my way and that (claps hands)
1020
00:43:49.830 --> 00:43:52.463
Yeah and he just signed anything, you know.
1021
00:43:53.630 --> 00:43:55.430
But that's not what you want, right?
1022
00:43:55.430 --> 00:43:56.530
Then you not really have a client,
1023
00:43:56.530 --> 00:43:58.580
you just, you just have a piece of paper.
1024
00:43:59.490 --> 00:44:03.480
So I put all this stuff away and I put it back in my bag.
1025
00:44:03.480 --> 00:44:04.600
And I...
1026
00:44:07.430 --> 00:44:12.380
I said to him, let me start over again.
1027
00:44:12.380 --> 00:44:14.860
Mamdouh this isn't what we wanna have happen here.
1028
00:44:14.860 --> 00:44:16.070
And then I told him,
1029
00:44:16.070 --> 00:44:17.820
said look, I know you don't know me
1030
00:44:19.400 --> 00:44:21.420
and I anticipated that you wouldn't know me.
1031
00:44:21.420 --> 00:44:22.840
And you don't have any reason to trust me
1032
00:44:22.840 --> 00:44:24.040
and I'm not asking you to trust me,
1033
00:44:24.040 --> 00:44:26.303
I got to earn your, I got to win.
1034
00:44:28.530 --> 00:44:30.610
But I do want you to know
1035
00:44:30.610 --> 00:44:32.290
that I'm legit.
1036
00:44:32.290 --> 00:44:34.190
I'm not making this up, this is not...
1037
00:44:35.090 --> 00:44:37.620
And there's only one way I could think of
1038
00:44:37.620 --> 00:44:42.620
to try to get past this point in the conversation,
1039
00:44:43.670 --> 00:44:45.370
because I thought it might happen.
1040
00:44:46.280 --> 00:44:51.050
And I wanna share with you some things to
1041
00:44:55.510 --> 00:44:57.483
demonstrate to you what we have done.
1042
00:44:58.890 --> 00:45:01.800
Last month or July, I can't remember,
1043
00:45:01.800 --> 00:45:03.220
this was November, so I might've said, you know,
1044
00:45:03.220 --> 00:45:04.053
a few months ago
1045
00:45:06.100 --> 00:45:09.600
your wife and her lawyer
1046
00:45:11.700 --> 00:45:13.090
flew from Sydney.
1047
00:45:13.090 --> 00:45:16.563
We flew them to Chicago and put them up in a hotel.
1048
00:45:17.809 --> 00:45:22.579
And we met with Maha to talk about you
1049
00:45:22.579 --> 00:45:23.950
and talk about your life
1050
00:45:24.850 --> 00:45:28.900
and to help us understand who you are
1051
00:45:28.900 --> 00:45:31.390
and how to approach this meeting.
1052
00:45:31.390 --> 00:45:33.044
In fact, I coulda come down here earlier,
1053
00:45:33.044 --> 00:45:35.490
but I was so worried that you wouldn't,
1054
00:45:35.490 --> 00:45:37.820
that I wanted to do this first.
1055
00:45:37.820 --> 00:45:41.830
And I told Maha that he might think I'm an interrogator.
1056
00:45:41.830 --> 00:45:44.740
He might think that I'm with the U.S. government.
1057
00:45:44.740 --> 00:45:46.644
And there's no reason to think that he'll
1058
00:45:46.644 --> 00:45:47.930
you know, there's no...
1059
00:45:47.930 --> 00:45:51.050
So Maha here's what I need you to do.
1060
00:45:51.050 --> 00:45:52.370
When you go back to your hotel room tonight
1061
00:45:52.370 --> 00:45:54.670
before we meet again tomorrow morning,
1062
00:45:54.670 --> 00:45:56.550
I want you to think of three things
1063
00:45:57.490 --> 00:46:02.490
that Mamdouh knows that you know,
1064
00:46:04.440 --> 00:46:05.840
but no one else knows.
1065
00:46:05.840 --> 00:46:07.583
Things that are so obscure,
1066
00:46:07.583 --> 00:46:12.583
so personal to you, trivial, insignificant to everybody else
1067
00:46:14.210 --> 00:46:17.530
that no interrogator would know them
1068
00:46:17.530 --> 00:46:18.710
unless they got them,
1069
00:46:18.710 --> 00:46:20.780
because no interrogator would get them
1070
00:46:20.780 --> 00:46:22.180
by extracting them from you,
1071
00:46:22.180 --> 00:46:23.880
because they have no intelligence value.
1072
00:46:23.880 --> 00:46:26.750
They're just personal things that he would know
1073
00:46:26.750 --> 00:46:29.913
that you talked to me freely about these personal things.
1074
00:46:30.830 --> 00:46:31.770
And she said, okay, let me,
1075
00:46:31.770 --> 00:46:33.891
you know Maha's a savvy smart woman.
1076
00:46:33.891 --> 00:46:35.340
She came back the next day.
1077
00:46:35.340 --> 00:46:37.460
and she said, okay Joe, I've thought of these three things.
1078
00:46:37.460 --> 00:46:38.950
And the meetings with her were very, you know
1079
00:46:38.950 --> 00:46:40.870
'cause here it is, she doesn't know me,
1080
00:46:40.870 --> 00:46:42.798
and we're flying her from Sydney, Australia
1081
00:46:42.798 --> 00:46:46.443
and she gradually opened up to us as well, warmed up to us.
1082
00:46:47.842 --> 00:46:49.360
Had to leave her children behind, so.
1083
00:46:49.360 --> 00:46:50.823
Okay, the three things were,
1084
00:46:53.208 --> 00:46:54.703
let me see if I can remember them all now.
1085
00:46:56.820 --> 00:46:59.403
Here's where Mamdouh and I went on our first date,
1086
00:47:01.140 --> 00:47:01.983
years ago.
1087
00:47:04.680 --> 00:47:08.240
Here's the first gift he ever gave to me
1088
00:47:08.240 --> 00:47:09.990
when we were dating.
1089
00:47:09.990 --> 00:47:14.990
And when our oldest son was sick and he was in the hospital
1090
00:47:18.770 --> 00:47:22.120
and we spent all night in the hospital at his bedside
1091
00:47:22.120 --> 00:47:25.410
where were our other kids?
1092
00:47:25.410 --> 00:47:26.790
Where did they stay?
1093
00:47:26.790 --> 00:47:28.560
Well I thought those were great examples.
1094
00:47:28.560 --> 00:47:30.030
And I know answers to those questions.
1095
00:47:30.030 --> 00:47:33.420
I've never repeated them out loud except to Mamdouh.
1096
00:47:33.420 --> 00:47:35.030
I've never, 'cause it's,
1097
00:47:35.030 --> 00:47:37.280
well for the reasons that I described, right?
1098
00:47:38.350 --> 00:47:40.120
It's nobody's business.
1099
00:47:40.120 --> 00:47:42.720
But I told him those three things.
1100
00:47:42.720 --> 00:47:45.430
I said, I want to tell you, Maha told us these things.
1101
00:47:45.430 --> 00:47:48.210
And I told him the answers to those three questions,
1102
00:47:48.210 --> 00:47:50.480
those questions and those answers.
1103
00:47:50.480 --> 00:47:51.810
And up until that time,
1104
00:47:51.810 --> 00:47:56.810
he had this completely dead, indifferent, detached presence.
1105
00:48:00.910 --> 00:48:01.780
Not even an affect,
1106
00:48:01.780 --> 00:48:03.750
'cause affect suggests that there's,
1107
00:48:03.750 --> 00:48:05.030
you know what you're describing is a,
1108
00:48:05.030 --> 00:48:06.203
and it wasn't even there.
1109
00:48:06.203 --> 00:48:08.950
It's like you're talking to a cat, right,
1110
00:48:08.950 --> 00:48:11.219
who's just looking at you occasionally blinking.
1111
00:48:11.219 --> 00:48:12.703
It's not a, okay.
1112
00:48:14.480 --> 00:48:16.715
And when I told them these things
1113
00:48:16.715 --> 00:48:18.560
and of course you remember he had hands,
1114
00:48:18.560 --> 00:48:19.650
his feet are shackled.
1115
00:48:19.650 --> 00:48:21.600
This is a guy who's feet are shackled,
1116
00:48:21.600 --> 00:48:23.073
he can't cross his leg like this,
1117
00:48:23.073 --> 00:48:24.650
you know 'cause his feet are shackled there.
1118
00:48:24.650 --> 00:48:26.420
He's, at my request,
1119
00:48:26.420 --> 00:48:28.430
the guards had taken the shackles off of his wrists,
1120
00:48:28.430 --> 00:48:30.062
but that's the first time
1121
00:48:30.062 --> 00:48:30.895
the shackles had been off his wrists
1122
00:48:30.895 --> 00:48:33.533
outside of the little cage that he's in, in years.
1123
00:48:35.360 --> 00:48:37.700
And he looked at me for a long time
1124
00:48:37.700 --> 00:48:40.600
and then he dropped his head and started to cry.
1125
00:48:40.600 --> 00:48:42.140
He started to sob
1126
00:48:42.140 --> 00:48:43.990
and the tears were just falling down.
1127
00:48:44.870 --> 00:48:47.800
And then he looked back up, tears in his eyes,
1128
00:48:47.800 --> 00:48:50.983
and he said to me, Joe, we have so much work to do.
1129
00:48:52.201 --> 00:48:55.000
And that's when I knew, okay, now I have a client.
1130
00:48:55.000 --> 00:48:58.078
So now you can, so at that point you can say,
1131
00:48:58.078 --> 00:49:00.230
let's get to work.
1132
00:49:00.230 --> 00:49:01.883
And you can go anywhere you want.
1133
00:49:03.640 --> 00:49:05.097
Tell me what you want to talk to me about.
1134
00:49:05.097 --> 00:49:06.477
And you can talk to you about Guantanamo.
1135
00:49:06.477 --> 00:49:08.130
You can talk to you about...
1136
00:49:08.130 --> 00:49:11.400
As it happened, I knew I had something that was important
1137
00:49:11.400 --> 00:49:12.233
for us to talk about
1138
00:49:12.233 --> 00:49:14.403
and it turns out it's how he got home.
1139
00:49:15.320 --> 00:49:16.373
We had heard,
1140
00:49:17.435 --> 00:49:19.355
while I was there,
1141
00:49:19.355 --> 00:49:21.030
and things like this used to happen,
1142
00:49:21.030 --> 00:49:22.643
they don't happen as much anymore.
1143
00:49:23.679 --> 00:49:28.530
We were allowed to check our email at a little
1144
00:49:28.530 --> 00:49:29.890
sort of base library.
1145
00:49:29.890 --> 00:49:31.410
It's a library, it's about as big as this room,
1146
00:49:31.410 --> 00:49:32.870
so not much.
1147
00:49:32.870 --> 00:49:34.920
And there were a few computer screens.
1148
00:49:34.920 --> 00:49:36.410
And so you could go there during lunch hour
1149
00:49:36.410 --> 00:49:37.460
and check your email.
1150
00:49:37.460 --> 00:49:40.000
And somebody anonymously,
1151
00:49:40.000 --> 00:49:41.600
I have no idea who, still don't,
1152
00:49:42.730 --> 00:49:45.350
had sent me an email saying that the Australia,
1153
00:49:45.350 --> 00:49:50.350
or the Egyptian government had requested the return
1154
00:49:52.070 --> 00:49:56.870
from Guantanamo of the Egyptian citizens,
1155
00:49:56.870 --> 00:49:57.990
one of whom was Habib.
1156
00:49:57.990 --> 00:50:00.170
They identified, they named them all.
1157
00:50:00.170 --> 00:50:01.870
And Habib was born in Egypt,
1158
00:50:01.870 --> 00:50:03.780
and so he still had a Egyptian citizenship,
1159
00:50:03.780 --> 00:50:06.360
but he had been in Australia forever.
1160
00:50:06.360 --> 00:50:11.360
Well, I knew that Habib had been rendered to Egypt
1161
00:50:12.320 --> 00:50:14.400
and tortured in Egypt when he was first picked up
1162
00:50:14.400 --> 00:50:15.420
in October of 2001.
1163
00:50:15.420 --> 00:50:17.730
The reason he didn't get the Guantanamo until April
1164
00:50:17.730 --> 00:50:21.030
is that unlike the other guys, he was sent to Egypt first,
1165
00:50:21.030 --> 00:50:23.160
where they tortured the bejesus out of him
1166
00:50:23.160 --> 00:50:25.407
and now Egypt was asking for him back.
1167
00:50:25.407 --> 00:50:28.880
So I spent most of the time that I was there that day,
1168
00:50:28.880 --> 00:50:31.270
that day and the next day, that whole trip,
1169
00:50:31.270 --> 00:50:33.159
getting a very detailed account
1170
00:50:33.159 --> 00:50:38.159
about his rendition from U.S. custody to Egypt
1171
00:50:38.440 --> 00:50:40.690
and what happened to him in Egyptian custody.
1172
00:50:40.690 --> 00:50:41.750
From him, you got this?
1173
00:50:41.750 --> 00:50:44.220
Right, exceedingly detailed,
1174
00:50:44.220 --> 00:50:46.150
including the evidence,
1175
00:50:46.150 --> 00:50:49.010
including the description of the U.S. contractors
1176
00:50:49.010 --> 00:50:50.820
who rendered him.
1177
00:50:50.820 --> 00:50:52.440
It was one of the most detailed accounts at the time
1178
00:50:52.440 --> 00:50:54.357
of just what the rendition was
1179
00:50:54.357 --> 00:50:56.373
and what it involved.
1180
00:50:57.510 --> 00:50:58.343
And
1181
00:51:02.115 --> 00:51:03.350
when I got back,
1182
00:51:03.350 --> 00:51:05.280
this is like Christmas or Thanksgiving Day
1183
00:51:05.280 --> 00:51:06.798
or the day before Thanksgiving,
1184
00:51:06.798 --> 00:51:08.330
I went to the secure facility
1185
00:51:08.330 --> 00:51:10.540
and I wrote it all up just from memory,
1186
00:51:10.540 --> 00:51:11.560
'cause I didn't have my notes.
1187
00:51:11.560 --> 00:51:13.460
You can take notes, but the notes can't come back with you.
1188
00:51:13.460 --> 00:51:16.000
They have to go back in a secure pouch.
1189
00:51:16.000 --> 00:51:17.530
So I just went in and I wanted to do it right away
1190
00:51:17.530 --> 00:51:21.200
and I wrote up this affidavit on saying
1191
00:51:21.200 --> 00:51:22.540
here's what I was just told
1192
00:51:22.540 --> 00:51:24.580
in great, great detail.
1193
00:51:24.580 --> 00:51:26.280
And then I filed a memorandum
1194
00:51:26.280 --> 00:51:29.177
or a motion saying to block his transfer
1195
00:51:29.177 --> 00:51:31.963
and filed that with the court,
1196
00:51:33.070 --> 00:51:34.410
saying you can't send him back,
1197
00:51:34.410 --> 00:51:37.390
he's been tortured before, they're gonna torture him again.
1198
00:51:37.390 --> 00:51:42.090
And the way it works at,
1199
00:51:42.090 --> 00:51:44.268
in the Guantanamo litigation is once you file something,
1200
00:51:44.268 --> 00:51:47.897
it remains sealed until the court security office
1201
00:51:47.897 --> 00:51:50.230
says okay you can file this publicly
1202
00:51:50.230 --> 00:51:51.140
or you can file it publicly,
1203
00:51:51.140 --> 00:51:53.063
but here this much as redacted, okay.
1204
00:51:55.810 --> 00:51:56.830
So usually that didn't,
1205
00:51:56.830 --> 00:51:57.890
at that time it didn't take long.
1206
00:51:57.890 --> 00:51:59.640
They'd usually go through these reviews pretty quickly
1207
00:51:59.640 --> 00:52:01.750
48 hours, 72 hours.
1208
00:52:01.750 --> 00:52:03.200
This one was taking weeks
1209
00:52:03.200 --> 00:52:04.577
and they weren't getting back to me
1210
00:52:04.577 --> 00:52:05.884
and weren't getting back to me
1211
00:52:05.884 --> 00:52:06.717
and that's no good,
1212
00:52:06.717 --> 00:52:09.560
'cause I wanted this stuff to be part of the public record.
1213
00:52:09.560 --> 00:52:12.282
So finally, I sent a note to the court security office
1214
00:52:12.282 --> 00:52:16.830
saying, look if you don't get this back to me publicly
1215
00:52:16.830 --> 00:52:18.590
by close of business tomorrow,
1216
00:52:18.590 --> 00:52:20.292
or rather if you don't make a decision
1217
00:52:20.292 --> 00:52:21.670
one way or the other,
1218
00:52:21.670 --> 00:52:23.010
you know, yes, you can file it publicly,
1219
00:52:23.010 --> 00:52:24.310
no you gotta litigate,
1220
00:52:24.310 --> 00:52:26.400
if you don't, if you continue to do nothing,
1221
00:52:26.400 --> 00:52:27.470
I'm gonna file a motion
1222
00:52:27.470 --> 00:52:29.111
and you have 'til close a business tomorrow.
1223
00:52:29.111 --> 00:52:31.602
At one o'clock the next afternoon,
1224
00:52:31.602 --> 00:52:33.620
they sent me an email saying it's all been cleared
1225
00:52:33.620 --> 00:52:34.453
for public filing.
1226
00:52:34.453 --> 00:52:36.097
You can clear it, you can file it all
1227
00:52:36.097 --> 00:52:38.529
and they didn't redact anything.
1228
00:52:38.529 --> 00:52:40.660
And I didn't wait for them to change their mind,
1229
00:52:40.660 --> 00:52:44.230
I filed it instantly, publicly
1230
00:52:44.230 --> 00:52:46.810
and then immediately afterwards,
1231
00:52:46.810 --> 00:52:49.840
and I'm completely unapologetic about this,
1232
00:52:49.840 --> 00:52:51.720
press send and sent the material
1233
00:52:51.720 --> 00:52:53.620
to Dana Priest at the Washington Post.
1234
00:52:54.900 --> 00:52:56.360
All of it,
1235
00:52:56.360 --> 00:52:58.780
the description, everything that I had filed,
1236
00:52:58.780 --> 00:53:01.410
which was now allowed to be, I was allowed to do that.
1237
00:53:01.410 --> 00:53:04.530
That night she sends me a note back
1238
00:53:04.530 --> 00:53:07.920
or maybe calls me and leaves a voicemail
1239
00:53:07.920 --> 00:53:10.043
saying, Joe we're gonna run a story on this.
1240
00:53:11.660 --> 00:53:13.150
It's gonna run in tomorrow's Post.
1241
00:53:13.150 --> 00:53:17.120
Well, as it happened, the next day
1242
00:53:17.120 --> 00:53:22.110
is the day that Alberto Gonzales was testifying
1243
00:53:22.110 --> 00:53:24.530
at the Senate Judiciary Committee
1244
00:53:24.530 --> 00:53:26.740
about his confirmation from going from
1245
00:53:26.740 --> 00:53:28.660
White House counsel to Attorney General.
1246
00:53:28.660 --> 00:53:33.280
Ashcroft had left and Gonzales was named to be acting AG
1247
00:53:33.280 --> 00:53:35.530
and this was his confirmation hearing.
1248
00:53:35.530 --> 00:53:36.990
The day of his confirmation hearing
1249
00:53:36.990 --> 00:53:39.470
there is a front page article in the Washington Post
1250
00:53:39.470 --> 00:53:42.350
about Mamdouh Habib's rendition describing his torture
1251
00:53:42.350 --> 00:53:44.640
and describing the U.S. involvement in it.
1252
00:53:44.640 --> 00:53:46.670
And Dick Durbin bless his heart,
1253
00:53:46.670 --> 00:53:49.620
Senator from Illinois, holds up the Washington Post
1254
00:53:49.620 --> 00:53:52.090
and shows it to Gonzales, who is blind sided, right,
1255
00:53:52.090 --> 00:53:53.210
'cause he doesn't know this is coming.
1256
00:53:53.210 --> 00:53:55.603
It just appears, so he's not prepped on it.
1257
00:53:55.603 --> 00:53:57.200
Says did you see this?
1258
00:53:57.200 --> 00:53:59.200
If this is true, isn't this illegal?
1259
00:53:59.200 --> 00:54:02.210
And Gonzales, says yes if that's true, it's illegal.
1260
00:54:02.210 --> 00:54:05.350
If that's true, a crime was committed.
1261
00:54:05.350 --> 00:54:06.783
That's a Tuesday.
1262
00:54:08.140 --> 00:54:10.940
Thursday morning, Wednesday night, something like that,
1263
00:54:10.940 --> 00:54:15.210
I got a phone call from the Australian embassy
1264
00:54:15.210 --> 00:54:17.653
saying Mamdouh is gonna be released.
1265
00:54:19.270 --> 00:54:20.250
Don't tell anybody yet,
1266
00:54:20.250 --> 00:54:21.480
'cause the Defense Department asked us
1267
00:54:21.480 --> 00:54:22.890
not to make it public.
1268
00:54:22.890 --> 00:54:26.300
But when he's released, would you be willing to fly,
1269
00:54:26.300 --> 00:54:27.750
we're gonna charter a plane
1270
00:54:27.750 --> 00:54:30.773
and fly him home from Australia or to Australia,
1271
00:54:30.773 --> 00:54:33.813
would you be willing to accompany him on the flight?
1272
00:54:34.780 --> 00:54:37.920
And I said yes, and that was early January of 2005.
1273
00:54:37.920 --> 00:54:41.317
He flew home January 30th or 31st.
1274
00:54:41.317 --> 00:54:44.150
And I am the only lawyer who has been allowed
1275
00:54:44.150 --> 00:54:47.023
to accompany a client home from the base.
1276
00:54:48.150 --> 00:54:50.065
And that's how he got home.
Why did they,
1277
00:54:50.065 --> 00:54:52.530
why did Australia want you to accompany him?
1278
00:54:52.530 --> 00:54:53.845
Probably because there were,
1279
00:54:53.845 --> 00:54:57.630
I suspect there were allegations
1280
00:54:57.630 --> 00:54:58.910
that the Australian government
1281
00:54:58.910 --> 00:55:01.820
had been aware of his rendition,
1282
00:55:01.820 --> 00:55:03.230
knew that he was being rendered,
1283
00:55:03.230 --> 00:55:05.200
knew that he'd been tortured before the rendition,
1284
00:55:05.200 --> 00:55:06.500
and knew that he was gonna be tortured
1285
00:55:06.500 --> 00:55:08.755
and may have even been present in Egypt
1286
00:55:08.755 --> 00:55:12.400
while he was being tortured and hadn't come to his defense.
1287
00:55:12.400 --> 00:55:14.750
So the Australian government was under the gun,
1288
00:55:16.280 --> 00:55:18.670
because they of course saw this document
1289
00:55:18.670 --> 00:55:19.720
that I filed as well.
1290
00:55:20.720 --> 00:55:23.650
And in order to demonstrate, no, no, no, no,
1291
00:55:23.650 --> 00:55:26.080
we're very solicitous of this guy,
1292
00:55:26.080 --> 00:55:28.278
we're even letting his lawyer there.
1293
00:55:28.278 --> 00:55:31.860
The real question is why the U.S. government allowed me to,
1294
00:55:31.860 --> 00:55:34.000
because I had to get to the base.
1295
00:55:34.000 --> 00:55:35.393
We met at Guantanamo.
1296
00:55:36.270 --> 00:55:39.260
I (clears throat) the way it worked was,
1297
00:55:39.260 --> 00:55:43.840
I met the Australian contingent at the airport in Miami
1298
00:55:43.840 --> 00:55:46.060
at a special private charter section
1299
00:55:46.060 --> 00:55:49.750
of the airport in Miami, this sleek, fancy Gulfstream jet.
1300
00:55:49.750 --> 00:55:54.083
We hopped from Miami to Guantanamo and we pick him up there.
1301
00:55:55.070 --> 00:55:56.410
We pick up Habib there.
1302
00:55:56.410 --> 00:55:58.196
But I didn't have, I didn't have,
1303
00:55:58.196 --> 00:56:01.030
I mean, I was on the military base.
1304
00:56:01.030 --> 00:56:02.360
Ordinarily you can't get to the base
1305
00:56:02.360 --> 00:56:03.200
unless you have clearance.
1306
00:56:03.200 --> 00:56:04.820
You have to be allowed to go.
1307
00:56:04.820 --> 00:56:07.120
Not just your regular security clearance,
1308
00:56:07.120 --> 00:56:09.720
but you have to be permitted to land at a military.
1309
00:56:09.720 --> 00:56:11.510
I can't just walk into any military base.
1310
00:56:11.510 --> 00:56:13.460
You have to be authorized to be there.
1311
00:56:13.460 --> 00:56:15.450
So they wouldn't let me get off the plane.
1312
00:56:15.450 --> 00:56:17.420
I had to stay on the plane.
1313
00:56:17.420 --> 00:56:22.040
And I remember when they brought Mamdouh in a truck
1314
00:56:22.040 --> 00:56:25.590
up to the plane and the Australian government
1315
00:56:25.590 --> 00:56:28.475
let me sort of go right to the edge of the open,
1316
00:56:28.475 --> 00:56:33.150
the open a stairway down to the tarmac.
1317
00:56:33.150 --> 00:56:35.900
And they walked, they took Mamdouh out of this truck
1318
00:56:35.900 --> 00:56:37.707
and they took off his shackles and everything
1319
00:56:37.707 --> 00:56:39.583
and they hand him his, you know,
1320
00:56:41.074 --> 00:56:43.411
some personals that had been traveling around with him,
1321
00:56:43.411 --> 00:56:45.823
you know, like a wallet and things like that.
1322
00:56:46.846 --> 00:56:51.024
And he walks over from the truck to the plane
1323
00:56:51.024 --> 00:56:54.780
and he told me that it wasn't until he saw me
1324
00:56:54.780 --> 00:56:56.530
in the plane
1325
00:56:56.530 --> 00:56:59.060
that he realized he was going home to Australia.
1326
00:56:59.060 --> 00:57:01.440
He didn't know for sure where he was going.
1327
00:57:01.440 --> 00:57:03.350
And in fact, a guard prior to that
1328
00:57:03.350 --> 00:57:06.173
had told him he was being sent to Egypt.
1329
00:57:08.829 --> 00:57:13.829
So he saw me and we, that was the flight home.
1330
00:57:14.900 --> 00:57:16.500
Can you describe the flight home?
1331
00:57:16.500 --> 00:57:18.702
Were there Americans?
You know, there's a,
1332
00:57:18.702 --> 00:57:20.752
no, there were no Americans on the plane.
1333
00:57:23.110 --> 00:57:25.800
Australian security contingent, you know,
1334
00:57:25.800 --> 00:57:28.760
attorney general from the attorney general,
1335
00:57:28.760 --> 00:57:30.440
their attorney general's office.
1336
00:57:30.440 --> 00:57:31.979
It was very, very casual.
1337
00:57:31.979 --> 00:57:34.050
There was a difference of opinion.
1338
00:57:34.050 --> 00:57:35.280
Mamdouh describes it differently.
1339
00:57:35.280 --> 00:57:37.638
My memory is that it was very boring and everybody slept.
1340
00:57:37.638 --> 00:57:40.630
Mamdouh says, it was very boring.
1341
00:57:40.630 --> 00:57:42.780
Joe slept, I didn't sleep.
1342
00:57:42.780 --> 00:57:44.620
And he says and Joe snores.
1343
00:57:44.620 --> 00:57:47.010
So I, you know, I trust that he's right.
1344
00:57:47.010 --> 00:57:49.263
He wasn't bound?
No.
1345
00:57:49.263 --> 00:57:51.280
Shackled?
Oh no, absolutely not.
1346
00:57:51.280 --> 00:57:53.130
He was free to get up and walk around
1347
00:57:55.230 --> 00:57:58.290
And Maha, his wife, was waiting for him?
1348
00:57:58.290 --> 00:57:59.950
We didn't know that.
1349
00:57:59.950 --> 00:58:02.483
So this was the best part.
1350
00:58:05.890 --> 00:58:07.080
We landed in Sydney.
1351
00:58:07.080 --> 00:58:10.460
We had to stop in Tahiti to refuel,
1352
00:58:10.460 --> 00:58:11.940
but again, you know, just to refuel,
1353
00:58:11.940 --> 00:58:13.540
neither of us got off the plane.
1354
00:58:16.170 --> 00:58:18.300
And then we fly on, I don't know,
1355
00:58:18.300 --> 00:58:20.150
it was, you know, it's a long flight.
1356
00:58:22.260 --> 00:58:26.650
And we landed in Sydney and by that time,
1357
00:58:26.650 --> 00:58:30.006
we had tried to keep the local news from learning about it.
1358
00:58:30.006 --> 00:58:32.730
You know we didn't want there to be a big media
1359
00:58:32.730 --> 00:58:35.320
attention there because this is back when,
1360
00:58:35.320 --> 00:58:36.490
you know not a lotta people had been released yet,
1361
00:58:36.490 --> 00:58:39.160
so there's a lot of attention, much more media news.
1362
00:58:39.160 --> 00:58:41.870
But we were unsuccessful and the media had heard about it.
1363
00:58:41.870 --> 00:58:44.840
So the Australian government landed us at the tarmac
1364
00:58:44.840 --> 00:58:46.296
and unbeknownst to me,
1365
00:58:46.296 --> 00:58:51.296
local council had arranged a small personal jet,
1366
00:58:53.970 --> 00:58:57.430
not a jet, personal plane, a little bitty six seater,
1367
00:58:57.430 --> 00:58:59.650
owned by a friend of his
1368
00:58:59.650 --> 00:59:02.460
to fly us from the international airport at Sydney
1369
00:59:02.460 --> 00:59:05.539
to a local airport nearby.
1370
00:59:05.539 --> 00:59:10.490
And so we got off of this very fancy Gulfstream jet,
1371
00:59:10.490 --> 00:59:12.500
in fact immigration came into,
1372
00:59:12.500 --> 00:59:14.290
they checked my passport there,
1373
00:59:14.290 --> 00:59:18.280
immigration came onto the plane and checked it there.
1374
00:59:18.280 --> 00:59:20.090
They asked for Mr. Habib's passport.
1375
00:59:20.090 --> 00:59:21.290
Mr. Habib, do you have a passport?
1376
00:59:21.290 --> 00:59:22.999
I'm sorry, it's outta date.
1377
00:59:22.999 --> 00:59:25.100
I've been away for a little while.
1378
00:59:25.100 --> 00:59:27.886
And they, oh that's okay.
1379
00:59:27.886 --> 00:59:30.280
And so we walked down the steps of that
1380
00:59:30.280 --> 00:59:33.529
and you know we're kind of rickety and uneasy
1381
00:59:33.529 --> 00:59:35.400
and I didn't even know about this.
1382
00:59:35.400 --> 00:59:37.240
And my co-counsel's there
1383
00:59:37.240 --> 00:59:38.580
and he says, Joe, come we've,
1384
00:59:38.580 --> 00:59:40.320
and so he directs us to this other plane.
1385
00:59:40.320 --> 00:59:41.870
Okay, fine.
1386
00:59:41.870 --> 00:59:44.174
So we walk up the steps of this other little plane,
1387
00:59:44.174 --> 00:59:45.858
Mamdouh was ahead of me,
1388
00:59:45.858 --> 00:59:47.690
and he explains to me, this is what we're gonna do.
1389
00:59:47.690 --> 00:59:49.210
Oh, that's a good idea.
1390
00:59:49.210 --> 00:59:53.340
And he looks in and he sees his wife
1391
00:59:53.340 --> 00:59:56.927
who he hadn't seen in you know, forever sitting in the back.
1392
00:59:56.927 --> 01:00:01.400
And that was completely, and he was shocked by it.
1393
01:00:01.400 --> 01:00:03.200
You know at one point in fact
1394
01:00:03.200 --> 01:00:05.450
interrogators had told him that she was dead.
1395
01:00:06.700 --> 01:00:10.690
He sort of falls back, loses his balance
1396
01:00:10.690 --> 01:00:12.560
and tumbles into the plane,
1397
01:00:12.560 --> 01:00:14.150
pours himself into the back seat.
1398
01:00:14.150 --> 01:00:15.173
They embrace.
1399
01:00:16.377 --> 01:00:20.070
And my co-counsel, I will be forever in his debt for this,
1400
01:00:20.070 --> 01:00:22.450
had the presence of mind to bring this sort of like,
1401
01:00:22.450 --> 01:00:25.960
you know, one of those screens that you put up in your car
1402
01:00:25.960 --> 01:00:27.077
to keep the sun out,
1403
01:00:27.077 --> 01:00:30.753
and he spread it sort of in this jury rig fashion
1404
01:00:30.753 --> 01:00:32.947
between the rows of seats where they were
1405
01:00:32.947 --> 01:00:34.920
and the rows of seats where we were,
1406
01:00:34.920 --> 01:00:36.760
and we were the only people on the plane.
1407
01:00:36.760 --> 01:00:38.942
And the pilot taxis off and takes off
1408
01:00:38.942 --> 01:00:43.320
and all you hear is them sobbing in the seat behind us.
1409
01:00:43.320 --> 01:00:44.340
It was fabulous.
1410
01:00:44.340 --> 01:00:46.080
Give them a little privacy.
1411
01:00:46.080 --> 01:00:49.460
And we were flying along and there's actually press planes,
1412
01:00:49.460 --> 01:00:52.320
helicopters hovering behind us, filming us.
1413
01:00:52.320 --> 01:00:55.260
So then we landed at some other airport,
1414
01:00:55.260 --> 01:00:57.787
I don't know anything about Sydney
1415
01:00:57.787 --> 01:00:59.926
but something out in the suburbs somewhere
1416
01:00:59.926 --> 01:01:04.926
and then took a car to his family's, to his home.
1417
01:01:05.700 --> 01:01:07.800
He had said to us that
1418
01:01:07.800 --> 01:01:09.173
when we interviewed him,
1419
01:01:09.173 --> 01:01:10.660
that he didn't believe it was his wife,
1420
01:01:10.660 --> 01:01:15.430
because they told him that she was killed, she was dead.
1421
01:01:15.430 --> 01:01:16.397
Did you?
1422
01:01:16.397 --> 01:01:17.260
You didn't get that--
1423
01:01:17.260 --> 01:01:19.670
I think that at first he didn't know who it was.
1424
01:01:19.670 --> 01:01:22.820
I mean he came around to believing it.
1425
01:01:22.820 --> 01:01:25.676
That was obvious, but at first he was really shook
1426
01:01:25.676 --> 01:01:27.670
by the sight of this person.
1427
01:01:27.670 --> 01:01:29.270
You gotta remember he hadn't seen her in a long time
1428
01:01:29.270 --> 01:01:30.470
and she hadn't seen him.
1429
01:01:32.090 --> 01:01:36.166
So was David Hicks in this mix at all?
1430
01:01:36.166 --> 01:01:37.790
David Hicks was not your client,
1431
01:01:37.790 --> 01:01:39.330
so this was totally separate.
1432
01:01:39.330 --> 01:01:42.340
David was, David was our client.
1433
01:01:42.340 --> 01:01:44.150
He was part of Rasul.
1434
01:01:44.150 --> 01:01:46.941
But while Rasul was pending,
1435
01:01:46.941 --> 01:01:49.520
they designated David as a candidate
1436
01:01:49.520 --> 01:01:51.420
for military commissions.
1437
01:01:51.420 --> 01:01:54.100
So then he was sort of in a separate category,
1438
01:01:54.100 --> 01:01:57.250
because one, everything that Rasul was about was
1439
01:01:57.250 --> 01:01:59.770
holding people with no legal process at all.
1440
01:01:59.770 --> 01:02:01.740
Well, suddenly Hicks has legal process.
1441
01:02:01.740 --> 01:02:03.870
Nobody knew what it was about,
1442
01:02:03.870 --> 01:02:06.970
and they designated a military lawyer for him.
1443
01:02:06.970 --> 01:02:10.560
So though Hicks was part of Rasul,
1444
01:02:10.560 --> 01:02:12.608
he was also a special case.
1445
01:02:12.608 --> 01:02:14.770
And since he had a military lawyer,
1446
01:02:14.770 --> 01:02:17.310
after Rasul came down, I didn't see him.
1447
01:02:17.310 --> 01:02:19.660
I eventually did meet him on one of my other trips.
1448
01:02:19.660 --> 01:02:21.569
I happened to go down there the same time
1449
01:02:21.569 --> 01:02:25.640
that his lawyer was seeing David
1450
01:02:25.640 --> 01:02:28.240
and I was able to spend, you know,
1451
01:02:28.240 --> 01:02:29.757
30 seconds chatting with him.
1452
01:02:29.757 --> 01:02:31.620
That's the only time I met him.
1453
01:02:31.620 --> 01:02:33.950
And he hadn't, he was not released for some time,
1454
01:02:33.950 --> 01:02:35.694
'til sometime later.
1455
01:02:35.694 --> 01:02:37.471
Dan Morely represented him.
So did he know,
1456
01:02:37.471 --> 01:02:39.970
did he feel like he, since he was also Australian,
1457
01:02:39.970 --> 01:02:41.870
that he should have been released along with Habib,
1458
01:02:41.870 --> 01:02:42.720
at the same time?
1459
01:02:43.848 --> 01:02:44.800
That I can't speak to.
1460
01:02:44.800 --> 01:02:48.050
I didn't, I don't know how he--
1461
01:02:48.050 --> 01:02:49.450
Who else did you represent
1462
01:02:49.450 --> 01:02:50.650
if you can tell us,
1463
01:02:50.650 --> 01:02:53.063
if you kept returning to Guantanamo,
1464
01:02:53.063 --> 01:02:55.770
who else were you representing during that time?
1465
01:02:55.770 --> 01:02:57.532
Well, the when,
1466
01:02:57.532 --> 01:03:02.220
so the original four who were part of Rasul,
1467
01:03:02.220 --> 01:03:04.620
you know, Asif Iqbal and Shafiq Rasul,
1468
01:03:04.620 --> 01:03:05.730
they were released in March
1469
01:03:05.730 --> 01:03:08.330
and then Habib was released the following January
1470
01:03:08.330 --> 01:03:10.800
and then Hicks got out later and he had military council.
1471
01:03:10.800 --> 01:03:13.450
So that case all the people were gone.
1472
01:03:13.450 --> 01:03:18.450
And then in 2005 I took a hiatus
1473
01:03:19.600 --> 01:03:21.166
and wasn't representing folks,
1474
01:03:21.166 --> 01:03:23.180
'cause that's when I wrote the book that I wrote.
1475
01:03:23.180 --> 01:03:25.063
Could you tell us just for the public,
1476
01:03:25.063 --> 01:03:26.070
with book you wrote?
1477
01:03:26.070 --> 01:03:27.450
It's called "Guantanamo and the Abuse
1478
01:03:27.450 --> 01:03:28.460
of Presidential Power."
1479
01:03:28.460 --> 01:03:31.027
And that was published in 2006.
1480
01:03:31.027 --> 01:03:32.640
And so after that case was done
1481
01:03:32.640 --> 01:03:35.860
or after the book was done is when
1482
01:03:35.860 --> 01:03:38.850
in September of 2006 is when the President announced
1483
01:03:38.850 --> 01:03:43.120
that he was taking the people out of the CIA black sites
1484
01:03:43.120 --> 01:03:44.786
and bringing them to Guantanamo.
1485
01:03:44.786 --> 01:03:49.167
And I got, I was contacted by
1486
01:03:49.167 --> 01:03:50.870
the Center for Constitutional Rights
1487
01:03:50.870 --> 01:03:53.410
and asked whether I would represent one of those guys.
1488
01:03:53.410 --> 01:03:55.438
And I do along with Brent Mickum,
1489
01:03:55.438 --> 01:03:58.492
who similarly, his original clients had been released
1490
01:03:58.492 --> 01:04:00.480
and he was without a client as well.
1491
01:04:00.480 --> 01:04:04.320
So we got back in and we now represent Abu Zubaydah.
1492
01:04:04.320 --> 01:04:05.843
And can you tell us
1493
01:04:05.843 --> 01:04:08.309
a little bit about that representation?
1494
01:04:08.309 --> 01:04:12.284
So Zubaydah is to me,
1495
01:04:12.284 --> 01:04:13.913
I didn't know this at the time,
1496
01:04:15.060 --> 01:04:17.750
one of the most important cases there.
1497
01:04:17.750 --> 01:04:19.852
And the reason,
1498
01:04:19.852 --> 01:04:20.685
and when I say I didn't know it at the time,
1499
01:04:20.685 --> 01:04:21.518
I didn't know it,
1500
01:04:21.518 --> 01:04:23.700
all I knew when they asked me to represent him
1501
01:04:23.700 --> 01:04:25.920
is that he was one of the high value guys
1502
01:04:25.920 --> 01:04:27.550
or what they call high value.
1503
01:04:27.550 --> 01:04:32.550
He was the first person who was held in a CIA black site.
1504
01:04:32.910 --> 01:04:35.600
He was picked up almost 10 years ago exactly,
1505
01:04:35.600 --> 01:04:38.680
in end of March, 2002,
1506
01:04:38.680 --> 01:04:42.680
transferred to a black site in Thailand.
1507
01:04:42.680 --> 01:04:44.575
And he was the first one subjected to
1508
01:04:44.575 --> 01:04:47.293
the enhanced interrogation techniques.
1509
01:04:47.293 --> 01:04:49.345
Because he was the first,
1510
01:04:49.345 --> 01:04:51.790
we know more about his interrogation
1511
01:04:51.790 --> 01:04:55.370
or I should say more has been released publicly
1512
01:04:55.370 --> 01:04:57.650
or leaked about his interrogation
1513
01:04:57.650 --> 01:05:00.200
than any of the other high value people.
1514
01:05:00.200 --> 01:05:03.020
And we know, because the memos that were written,
1515
01:05:03.020 --> 01:05:04.830
the torture memos,
1516
01:05:04.830 --> 01:05:07.460
which are the subject of so much, you know, infamy
1517
01:05:07.460 --> 01:05:10.703
were written to justify Abu Zubaydah's interrogation.
1518
01:05:12.265 --> 01:05:14.140
And then they later used that justification
1519
01:05:14.140 --> 01:05:14.973
for everybody else.
1520
01:05:14.973 --> 01:05:16.456
But it was written for,
1521
01:05:16.456 --> 01:05:17.400
you know in the summer of 2002
1522
01:05:17.400 --> 01:05:20.320
to justify his CIA interrogation.
1523
01:05:20.320 --> 01:05:22.270
And Ali Soufan and his book,
1524
01:05:22.270 --> 01:05:27.270
what he talks about is his trip to Thailand to be,
1525
01:05:28.120 --> 01:05:31.300
to originally be responsible for Zubaydah's interrogation
1526
01:05:31.300 --> 01:05:33.271
and then the CIA took over and kicked him out
1527
01:05:33.271 --> 01:05:37.260
and then that's when enhanced program began.
1528
01:05:37.260 --> 01:05:39.960
We know that Abu Zubaydah was waterboarded 83 times
1529
01:05:39.960 --> 01:05:43.450
in the month of August, 2002 alone.
1530
01:05:43.450 --> 01:05:44.872
And these are all not from,
1531
01:05:44.872 --> 01:05:48.010
I can't tell you anything that my client tells me,
1532
01:05:48.010 --> 01:05:50.389
but this is reported in other places that are.
1533
01:05:50.389 --> 01:05:53.160
So we have the description in the Red Cross
1534
01:05:53.160 --> 01:05:55.863
of what his interrogations were.
1535
01:05:56.710 --> 01:05:59.960
He's the only one who was subjected to all
1536
01:05:59.960 --> 01:06:01.960
of the enhanced interrogation program,
1537
01:06:01.960 --> 01:06:03.878
all of the enhanced interrogation techniques,
1538
01:06:03.878 --> 01:06:05.160
because he was the first,
1539
01:06:05.160 --> 01:06:06.470
so they were trying out all of 'em.
1540
01:06:06.470 --> 01:06:08.270
He was described by one of the interrogators
1541
01:06:08.270 --> 01:06:09.931
as the guinea pig.
1542
01:06:09.931 --> 01:06:12.950
Whereas by the time Khalid Sheikh Mohammed
1543
01:06:12.950 --> 01:06:16.592
and al-Nashiri, and Bin Attash came along later,
1544
01:06:16.592 --> 01:06:19.230
they used a much more narrow subset.
1545
01:06:19.230 --> 01:06:20.830
He was subjected to all of them.
1546
01:06:24.510 --> 01:06:27.987
And the reason it mattered, well,
1547
01:06:27.987 --> 01:06:30.220
even if you knew nothing else,
1548
01:06:30.220 --> 01:06:32.786
it would still matter a great deal.
1549
01:06:32.786 --> 01:06:37.770
But it is even more significant because of the difference
1550
01:06:37.770 --> 01:06:39.770
between who they thought Abu Zubaydah was
1551
01:06:39.770 --> 01:06:41.680
when they picked him up and put him through this
1552
01:06:41.680 --> 01:06:43.950
and who they now think he is.
1553
01:06:43.950 --> 01:06:45.885
They now recognize
1554
01:06:45.885 --> 01:06:48.430
and accept that he was not a member of Al-Qaeda.
1555
01:06:48.430 --> 01:06:51.000
He had not sworn bay'ah to bin Ladin.
1556
01:06:51.000 --> 01:06:56.000
He was not ideologically aligned with Al-Qaeda.
1557
01:06:57.125 --> 01:06:59.620
He had no knowledge of,
1558
01:06:59.620 --> 01:07:02.770
or participation in any of Al-Qaeda's plots.
1559
01:07:02.770 --> 01:07:07.430
He's ideologically doesn't believe in the kind of
1560
01:07:07.430 --> 01:07:10.430
what bin Laden would have called offensive jihad,
1561
01:07:10.430 --> 01:07:13.280
that is you take the jihad to the infidel,
1562
01:07:13.280 --> 01:07:14.950
as opposed to defensive jihad,
1563
01:07:14.950 --> 01:07:17.080
which is, you know you have a right to defend
1564
01:07:17.080 --> 01:07:18.780
other Muslims wherever they are,
1565
01:07:18.780 --> 01:07:19.820
but you don't have a right to,
1566
01:07:19.820 --> 01:07:21.803
you know attack innocent people.
1567
01:07:23.150 --> 01:07:24.480
The United States after 9/11,
1568
01:07:24.480 --> 01:07:26.451
didn't recognize those differences.
1569
01:07:26.451 --> 01:07:27.284
They just didn't understand.
1570
01:07:27.284 --> 01:07:29.440
And they thought that all training camps were the same
1571
01:07:29.440 --> 01:07:30.540
and so on.
1572
01:07:30.540 --> 01:07:32.055
And so they thought that Abu Zubaydah
1573
01:07:32.055 --> 01:07:36.240
was a big deal in Al-Qaeda.
1574
01:07:36.240 --> 01:07:38.060
In fact, nothing of the sort,
1575
01:07:38.060 --> 01:07:39.470
and they now accept that.
1576
01:07:39.470 --> 01:07:41.450
So the difference between who he was when they tortured him
1577
01:07:41.450 --> 01:07:42.450
and what they did to him
1578
01:07:42.450 --> 01:07:44.321
and who they now accept them to be,
1579
01:07:44.321 --> 01:07:45.154
you know he's never been charged
1580
01:07:45.154 --> 01:07:46.350
in the military commissions.
1581
01:07:46.350 --> 01:07:47.283
He won't be.
1582
01:07:49.340 --> 01:07:52.680
What they know of him is so insignificant
1583
01:07:52.680 --> 01:07:55.136
compared to--
Who is he then?
1584
01:07:55.136 --> 01:07:56.220
What do you mean who is he?
1585
01:07:56.220 --> 01:07:57.430
I mean what is it,
1586
01:07:57.430 --> 01:07:59.810
if he's none those, what is he?
1587
01:07:59.810 --> 01:08:01.360
Well, I can tell you what's publicly available.
1588
01:08:01.360 --> 01:08:02.193
Yeah.
1589
01:08:02.193 --> 01:08:04.475
What's publicly available is,
1590
01:08:04.475 --> 01:08:05.807
you know he's described in the Washington Post as a,
1591
01:08:05.807 --> 01:08:09.030
you know, a minor personnel clerk,
1592
01:08:09.030 --> 01:08:12.460
a logistics guy for a different camp.
1593
01:08:12.460 --> 01:08:15.230
And the reason he was so widely known is that
1594
01:08:15.230 --> 01:08:18.400
he would arrange travel schedule.
1595
01:08:18.400 --> 01:08:19.710
Bring people into Pakistan,
1596
01:08:19.710 --> 01:08:20.991
so he's on the phone all the time.
1597
01:08:20.991 --> 01:08:22.010
She's on the phone all the time,
1598
01:08:22.010 --> 01:08:23.510
so obviously he's not a maher.
1599
01:08:25.489 --> 01:08:28.487
And you know it's frustrating
1600
01:08:28.487 --> 01:08:30.564
because I am one of the few people in the world
1601
01:08:30.564 --> 01:08:33.343
who actually knows what was done to him,
1602
01:08:34.310 --> 01:08:37.420
and knows the interrogation techniques that were done
1603
01:08:37.420 --> 01:08:38.920
and what effect that they had.
1604
01:08:41.910 --> 01:08:46.640
You know, just what psychologically waterboarding meant
1605
01:08:46.640 --> 01:08:47.473
or, you know I mean,
1606
01:08:47.473 --> 01:08:49.300
they suspended him from hooks in the ceiling.
1607
01:08:49.300 --> 01:08:51.210
I mean, people you can say out loud is that torture?
1608
01:08:51.210 --> 01:08:52.930
Hmm, I don't know, let me just rub my chin a little bit.
1609
01:08:52.930 --> 01:08:54.070
I don't know?
1610
01:08:54.070 --> 01:08:55.010
It's wrong.
1611
01:08:55.010 --> 01:08:56.450
They just suspend him from hooks in the ceiling,
1612
01:08:56.450 --> 01:08:58.160
he can barely, feet dangling on the floor
1613
01:08:58.160 --> 01:09:00.090
and leave him there for five or six hours,
1614
01:09:00.090 --> 01:09:00.923
throw water on him.
1615
01:09:00.923 --> 01:09:03.800
You know he urinates on himself, defecates on himself?
1616
01:09:03.800 --> 01:09:04.720
Is that torture?
1617
01:09:04.720 --> 01:09:05.553
I don't know.
1618
01:09:05.553 --> 01:09:06.860
I'll let you guys debate about that.
1619
01:09:06.860 --> 01:09:09.640
I'm content with the conclusion that that's not good.
1620
01:09:09.640 --> 01:09:10.473
That's wrong.
1621
01:09:11.610 --> 01:09:13.800
I know all the things that happened to him.
1622
01:09:13.800 --> 01:09:16.654
I can only repeat what's public
1623
01:09:16.654 --> 01:09:18.730
and that's very frustrating to me.
1624
01:09:18.730 --> 01:09:20.500
Can you tell us,
1625
01:09:20.500 --> 01:09:22.330
you said, you know what psychological damage.
1626
01:09:22.330 --> 01:09:23.163
Has he--
1627
01:09:24.369 --> 01:09:28.530
I don't wanna suggest, and I'm not a doctor,
1628
01:09:28.530 --> 01:09:31.170
and a doctor has not been allowed to go see him,
1629
01:09:31.170 --> 01:09:32.320
that is our own doctor.
1630
01:09:33.830 --> 01:09:35.730
But I've looked at his medical records
1631
01:09:37.640 --> 01:09:42.313
and they have given me permission to say certain things.
1632
01:09:43.540 --> 01:09:46.890
You know he no longer, he doesn't know his own birthday.
1633
01:09:46.890 --> 01:09:50.700
He can't remember what his mother looks like.
1634
01:09:50.700 --> 01:09:54.170
He can't remember how many brothers and sisters he has.
1635
01:09:54.170 --> 01:09:57.790
He can't remember his father's face.
1636
01:09:57.790 --> 01:09:59.830
I mean, he's just sort of the world is gradually
1637
01:09:59.830 --> 01:10:00.803
going dark for him.
1638
01:10:01.970 --> 01:10:03.180
He's had over,
1639
01:10:03.180 --> 01:10:04.830
it's not quite as bad now, lately,
1640
01:10:04.830 --> 01:10:06.320
but when he first got to Guantanamo
1641
01:10:06.320 --> 01:10:09.440
he had a period where he had over 300 seizures.
1642
01:10:09.440 --> 01:10:10.750
He would just have these,
1643
01:10:10.750 --> 01:10:13.580
he has this acute sensitivity to sound.
1644
01:10:13.580 --> 01:10:15.560
Like we're in a room that's fairly quiet.
1645
01:10:15.560 --> 01:10:20.440
And he would be insane about the sound of the fan.
1646
01:10:20.440 --> 01:10:22.580
It's very, it's a very strange thing.
1647
01:10:22.580 --> 01:10:27.020
And it just, you know, it sends him into this,
1648
01:10:27.020 --> 01:10:27.962
I don't know.
1649
01:10:27.962 --> 01:10:29.847
But he has these, loses consciousness.
1650
01:10:29.847 --> 01:10:31.187
I mean the records are replete with him,
1651
01:10:31.187 --> 01:10:32.673
you know, the guards going into his cell
1652
01:10:32.673 --> 01:10:34.470
with the smelling salts and waking him up.
1653
01:10:34.470 --> 01:10:35.954
He just...
1654
01:10:35.954 --> 01:10:37.713
Less of a problem now.
1655
01:10:39.230 --> 01:10:42.680
Why won't they let the doctors see them?
1656
01:10:42.680 --> 01:10:43.513
Can you tell us?
1657
01:10:43.513 --> 01:10:46.142
Well you know, getting a doctor down there,
1658
01:10:46.142 --> 01:10:48.210
getting an independent doctor
1659
01:10:48.210 --> 01:10:51.780
or doctor who's not with the government down there
1660
01:10:51.780 --> 01:10:52.990
is a real challenge.
1661
01:10:52.990 --> 01:10:54.908
And you gotta, you know,
1662
01:10:54.908 --> 01:10:57.250
that doctor has to have a top security,
1663
01:10:57.250 --> 01:10:59.550
top secret clearance, and you've gotta
1664
01:10:59.550 --> 01:11:03.410
demonstrate what its role is gonna be in the case.
1665
01:11:03.410 --> 01:11:04.890
And there, all I can tell you is
1666
01:11:04.890 --> 01:11:06.930
that there are a lot of motions that are pending.
1667
01:11:06.930 --> 01:11:09.530
And why, and again, you know,
1668
01:11:09.530 --> 01:11:10.363
whatever you could tell us,
1669
01:11:10.363 --> 01:11:12.250
why wouldn't they release him if he turns out to be
1670
01:11:12.250 --> 01:11:16.190
a very minor figure who is so damaged that he--
1671
01:11:16.190 --> 01:11:18.469
Look there are, over half the people at the base now
1672
01:11:18.469 --> 01:11:20.690
have been cleared for release.
1673
01:11:20.690 --> 01:11:22.544
Cleared by two administrations,
1674
01:11:22.544 --> 01:11:24.583
and nobody can get out.
1675
01:11:25.490 --> 01:11:26.323
So.
Has he been
1676
01:11:26.323 --> 01:11:27.930
cleared for release?
1677
01:11:27.930 --> 01:11:28.880
That's not public.
1678
01:11:28.880 --> 01:11:30.495
I can't tell you that.
1679
01:11:30.495 --> 01:11:33.980
Has your sense of Guantanamo
1680
01:11:35.390 --> 01:11:38.580
changed in now representing Zubaydah
1681
01:11:38.580 --> 01:11:40.343
and seeing it from that angle
1682
01:11:40.343 --> 01:11:42.709
given what you saw with Habib?
1683
01:11:42.709 --> 01:11:44.543
Yeah, there's no question.
1684
01:11:45.930 --> 01:11:47.470
The thing,
1685
01:11:47.470 --> 01:11:51.120
no it's, Guantanamo is a number of different units
1686
01:11:51.120 --> 01:11:53.970
or camps, and not everybody's in the same camp
1687
01:11:53.970 --> 01:11:57.570
and not everybody is subject to exactly the same conditions.
1688
01:11:57.570 --> 01:11:59.620
Zubaydah is in a place called Camp Seven.
1689
01:12:00.680 --> 01:12:05.650
But compared for instance to maximum security units
1690
01:12:05.650 --> 01:12:06.483
in the United States,
1691
01:12:06.483 --> 01:12:10.450
compared to administrative segregation units
1692
01:12:10.450 --> 01:12:11.580
in the United States,
1693
01:12:11.580 --> 01:12:13.750
conditions at Guantanamo for the great majority
1694
01:12:13.750 --> 01:12:16.260
of the people down there are vastly better.
1695
01:12:16.260 --> 01:12:17.900
Much better than they used to be.
1696
01:12:17.900 --> 01:12:19.550
There's a lot of communal living.
1697
01:12:21.037 --> 01:12:24.224
It is, it really is a fairly well run prison now,
1698
01:12:24.224 --> 01:12:25.600
as prisons go.
1699
01:12:25.600 --> 01:12:28.070
I mean prisons can be colossally cruel places,
1700
01:12:28.070 --> 01:12:30.670
and it is not as bad as a lot of
1701
01:12:30.670 --> 01:12:34.343
American mainstream, mainland prisons.
1702
01:12:35.820 --> 01:12:39.850
The moral bankruptcy of Guantanamo
1703
01:12:39.850 --> 01:12:42.630
is no longer the conditions under which they are held.
1704
01:12:42.630 --> 01:12:43.810
It is the fact that
1705
01:12:45.140 --> 01:12:47.600
many, many people have been cleared for release
1706
01:12:47.600 --> 01:12:49.168
and can't get out.
1707
01:12:49.168 --> 01:12:53.220
And that's, and it's become such a political football
1708
01:12:53.220 --> 01:12:55.990
that it's impossible to release those guys.
1709
01:12:55.990 --> 01:12:59.707
That's what makes it morally bankrupt in my estimation.
1710
01:12:59.707 --> 01:13:02.090
I know you can't tell us, describe it,
1711
01:13:02.090 --> 01:13:04.320
I assume, but you have been to Camp Seven then,
1712
01:13:04.320 --> 01:13:05.307
is that what you're saying?
1713
01:13:05.307 --> 01:13:06.410
No and no I can't,
1714
01:13:06.410 --> 01:13:07.410
I'm not saying that.
1715
01:13:09.384 --> 01:13:11.990
He's brought from Camp Seven to a room
1716
01:13:11.990 --> 01:13:13.253
where I meet with him.
1717
01:13:14.350 --> 01:13:15.860
And I'm allowed to say that he's in a place
1718
01:13:15.860 --> 01:13:18.773
called Camp Seven, but I've never been back to it.
1719
01:13:19.690 --> 01:13:20.850
And so I'll just ask you,
1720
01:13:20.850 --> 01:13:22.380
that I'm sure we know the answers,
1721
01:13:22.380 --> 01:13:24.147
have you ever heard of Camp No?
1722
01:13:24.147 --> 01:13:25.923
Have you ever seen Camp No?
1723
01:13:25.923 --> 01:13:28.980
I'm not sure whether I've ever seen Camp No.
1724
01:13:28.980 --> 01:13:31.040
I may have seen someplace that is Camp No
1725
01:13:31.040 --> 01:13:33.913
that I didn't know that it was.
1726
01:13:35.450 --> 01:13:37.160
But I've never seen a place that has been described
1727
01:13:37.160 --> 01:13:40.253
to me as, no one's ever said that's Camp No.
1728
01:13:41.380 --> 01:13:42.213
Do you know anything more
1729
01:13:42.213 --> 01:13:43.730
about Camp No that--
1730
01:13:43.730 --> 01:13:45.477
Only what I read in the papers.
1731
01:13:45.477 --> 01:13:46.940
Okay.
1732
01:13:46.940 --> 01:13:48.990
You mentioned Jose Padilla earlier.
1733
01:13:48.990 --> 01:13:50.440
Did you work on his case?
1734
01:13:50.440 --> 01:13:51.730
No.
1735
01:13:51.730 --> 01:13:54.790
When, so all of them went up to the Supreme Court
1736
01:13:54.790 --> 01:13:56.970
at the same time: Rasul, Padilla, and Hamdi.
1737
01:13:56.970 --> 01:13:58.978
And we were all working together
1738
01:13:58.978 --> 01:14:00.400
because everybody recognized
1739
01:14:00.400 --> 01:14:03.413
that the cases were gonna be examined as a set.
1740
01:14:04.260 --> 01:14:06.590
We didn't realize that Padilla would be...
1741
01:14:08.810 --> 01:14:11.437
Well some people feared that Padilla
1742
01:14:11.437 --> 01:14:13.850
would get the result that it did,
1743
01:14:13.850 --> 01:14:15.010
rather than a merits ruling,
1744
01:14:15.010 --> 01:14:15.977
just sort of a, you know, no you didn't file
1745
01:14:15.977 --> 01:14:18.090
in the right court ruling.
1746
01:14:18.090 --> 01:14:21.250
But they raised sort of a cluster of cases,
1747
01:14:21.250 --> 01:14:23.470
a cluster of circumstances that it made sense
1748
01:14:23.470 --> 01:14:25.210
to resolve as a set.
1749
01:14:25.210 --> 01:14:29.470
So Rasul is foreign nationals outside the country.
1750
01:14:29.470 --> 01:14:33.730
Hamdi is U.S. citizen captured outside the country,
1751
01:14:33.730 --> 01:14:34.940
but brought here.
1752
01:14:34.940 --> 01:14:38.380
And Padilla is U.S. citizen captured inside the country.
1753
01:14:38.380 --> 01:14:40.480
So it made sense for us to all
1754
01:14:42.430 --> 01:14:45.140
coordinate and align our presentations.
1755
01:14:45.140 --> 01:14:46.920
You ever visited the Naval brig
1756
01:14:46.920 --> 01:14:49.850
to see Padilla or--
No, or Hamdi, no.
1757
01:14:49.850 --> 01:14:52.017
Hamdi, and
1758
01:14:54.818 --> 01:14:55.910
did you ever go to Egypt
1759
01:14:55.910 --> 01:14:58.350
to see the conditions that Habib--
1760
01:14:58.350 --> 01:14:59.730
Oh no, no, no, no,
1761
01:14:59.730 --> 01:15:01.440
he, as best we can reconstruct,
1762
01:15:01.440 --> 01:15:02.860
he was in the state security prison.
1763
01:15:02.860 --> 01:15:04.320
I wouldn't be able to go there.
1764
01:15:04.320 --> 01:15:06.900
I mean, it's the answer is no, I haven't gone,
1765
01:15:06.900 --> 01:15:09.745
but I couldn't get in even if I did.
1766
01:15:09.745 --> 01:15:12.047
And you didn't go to any other black site--
1767
01:15:12.047 --> 01:15:14.150
Oh, no you can't go to a black site.
1768
01:15:14.150 --> 01:15:15.576
I'd like to go to a black site.
1769
01:15:15.576 --> 01:15:18.240
But no, the only other prisons,
1770
01:15:18.240 --> 01:15:19.520
the only prisons that,
1771
01:15:19.520 --> 01:15:20.840
other prisons that I went to in connection
1772
01:15:20.840 --> 01:15:23.760
with post 9/11 work, were not in connection with Rasul.
1773
01:15:23.760 --> 01:15:25.480
I represented guys who were in Iraq as well
1774
01:15:25.480 --> 01:15:26.313
on a different case,
1775
01:15:26.313 --> 01:15:29.050
and I went to see them in the prison in Iraq.
1776
01:15:29.050 --> 01:15:31.473
It was a U.S. facility in Iraq.
1777
01:15:33.930 --> 01:15:35.990
You mentioned being Jewish earlier.
1778
01:15:35.990 --> 01:15:38.020
Did that impact at all in terms
1779
01:15:38.020 --> 01:15:43.020
of your relationship with either detainee that you--
1780
01:15:43.650 --> 01:15:44.483
Never has.
1781
01:15:44.483 --> 01:15:46.080
Absolutely nothing.
1782
01:15:46.080 --> 01:15:46.985
Everybody asks that.
1783
01:15:46.985 --> 01:15:48.420
Everybody asks that.
1784
01:15:48.420 --> 01:15:53.052
And you know, again, I have to, I can't,
1785
01:15:53.052 --> 01:15:55.140
if it hasn't been cleared,
1786
01:15:55.140 --> 01:15:57.140
I can't tell you what Abu Zubaydah says.
1787
01:15:58.090 --> 01:16:00.090
But I can tell you it's not a problem at all.
1788
01:16:00.090 --> 01:16:01.660
There are a lotta lawyers who've been involved
1789
01:16:01.660 --> 01:16:03.600
in Guantanamo litigation who are Jewish,
1790
01:16:03.600 --> 01:16:04.510
from the very beginning.
1791
01:16:04.510 --> 01:16:06.330
And in fact, the core,
1792
01:16:06.330 --> 01:16:09.200
the nucleus from the beginning is,
1793
01:16:09.200 --> 01:16:10.550
were mostly Jewish lawyers.
1794
01:16:12.280 --> 01:16:15.560
Me, Michael, Tom Wilner at Sherman and Sterling,
1795
01:16:15.560 --> 01:16:20.560
Neil Koslow, the nucleus we're Jewish lawyers,
1796
01:16:21.160 --> 01:16:22.510
which I think is wonderful.
1797
01:16:26.130 --> 01:16:27.760
Habib, no.
1798
01:16:27.760 --> 01:16:29.760
It just simply has never been a problem.
1799
01:16:30.940 --> 01:16:33.410
It's much more of a problem for some American Jews here,
1800
01:16:33.410 --> 01:16:35.530
than it is for those guys there.
1801
01:16:35.530 --> 01:16:37.160
And did the government ever try to interfere
1802
01:16:37.160 --> 01:16:38.940
with your meetings with Habib
1803
01:16:38.940 --> 01:16:41.090
or with Zubaydah where--
1804
01:16:41.090 --> 01:16:42.290
Well one doesn't know.
1805
01:16:43.920 --> 01:16:45.115
There are some indications
1806
01:16:45.115 --> 01:16:48.140
that there may have been some surveillance.
1807
01:16:48.140 --> 01:16:49.870
I mean, they do monitor your interviews.
1808
01:16:49.870 --> 01:16:51.563
They can watch them.
1809
01:16:52.600 --> 01:16:53.843
Do you think they listen in?
1810
01:16:54.680 --> 01:16:55.780
They say they don't.
1811
01:16:57.920 --> 01:17:00.050
I think it's very unlikely now,
1812
01:17:00.050 --> 01:17:03.830
because none of these guys are important
1813
01:17:03.830 --> 01:17:05.660
for intelligence gathering purposes.
1814
01:17:05.660 --> 01:17:06.493
I mean, they've been there so long.
1815
01:17:06.493 --> 01:17:09.473
It's not an intelligence gathering facility anymore.
1816
01:17:10.590 --> 01:17:13.080
Back then, maybe.
1817
01:17:13.080 --> 01:17:14.570
Back then it wasn't important,
1818
01:17:14.570 --> 01:17:15.920
but they thought it was,
1819
01:17:15.920 --> 01:17:17.770
so they might've been treating it that way more.
1820
01:17:17.770 --> 01:17:18.770
And you started saying
1821
01:17:18.770 --> 01:17:19.970
about the government interference,
1822
01:17:19.970 --> 01:17:22.870
did you have a story to tell with that or it's just that?
1823
01:17:22.870 --> 01:17:24.050
There was some indication
1824
01:17:24.050 --> 01:17:26.400
that they might've been monitoring what,
1825
01:17:26.400 --> 01:17:28.050
my first conversation with Habib.
1826
01:17:29.670 --> 01:17:33.110
He later reported to me that after I left one day,
1827
01:17:33.110 --> 01:17:34.900
you know, you're there for the morning,
1828
01:17:34.900 --> 01:17:36.340
then they kick you out for lunch
1829
01:17:36.340 --> 01:17:37.500
and then you come back after lunch.
1830
01:17:37.500 --> 01:17:39.729
And he said that after I left one day,
1831
01:17:39.729 --> 01:17:43.740
they came in and were saying something
1832
01:17:43.740 --> 01:17:45.630
that indicated that they had heard what I had said,
1833
01:17:45.630 --> 01:17:47.720
what we had been talking about.
1834
01:17:47.720 --> 01:17:49.650
I'm not quite sure.
1835
01:17:49.650 --> 01:17:51.970
Did that surprise you?
1836
01:17:51.970 --> 01:17:52.940
No, not initially.
1837
01:17:52.940 --> 01:17:54.660
I mean they were still really freaked out
1838
01:17:54.660 --> 01:17:55.960
about us going down there.
1839
01:17:57.100 --> 01:17:57.933
You know, I mean,
1840
01:17:57.933 --> 01:18:00.080
when we, they were still trying to interfere.
1841
01:18:00.080 --> 01:18:01.810
You know when Tom Wilner first went down there,
1842
01:18:01.810 --> 01:18:02.643
that's when
1843
01:18:05.680 --> 01:18:09.820
his client said to him that they had,
1844
01:18:09.820 --> 01:18:12.490
an interrogator had come to him, to the to the client,
1845
01:18:12.490 --> 01:18:14.270
and said, why are you trusting this guy?
1846
01:18:14.270 --> 01:18:16.970
He's a Jew and he works for a Jew firm that, you know,
1847
01:18:17.920 --> 01:18:19.020
represents the state of Israel.
1848
01:18:19.020 --> 01:18:20.550
What are you, you know?
1849
01:18:20.550 --> 01:18:21.650
Most of these guys are
1850
01:18:22.620 --> 01:18:24.160
they scoff at things like that.
1851
01:18:24.160 --> 01:18:25.392
They just think these are
1852
01:18:25.392 --> 01:18:28.370
childish attempts to frustrate relationships.
1853
01:18:28.370 --> 01:18:30.024
They think these guys must be,
1854
01:18:30.024 --> 01:18:31.310
you know, what do you think I'm a five year old?
1855
01:18:31.310 --> 01:18:33.023
What do ya, come on.
1856
01:18:33.023 --> 01:18:34.870
But they were still trying.
1857
01:18:34.870 --> 01:18:35.820
They don't anymore.
1858
01:18:36.960 --> 01:18:37.970
You had mentioned that
1859
01:18:37.970 --> 01:18:40.110
you don't think closing Guantanamo is such,
1860
01:18:40.110 --> 01:18:43.000
is the issue for you is as it is for a lotta people,
1861
01:18:43.000 --> 01:18:46.510
that it's really, it really is a different kind of issue.
1862
01:18:46.510 --> 01:18:49.200
Could you describe, discuss that a little bit,
1863
01:18:49.200 --> 01:18:51.210
why you say that?
1864
01:18:51.210 --> 01:18:55.360
Well, there's no question that Guantanamo
1865
01:18:55.360 --> 01:18:57.090
has become a symbol.
1866
01:18:57.090 --> 01:19:00.600
And to the extent that it's a symbol,
1867
01:19:00.600 --> 01:19:02.980
it is bad to keep it open,
1868
01:19:02.980 --> 01:19:06.070
because it's bad for national security, right?
1869
01:19:06.070 --> 01:19:09.840
The existence of the symbol is a recruiting tool.
1870
01:19:09.840 --> 01:19:13.540
It fosters anger and so on.
1871
01:19:13.540 --> 01:19:14.603
It's a bad thing.
1872
01:19:16.360 --> 01:19:19.380
You don't have to feel as though you are kowtowing
1873
01:19:19.380 --> 01:19:22.804
to international opinion in order to remove symbols,
1874
01:19:22.804 --> 01:19:24.780
to alter symbols.
1875
01:19:24.780 --> 01:19:28.310
However, if you alter the symbol
1876
01:19:28.310 --> 01:19:30.840
and create a situation that in fact
1877
01:19:30.840 --> 01:19:33.640
has the appearance of legitimacy,
1878
01:19:33.640 --> 01:19:37.380
but in reality is worse, in the conditions they're in,
1879
01:19:37.380 --> 01:19:40.070
well then, all you've done is alter the symbol.
1880
01:19:40.070 --> 01:19:44.360
And in fact, the lives of the clients are our worse.
1881
01:19:44.360 --> 01:19:46.713
Well who who would advocate for that?
1882
01:19:46.713 --> 01:19:49.570
Then it's only purpose has been symbolic.
1883
01:19:49.570 --> 01:19:50.650
Then there's the move,
1884
01:19:50.650 --> 01:19:52.490
the only purpose of the move has been symbolic.
1885
01:19:52.490 --> 01:19:54.070
Well, I'm not into symbols.
1886
01:19:54.070 --> 01:19:55.820
I'm not in a sort of symbolic gestures.
1887
01:19:55.820 --> 01:19:58.200
That would be an empty hollow gesture.
1888
01:19:58.200 --> 01:20:00.600
It would take Guantanamo off their radar,
1889
01:20:00.600 --> 01:20:02.115
though wouldn't it?
It's already off the radar.
1890
01:20:02.115 --> 01:20:04.220
I mean, domestically,
1891
01:20:04.220 --> 01:20:06.143
I mean nobody pays attention to it anymore.
1892
01:20:08.310 --> 01:20:11.890
And did you expect Obama to close Guantanamo
1893
01:20:11.890 --> 01:20:13.370
when he was elected?
1894
01:20:13.370 --> 01:20:14.723
Did you think that?
1895
01:20:14.723 --> 01:20:17.600
Yeah, I did not foresee two things.
1896
01:20:17.600 --> 01:20:18.780
I did not foresee,
1897
01:20:18.780 --> 01:20:20.480
what people tend to forget,
1898
01:20:20.480 --> 01:20:24.453
is if you go back to late 2008, second half of 2008,
1899
01:20:26.220 --> 01:20:30.880
the bipartisan consensus in favor of closing Guantanamo,
1900
01:20:30.880 --> 01:20:34.350
people forget how deep that appeared.
1901
01:20:34.350 --> 01:20:36.690
Every, you know throughout the campaign,
1902
01:20:36.690 --> 01:20:38.013
every Republican candidate,
1903
01:20:38.013 --> 01:20:40.890
certainly every Democratic candidate,
1904
01:20:40.890 --> 01:20:42.040
favored closing Guantanamo.
1905
01:20:42.040 --> 01:20:43.920
The only one who didn't was Mitt Romney,
1906
01:20:43.920 --> 01:20:46.630
who's famously said, I wouldn't close it, I'd double it.
1907
01:20:46.630 --> 01:20:48.360
And everybody thought he was just a nut job
1908
01:20:48.360 --> 01:20:51.453
who was saying this for the sake of the Republican base,
1909
01:20:51.453 --> 01:20:55.180
the real radical right wing base.
1910
01:20:55.180 --> 01:20:56.290
That he couldn't really believe it either,
1911
01:20:56.290 --> 01:20:58.235
no one who was really smart could believe it.
1912
01:20:58.235 --> 01:21:00.870
Polling data showed that most people wanted
1913
01:21:00.870 --> 01:21:01.960
to have it closed.
1914
01:21:01.960 --> 01:21:05.320
Which is natural, I mean, if a cultural elite says
1915
01:21:05.320 --> 01:21:06.430
we should close it, we should close it,
1916
01:21:06.430 --> 01:21:07.263
we should close it,
1917
01:21:07.263 --> 01:21:09.383
Americans will think, oh yeah, we should close it.
1918
01:21:10.530 --> 01:21:15.167
I did not expect the backlash against the announcement
1919
01:21:18.000 --> 01:21:18.970
that Obama made.
1920
01:21:18.970 --> 01:21:20.460
Obama didn't either.
1921
01:21:20.460 --> 01:21:22.910
And what's worse, I didn't expect Obama
1922
01:21:22.910 --> 01:21:26.070
to retreat from his position so quickly.
1923
01:21:26.070 --> 01:21:30.050
I mean, as soon as he got push back, he just abandoned it
1924
01:21:30.050 --> 01:21:32.150
and he walked away from the one person
1925
01:21:32.150 --> 01:21:34.360
in his administration who was most behind it,
1926
01:21:34.360 --> 01:21:35.600
which was Greg Craig,
1927
01:21:35.600 --> 01:21:38.350
the White House Counsel who lost his job.
1928
01:21:38.350 --> 01:21:40.840
So he gave up the narrative,
1929
01:21:40.840 --> 01:21:42.830
and he's been paying the price ever since.
1930
01:21:42.830 --> 01:21:44.860
Why do you think he gave it up?
1931
01:21:44.860 --> 01:21:47.552
Democrats have been doing that since Truman.
1932
01:21:47.552 --> 01:21:52.552
They will allow national security judgements to be driven,
1933
01:21:53.960 --> 01:21:58.960
not by expert national security assessments,
1934
01:21:59.300 --> 01:22:03.130
but by perceived political weakness.
1935
01:22:03.130 --> 01:22:04.870
But couldn't he have seen that coming?
1936
01:22:04.870 --> 01:22:06.110
I mean--
He could've
1937
01:22:06.110 --> 01:22:07.000
and he should've,
1938
01:22:07.000 --> 01:22:10.550
but this is an assessment that Democrats have made
1939
01:22:11.540 --> 01:22:16.540
since Truman, that it is not in a Democrat's interests
1940
01:22:16.930 --> 01:22:19.010
to stake an aggressive claim
1941
01:22:19.010 --> 01:22:21.610
and try to shift the narrative on national security,
1942
01:22:23.520 --> 01:22:24.770
because that is a ground.
1943
01:22:24.770 --> 01:22:25.660
This is their assessment.
1944
01:22:25.660 --> 01:22:26.530
I'm not saying it's right,
1945
01:22:26.530 --> 01:22:28.440
I think in fact it's wrong.
1946
01:22:28.440 --> 01:22:31.260
But it is their assessment that doing so
1947
01:22:31.260 --> 01:22:33.040
plays into a Republican argument.
1948
01:22:33.040 --> 01:22:34.800
And they would say
1949
01:22:34.800 --> 01:22:37.800
they would say we were right, Joe,
1950
01:22:37.800 --> 01:22:39.890
because look national security is not an issue
1951
01:22:39.890 --> 01:22:41.490
for the American public anymore.
1952
01:22:43.340 --> 01:22:46.330
You know that, in my estimation, is a miscalculation,
1953
01:22:46.330 --> 01:22:51.293
because it is part of what has so enervated the left,
1954
01:22:53.396 --> 01:22:55.466
which was the group and young people.
1955
01:22:55.466 --> 01:22:58.226
It is one of the things that they feel,
1956
01:22:58.226 --> 01:22:59.820
well he's just a politician.
1957
01:22:59.820 --> 01:23:01.710
It turns out he's not a change agent after all.
1958
01:23:01.710 --> 01:23:03.310
He's just a guy.
1959
01:23:03.310 --> 01:23:04.150
I mean he was always just a guy,
1960
01:23:04.150 --> 01:23:06.500
and it was unfair to think that be more than just a guy,
1961
01:23:06.500 --> 01:23:10.580
but if he was aggressive about the same,
1962
01:23:10.580 --> 01:23:12.910
if he was aggressive about the narrative
1963
01:23:12.910 --> 01:23:15.363
that we thought he believed in,
1964
01:23:17.270 --> 01:23:19.550
A, he thinks it would turn the country against him.
1965
01:23:19.550 --> 01:23:20.450
He's mistaken.
1966
01:23:20.450 --> 01:23:21.283
That's the calculation they make,
1967
01:23:21.283 --> 01:23:22.150
but he's mistaken
1968
01:23:23.130 --> 01:23:25.180
and B he'd at least keep
1969
01:23:26.870 --> 01:23:30.793
what constitutes the left in the United States invigorated.
1970
01:23:32.020 --> 01:23:33.598
Did you know Greg Craig?
1971
01:23:33.598 --> 01:23:37.540
Did, so did he tell you that's why he got,
1972
01:23:37.540 --> 01:23:38.810
he lost his job?
1973
01:23:38.810 --> 01:23:39.643
No, no.
1974
01:23:39.643 --> 01:23:40.476
But it was obvious.
1975
01:23:40.476 --> 01:23:42.730
Greg really was our ally there.
1976
01:23:42.730 --> 01:23:45.200
He really did agree,
1977
01:23:45.200 --> 01:23:48.572
well he claims that Obama did too, really agreed with us.
1978
01:23:48.572 --> 01:23:50.023
And he went to bat for it.
1979
01:23:50.023 --> 01:23:52.380
I mean he drafted the executive orders
1980
01:23:52.380 --> 01:23:55.333
that were issued January 22nd.
1981
01:23:56.530 --> 01:23:58.410
And sending the Uyghurs to D.C.,
1982
01:23:58.410 --> 01:23:59.657
he was behind that too?
1983
01:24:00.603 --> 01:24:02.548
That I'm not sure of.
1984
01:24:02.548 --> 01:24:04.468
I don't remember whether that was,
1985
01:24:04.468 --> 01:24:06.929
I know that was a big deal within the administration,
1986
01:24:06.929 --> 01:24:08.240
but I'm not sure who.
1987
01:24:08.240 --> 01:24:11.330
So you're telling us
1988
01:24:11.330 --> 01:24:12.720
you're disappointed too?
1989
01:24:12.720 --> 01:24:14.550
Sure.
We are and
1990
01:24:17.760 --> 01:24:20.270
how do you see, how do you see it going forward?
1991
01:24:20.270 --> 01:24:21.103
Do you think
1992
01:24:22.910 --> 01:24:24.370
it'll change at all?
1993
01:24:24.370 --> 01:24:27.570
Or you think this will just remain
1994
01:24:27.570 --> 01:24:29.240
foreseeable future if everybody's afraid
1995
01:24:29.240 --> 01:24:31.410
of national security issues, they just won't touch it.
1996
01:24:31.410 --> 01:24:33.390
So what you're really asking me there,
1997
01:24:33.390 --> 01:24:36.670
it seems to me is when will the war on terror end?
1998
01:24:36.670 --> 01:24:39.606
And I'll tell you what I think,
1999
01:24:39.606 --> 01:24:43.293
which you know that and 3 1/4 will get you a latte.
2000
01:24:45.600 --> 01:24:46.790
It will end when
2001
01:24:48.460 --> 01:24:50.420
we turn our attention
2002
01:24:50.420 --> 01:24:53.523
and start to and feel a need to demonize China.
2003
01:24:55.580 --> 01:24:58.620
There's only room for one worst of the worst.
2004
01:24:58.620 --> 01:25:00.270
And if China becomes the worst of the worst,
2005
01:25:00.270 --> 01:25:01.861
then for instance, we'll say,
2006
01:25:01.861 --> 01:25:03.990
well you know it's godless communism after all.
2007
01:25:03.990 --> 01:25:05.980
And we'll suddenly remember that
2008
01:25:07.320 --> 01:25:09.360
Islam is an Abrahamic religion,
2009
01:25:09.360 --> 01:25:11.210
and you know, they're really just like us.
2010
01:25:11.210 --> 01:25:13.370
They're not like those godless communists.
2011
01:25:13.370 --> 01:25:15.383
So then we'll find somebody else to demonize.
2012
01:25:16.760 --> 01:25:20.289
Looking back at your last 10 years, Joe,
2013
01:25:20.289 --> 01:25:23.040
how would you feel like you're glad,
2014
01:25:23.040 --> 01:25:24.810
even though some of it has been very disappointing,
2015
01:25:24.810 --> 01:25:26.333
some have been successful?
2016
01:25:27.610 --> 01:25:29.290
How does it feel in your life
2017
01:25:29.290 --> 01:25:32.954
in terms of how you look at your life with that period
2018
01:25:32.954 --> 01:25:35.503
compared to the work you were doing before?
2019
01:25:36.764 --> 01:25:37.597
Huh?
2020
01:25:46.994 --> 01:25:50.040
When I was younger, when I was a young lawyer,
2021
01:25:50.040 --> 01:25:51.500
I used to say that I'm not a person
2022
01:25:51.500 --> 01:25:54.730
who deals much in regrets.
2023
01:25:54.730 --> 01:25:57.730
I just, you know, one makes one's decisions and you move on.
2024
01:25:58.600 --> 01:26:00.260
I no longer say that.
2025
01:26:00.260 --> 01:26:05.204
I now say that I feel filled with regret,
2026
01:26:05.204 --> 01:26:08.500
and the greatest regret in my life is becoming a lawyer,
2027
01:26:08.500 --> 01:26:10.100
my greatest professional regret.
2028
01:26:13.640 --> 01:26:16.490
I don't, I think we made mistakes in Rasul,
2029
01:26:16.490 --> 01:26:17.570
or not just Rasul,
2030
01:26:17.570 --> 01:26:20.960
but all the post 9/11 litigation, we made mistakes.
2031
01:26:20.960 --> 01:26:22.818
The case was litigated pretty well
2032
01:26:22.818 --> 01:26:26.320
and you know, we won and that's not how you measure it.
2033
01:26:26.320 --> 01:26:28.360
If you do progressive work, you win, you lose
2034
01:26:28.360 --> 01:26:31.789
has nothing to do really with whether you litigate well.
2035
01:26:31.789 --> 01:26:33.740
The cases aren't decided on those levels,
2036
01:26:33.740 --> 01:26:35.590
they're decided on a political level.
2037
01:26:38.370 --> 01:26:39.913
We made strategic mistakes.
2038
01:26:42.860 --> 01:26:45.190
I regret that we...
2039
01:26:47.130 --> 01:26:47.963
The way that,
2040
01:26:47.963 --> 01:26:52.030
the book that will be written about Rasul eventually
2041
01:26:52.030 --> 01:26:55.051
is this is an example of the rule of law triumphing
2042
01:26:55.051 --> 01:26:59.729
and this is an example of us not losing our way
2043
01:26:59.729 --> 01:27:01.930
in a moment of crisis.
2044
01:27:01.930 --> 01:27:04.620
This is how it's supposed to work
2045
01:27:04.620 --> 01:27:08.350
and, you know, all honor to the Supreme Court for doing this
2046
01:27:08.350 --> 01:27:10.890
and doing Hamdi and doing Hamdan and Boumediene
2047
01:27:10.890 --> 01:27:13.070
and you know, this is a much more...
2048
01:27:13.070 --> 01:27:15.313
And so you are,
2049
01:27:16.670 --> 01:27:19.400
the case is appropriated
2050
01:27:19.400 --> 01:27:22.203
and made into this myth,
2051
01:27:23.690 --> 01:27:25.433
which is a lie.
2052
01:27:27.710 --> 01:27:32.710
And I regret not being able to make plain
2053
01:27:35.680 --> 01:27:40.680
that if the real objective of this litigation was,
2054
01:27:40.727 --> 01:27:42.060
and this was the objective,
2055
01:27:42.060 --> 01:27:47.060
to act as a meaningful restraint on executive power,
2056
01:27:47.320 --> 01:27:52.320
to prevent abuse by the executive
2057
01:27:53.710 --> 01:27:56.983
of the most vulnerable in society,
2058
01:27:58.430 --> 01:28:00.840
in that we have affected no change at all.
2059
01:28:00.840 --> 01:28:02.480
In fact, there are no restraints
2060
01:28:02.480 --> 01:28:03.830
on what the government does.
2061
01:28:03.830 --> 01:28:05.345
You don't want to hold 'em at Guantanamo,
2062
01:28:05.345 --> 01:28:06.480
you hold 'em at Bagram.
2063
01:28:06.480 --> 01:28:07.313
You don't wanna hold 'em at Bagram,
2064
01:28:07.313 --> 01:28:09.257
you hold 'em at a secret site in Somalia.
2065
01:28:11.040 --> 01:28:15.620
Our ability to use the law
2066
01:28:15.620 --> 01:28:17.670
and the symbols of the law,
2067
01:28:17.670 --> 01:28:20.161
the Supreme Court, the Constitution,
2068
01:28:20.161 --> 01:28:21.230
these are just symbols,
2069
01:28:21.230 --> 01:28:26.033
to act as effective barriers against the,
2070
01:28:26.930 --> 01:28:31.703
an overzealous executive, has been a complete failure.
2071
01:28:32.694 --> 01:28:36.280
And the only thing that keeps it from getting,
2072
01:28:36.280 --> 01:28:37.760
going back the way it was is,
2073
01:28:37.760 --> 01:28:40.660
you know we have a President who declares that he's,
2074
01:28:40.660 --> 01:28:44.030
he won't let it, as a matter of personal grace.
2075
01:28:44.030 --> 01:28:45.870
But he ain't gonna be there.
2076
01:28:45.870 --> 01:28:48.468
And who knows what in fact he's doing.
2077
01:28:48.468 --> 01:28:50.930
So it's a, so...
2078
01:28:56.310 --> 01:28:59.552
You know, it would be uncharitable to say
2079
01:28:59.552 --> 01:29:01.650
the last 10 years has been waste.
2080
01:29:01.650 --> 01:29:03.130
The last 10 years...
2081
01:29:03.130 --> 01:29:05.690
I mean, I've, this is something that I,
2082
01:29:05.690 --> 01:29:06.813
again it will sound self-aggrandizing,
2083
01:29:06.813 --> 01:29:08.313
it's not meant to be that way.
2084
01:29:09.440 --> 01:29:14.440
I have been continually involved in this work,
2085
01:29:15.110 --> 01:29:17.950
the post 9/11 detention challenges,
2086
01:29:17.950 --> 01:29:19.790
longer than any lawyer in the country,
2087
01:29:19.790 --> 01:29:21.350
longer than any lawyer in the world,
2088
01:29:21.350 --> 01:29:22.300
'cause there was an extended period
2089
01:29:22.300 --> 01:29:23.580
where Clive wasn't involved,
2090
01:29:23.580 --> 01:29:25.270
and Michael's no longer really involved,
2091
01:29:25.270 --> 01:29:27.010
and Steve Watt is involved in other stuff now.
2092
01:29:27.010 --> 01:29:28.113
So the core,
2093
01:29:30.630 --> 01:29:32.370
Clive's still involved now,
2094
01:29:32.370 --> 01:29:35.523
but there was a period where, so uninterrupted period.
2095
01:29:36.500 --> 01:29:40.003
And it has,
2096
01:29:41.340 --> 01:29:43.240
what the sociologists would call,
2097
01:29:43.240 --> 01:29:44.300
it has given me a certain amount
2098
01:29:44.300 --> 01:29:47.000
of reputational capital, right?
2099
01:29:47.000 --> 01:29:48.820
People call me up and they call me professor
2100
01:29:48.820 --> 01:29:51.520
and I publish things in the Los Angeles Times.
2101
01:29:51.520 --> 01:29:56.170
And I have my position as a result of it.
2102
01:29:56.170 --> 01:29:57.647
I'm not, you know,
2103
01:29:58.742 --> 01:30:00.250
a criminal defense lawyer in private practice
2104
01:30:00.250 --> 01:30:02.073
and blah, blah, blah.
2105
01:30:02.073 --> 01:30:04.540
And I published a book with this press and that press
2106
01:30:04.540 --> 01:30:07.020
and so yada yada, yada, those things,
2107
01:30:07.020 --> 01:30:09.441
there's no question that, you know,
2108
01:30:09.441 --> 01:30:11.890
there is a certain fraction of society who thinks,
2109
01:30:11.890 --> 01:30:15.060
well, you know, good for you and honors bestowed upon you.
2110
01:30:15.060 --> 01:30:18.760
And I would be wrong, that's all personal however,
2111
01:30:18.760 --> 01:30:20.900
And it's obviously silly to say,
2112
01:30:20.900 --> 01:30:23.863
you know it has no value to me, and it has no effect.
2113
01:30:25.820 --> 01:30:27.710
It's why you're taking the time to interview me now,
2114
01:30:27.710 --> 01:30:28.800
because you think there's something
2115
01:30:28.800 --> 01:30:30.233
worth memorializing there.
2116
01:30:32.130 --> 01:30:34.860
But did we do any good?
2117
01:30:34.860 --> 01:30:36.673
No, I don't think so.
2118
01:30:38.520 --> 01:30:41.000
Well, if you hadn't been there
2119
01:30:41.000 --> 01:30:44.840
and these cases weren't decided in this direction,
2120
01:30:44.840 --> 01:30:46.450
would things have been worse?
2121
01:30:46.450 --> 01:30:47.283
Good question.
2122
01:30:47.283 --> 01:30:48.116
Hard to know.
2123
01:30:49.350 --> 01:30:52.220
You know as a result of Rasul,
2124
01:30:52.220 --> 01:30:53.880
you can sort of set in motion
2125
01:30:53.880 --> 01:30:57.836
one of those Rube Goldberg chain of events,
2126
01:30:57.836 --> 01:31:01.380
you know like an exam and a tort question.
2127
01:31:01.380 --> 01:31:03.170
You know the brick falls from the ceiling
2128
01:31:03.170 --> 01:31:04.080
and lands on a guy's foot
2129
01:31:04.080 --> 01:31:07.063
and he throws a hot pallet under somebody else's nose.
2130
01:31:09.130 --> 01:31:11.350
So Rasul allows people to go to the base,
2131
01:31:11.350 --> 01:31:13.059
allows people to litigate.
2132
01:31:13.059 --> 01:31:15.210
It is part of the political pressure
2133
01:31:15.210 --> 01:31:17.470
that leads to some people being released.
2134
01:31:17.470 --> 01:31:22.330
It is part of the narrative of abuse of presidential power
2135
01:31:22.330 --> 01:31:24.920
that was associated with the, you know,
2136
01:31:27.700 --> 01:31:32.420
the period from about 2000, mid-2002, late 2002,
2137
01:31:32.420 --> 01:31:34.700
accelerating, growing until about 2008.
2138
01:31:34.700 --> 01:31:36.990
That was an important period in U.S. history
2139
01:31:36.990 --> 01:31:39.000
and Rasul is a part of that.
2140
01:31:39.000 --> 01:31:42.320
And all the detention work that came out is a part of that.
2141
01:31:42.320 --> 01:31:44.130
And some people are home,
2142
01:31:44.130 --> 01:31:47.460
both as a matter of the legal decision,
2143
01:31:47.460 --> 01:31:49.460
that is a judge said, send this man home
2144
01:31:49.460 --> 01:31:52.024
or as a matter of the political pressure.
2145
01:31:52.024 --> 01:31:54.959
The administration feels a need to reform the practices
2146
01:31:54.959 --> 01:31:56.673
and so releases people.
2147
01:31:58.410 --> 01:32:02.270
How much of that would have happened without Rasul?
2148
01:32:02.270 --> 01:32:03.860
Hard to know.
2149
01:32:03.860 --> 01:32:06.560
Because it was a much bigger thing than just one case.
2150
01:32:06.560 --> 01:32:08.973
What, again, don't think like a lawyer,
2151
01:32:10.440 --> 01:32:11.963
as a political matter,
2152
01:32:11.963 --> 01:32:14.050
that is what is it that shrinks
2153
01:32:14.050 --> 01:32:17.723
the amount of political capital the Bush administration has?
2154
01:32:18.670 --> 01:32:21.300
Hurricane Katrina is as important
2155
01:32:21.300 --> 01:32:23.940
as the decision in Hamdan, right?
2156
01:32:23.940 --> 01:32:26.930
It blackens the eye of the Bush administration
2157
01:32:26.930 --> 01:32:29.330
and it gives them less space to move
2158
01:32:29.330 --> 01:32:32.550
and therefore they are less able to resist
2159
01:32:32.550 --> 01:32:34.820
political pressures in one,
2160
01:32:34.820 --> 01:32:36.930
coming from one quarter or another.
2161
01:32:36.930 --> 01:32:40.420
So it diminishes the political stability
2162
01:32:40.420 --> 01:32:41.773
of the Bush administration.
2163
01:32:42.720 --> 01:32:45.280
You know, the economic crisis that starts in the beginning
2164
01:32:45.280 --> 01:32:48.310
of 2008 has some of that same effect, right?
2165
01:32:48.310 --> 01:32:50.710
It creates a sense that, you know,
2166
01:32:50.710 --> 01:32:51.867
outta here with this guy,
2167
01:32:51.867 --> 01:32:53.550
and you don't wanna hear anything about him
2168
01:32:53.550 --> 01:32:54.420
you don't wanna hear anything he says,
2169
01:32:54.420 --> 01:32:56.030
and don't talk to me one more word
2170
01:32:56.030 --> 01:32:57.880
about the unitary executive.
2171
01:32:57.880 --> 01:32:59.700
That's what got us in this mess.
2172
01:32:59.700 --> 01:33:02.030
Well you know, is that related to Rasul?
2173
01:33:02.030 --> 01:33:05.240
Yes, in kind of, you know, (speaking in foreign language)
2174
01:33:05.240 --> 01:33:10.240
it's this sort of global sense that he's just not for us.
2175
01:33:10.520 --> 01:33:12.210
And that has the inevitable fact
2176
01:33:12.210 --> 01:33:15.860
that when a country like, you know,
2177
01:33:15.860 --> 01:33:17.190
Indonesia comes and says,
2178
01:33:17.190 --> 01:33:18.767
you know what you really outta release our guys,
2179
01:33:18.767 --> 01:33:20.860
cause we're sick of it too,
2180
01:33:20.860 --> 01:33:23.520
finally they say, okay, you guys can go home.
2181
01:33:23.520 --> 01:33:26.010
So, can Rasul take credit?
2182
01:33:26.010 --> 01:33:29.620
No, it's part of as a sociological matter,
2183
01:33:29.620 --> 01:33:31.270
as a political science matter,
2184
01:33:31.270 --> 01:33:33.040
don't think of it as lawyers,
2185
01:33:33.040 --> 01:33:36.320
think of it as what effects political reality.
2186
01:33:36.320 --> 01:33:37.380
Does it contribute? Yes.
2187
01:33:37.380 --> 01:33:38.300
Is it dispositive?
2188
01:33:38.300 --> 01:33:39.740
Nothing's dispositive.
2189
01:33:39.740 --> 01:33:41.430
What's the straw that broke the camel's back?
2190
01:33:41.430 --> 01:33:44.820
Is that, can therefore you say this straw
2191
01:33:44.820 --> 01:33:45.670
is that makes all the difference.
2192
01:33:45.670 --> 01:33:46.890
Well, what about the 62 million
2193
01:33:46.890 --> 01:33:48.463
that were put on there beforehand?
2194
01:33:49.540 --> 01:33:51.783
Where's this?
We're at 10 minutes on time.
2195
01:33:51.783 --> 01:33:55.179
Where is the strategic mistakes
2196
01:33:55.179 --> 01:33:57.130
that you made?
2197
01:33:57.130 --> 01:33:58.880
I don't know that you wanna go into in great detail,
2198
01:33:58.880 --> 01:34:01.070
but you said you made some strategic mistakes.
2199
01:34:01.070 --> 01:34:03.380
We did foresee the resilience
2200
01:34:03.380 --> 01:34:07.880
of the administration's policies,
2201
01:34:07.880 --> 01:34:10.010
the way it would morph and the prison would change
2202
01:34:10.010 --> 01:34:11.710
into a long-term detention center.
2203
01:34:12.551 --> 01:34:13.384
So that was one problem.
2204
01:34:13.384 --> 01:34:18.290
We didn't foresee the way it would become,
2205
01:34:18.290 --> 01:34:20.300
we didn't foresee the way the Obama administration
2206
01:34:20.300 --> 01:34:25.300
would retreat from its view and back off of its narrative.
2207
01:34:26.610 --> 01:34:28.611
And so we thought having won the election now
2208
01:34:28.611 --> 01:34:31.520
we'd reaped the benefits.
2209
01:34:31.520 --> 01:34:33.310
That's an old miscalculation, by the way.
2210
01:34:33.310 --> 01:34:35.140
I mean, it happened on the left and the right.
2211
01:34:35.140 --> 01:34:36.210
You know the Christian right
2212
01:34:36.210 --> 01:34:38.060
was very disappointed with Reagan.
2213
01:34:38.060 --> 01:34:39.960
So maybe we're no different than them.
2214
01:34:42.353 --> 01:34:47.200
And we didn't work hard enough
2215
01:34:47.200 --> 01:34:52.173
to make sure the President maintained that narrative after,
2216
01:34:53.040 --> 01:34:54.881
or lay the groundwork for the narrative
2217
01:34:54.881 --> 01:34:59.881
before the January 22nd orders, executive orders.
2218
01:35:00.840 --> 01:35:02.900
Now, maybe we never could have stopped it,
2219
01:35:02.900 --> 01:35:04.682
that this is how he was gonna be.
2220
01:35:04.682 --> 01:35:07.163
I mean it seems to me his philosophy,
2221
01:35:07.163 --> 01:35:10.330
for much of the first term of his office has been,
2222
01:35:10.330 --> 01:35:12.170
you know never kick a Republican
2223
01:35:12.170 --> 01:35:14.420
who's within reach of a microphone.
2224
01:35:14.420 --> 01:35:17.370
And that's, if that's his philosophy,
2225
01:35:17.370 --> 01:35:19.280
then you know, there's nothing,
2226
01:35:19.280 --> 01:35:20.990
so, okay fine then,
2227
01:35:22.520 --> 01:35:24.059
there's nothing we can do.
2228
01:35:24.059 --> 01:35:26.080
You know, Johnny let me change the record.
2229
01:35:26.080 --> 01:35:27.360
I only have a few more minutes,
2230
01:35:27.360 --> 01:35:29.740
but if he's running out of time.
2231
01:35:29.740 --> 01:35:34.740
So when you said that you regret being a lawyer
2232
01:35:35.479 --> 01:35:37.910
what exactly would you have done
2233
01:35:37.910 --> 01:35:41.360
that would've been more perhaps successful or what--
2234
01:35:41.360 --> 01:35:42.193
Well, I don't know what successful is,
2235
01:35:42.193 --> 01:35:44.380
and I wouldn't describe what I do now as successful,
2236
01:35:44.380 --> 01:35:48.162
but I might've been happier.
Okay.
2237
01:35:48.162 --> 01:35:50.591
And I wish I had been an historian.
2238
01:35:50.591 --> 01:35:53.727
I was a history student in school,
2239
01:35:53.727 --> 01:35:56.763
and I wish I had had the courage to go on and get my PhD.
2240
01:35:58.469 --> 01:36:00.793
But, you know, everybody knows that
2241
01:36:00.793 --> 01:36:05.793
there's a lot of PhDs who are working as waiters
2242
01:36:06.140 --> 01:36:09.220
and cab drivers and lawyers can get a job.
2243
01:36:09.220 --> 01:36:11.350
So I took the path of least resistance
2244
01:36:11.350 --> 01:36:13.227
and went to law school.
2245
01:36:13.227 --> 01:36:15.400
I think I know how you'll answer this Joe,
2246
01:36:15.400 --> 01:36:17.190
but I need to ask it.
2247
01:36:17.190 --> 01:36:19.430
Don't you think you made a difference that you
2248
01:36:19.430 --> 01:36:21.483
wouldn't have made as a historian?
2249
01:36:22.380 --> 01:36:23.213
No.
2250
01:36:24.300 --> 01:36:26.461
Look, I...
2251
01:36:26.461 --> 01:36:30.180
There's no way people hear this knowing
2252
01:36:30.180 --> 01:36:32.150
what they think they know about my career,
2253
01:36:32.150 --> 01:36:33.920
without thinking that it's false modesty.
2254
01:36:33.920 --> 01:36:35.333
I understand that, I get it.
2255
01:36:37.325 --> 01:36:39.620
And the likelihood is even if I were,
2256
01:36:39.620 --> 01:36:41.863
you know a successful academic,
2257
01:36:41.863 --> 01:36:46.610
that I would be anonymous, completely, utterly anonymous.
2258
01:36:46.610 --> 01:36:49.640
In fact, for the overwhelming majority of people
2259
01:36:49.640 --> 01:36:51.030
I'm anonymous anyway
2260
01:36:52.290 --> 01:36:55.410
I think that I have done some good for some people
2261
01:36:55.410 --> 01:36:56.810
as a criminal defense lawyer.
2262
01:36:56.810 --> 01:36:59.072
You know, you get the occasional acquittal
2263
01:36:59.072 --> 01:37:00.970
or you get a better negotiation
2264
01:37:00.970 --> 01:37:02.663
than you otherwise would have gotten.
2265
01:37:04.310 --> 01:37:07.262
But I, you know, in the big arc of history
2266
01:37:07.262 --> 01:37:09.694
and don't ask me whether it, you know,
2267
01:37:09.694 --> 01:37:12.620
bends towards justice, I'm not convinced of that.
2268
01:37:13.710 --> 01:37:16.100
Have I made a difference?
2269
01:37:16.100 --> 01:37:16.933
That's silly.
2270
01:37:18.800 --> 01:37:21.080
Did Boumediene make a difference
2271
01:37:21.080 --> 01:37:23.133
for constitutional law?
2272
01:37:24.173 --> 01:37:25.540
Well yeah.
2273
01:37:25.540 --> 01:37:27.940
I mean, you know, this Boumediene finally establishes
2274
01:37:27.940 --> 01:37:31.823
the proposition that okay, we know what,
2275
01:37:33.290 --> 01:37:37.520
we know a little bit more about the writ of habeas corpus
2276
01:37:37.520 --> 01:37:39.620
and the reach of the writ.
2277
01:37:39.620 --> 01:37:41.360
We'd never had an occasion to say,
2278
01:37:41.360 --> 01:37:45.333
this is unlawful suspension of the writ before.
2279
01:37:45.333 --> 01:37:47.210
And these guys are entitled to it
2280
01:37:47.210 --> 01:37:49.030
and you have violated the Constitution
2281
01:37:49.030 --> 01:37:50.940
in removing the writ from,
2282
01:37:50.940 --> 01:37:54.310
removing their right to challenge their detention.
2283
01:37:54.310 --> 01:37:55.850
I mean you might have been involved
2284
01:37:55.850 --> 01:37:57.619
in the litigation, but we'd never know if you were.
2285
01:37:57.619 --> 01:37:58.950
I was.
You were.
2286
01:37:58.950 --> 01:38:00.990
But Rasul led to Boumediene.
2287
01:38:00.990 --> 01:38:01.823
It was and--
2288
01:38:01.823 --> 01:38:04.431
Boumediene won because we won Rasul.
2289
01:38:04.431 --> 01:38:07.100
But because of that, couldn't you,
2290
01:38:07.100 --> 01:38:09.387
couldn't you say that now there's a
2291
01:38:09.387 --> 01:38:12.714
piece of our history, our law that--
2292
01:38:12.714 --> 01:38:17.230
So there's a great...
2293
01:38:19.230 --> 01:38:21.980
Michael Klarman is a great scholar
2294
01:38:21.980 --> 01:38:25.980
and he is a scholar of, you know,
2295
01:38:25.980 --> 01:38:30.470
latter 20th century America, and also a law professor,
2296
01:38:30.470 --> 01:38:32.137
and writes an awful lot about
2297
01:38:32.137 --> 01:38:33.758
you know sort of the Civil Rights Movement.
2298
01:38:33.758 --> 01:38:35.900
And evidently he's writing a book,
2299
01:38:35.900 --> 01:38:37.713
I hear this second hand,
2300
01:38:39.380 --> 01:38:44.380
on great cases that triggered massive backlash,
2301
01:38:47.220 --> 01:38:50.570
which has produced an entire subgenre of literature
2302
01:38:50.570 --> 01:38:53.340
about whether these cases were a good idea.
2303
01:38:53.340 --> 01:38:54.830
And the cases I think he's analyzing
2304
01:38:54.830 --> 01:38:59.830
are Brown V. Board, Roe V. Wade, Miranda versus Arizona,
2305
01:39:00.600 --> 01:39:02.440
and a fourth one, I can't remember.
2306
01:39:02.440 --> 01:39:04.330
Might have been Furman versus Georgia.
2307
01:39:04.330 --> 01:39:06.027
I think those are the four.
2308
01:39:09.810 --> 01:39:10.940
So...
2309
01:39:16.839 --> 01:39:19.172
If you think not in terms of
2310
01:39:24.260 --> 01:39:25.920
winning a case,
2311
01:39:25.920 --> 01:39:30.113
but in terms of changing a practice,
2312
01:39:33.130 --> 01:39:37.283
what is the place of these four cases?
2313
01:39:40.270 --> 01:39:43.130
And I, those are very difficult questions.
2314
01:39:43.130 --> 01:39:45.350
Those are very difficult questions.
2315
01:39:45.350 --> 01:39:47.017
There are a lotta people who say that Brown V. Board
2316
01:39:47.017 --> 01:39:48.724
was a bad idea.
2317
01:39:48.724 --> 01:39:51.523
And you'd put Boumediene in that selective,
2318
01:39:51.523 --> 01:39:52.995
it sounds like.
2319
01:39:52.995 --> 01:39:56.913
You know, I, it's hard.
2320
01:39:59.140 --> 01:40:02.400
You know, Jackson in his famous dissent in Korematsu
2321
01:40:02.400 --> 01:40:04.440
says essentially, why did you do this?
2322
01:40:04.440 --> 01:40:06.160
Why did you bring this case to us?
2323
01:40:06.160 --> 01:40:08.580
Because you do this, we're gonna screw it up.
2324
01:40:08.580 --> 01:40:11.520
And then it's the decision we come down with,
2325
01:40:11.520 --> 01:40:13.760
is gonna lay around like a loaded weapon.
2326
01:40:13.760 --> 01:40:15.740
And it's, and the next President that comes along,
2327
01:40:15.740 --> 01:40:17.350
is gonna be able to use that decision.
2328
01:40:17.350 --> 01:40:19.300
And the practice that you're challenging,
2329
01:40:19.300 --> 01:40:20.920
it woulda gone away by itself.
2330
01:40:20.920 --> 01:40:22.290
So stop it.
2331
01:40:22.290 --> 01:40:23.330
Don't come to us.
2332
01:40:23.330 --> 01:40:24.500
That's what he says.
2333
01:40:24.500 --> 01:40:25.430
Okay, fine.
2334
01:40:25.430 --> 01:40:28.200
Well, what are you gonna do if you're Korematsu's lawyer?
2335
01:40:28.200 --> 01:40:29.299
What are you gonna do,
2336
01:40:29.299 --> 01:40:30.160
you go to Fred and you gonna say, you know, Fred,
2337
01:40:30.160 --> 01:40:31.460
I'm sorry but I can't challenge this
2338
01:40:31.460 --> 01:40:34.540
because Justice Jackson says you just gotta live with it,
2339
01:40:34.540 --> 01:40:36.090
'cause it'll go away by itself.
2340
01:40:36.960 --> 01:40:38.524
How the heck does Fred know
2341
01:40:38.524 --> 01:40:40.170
that it's gonna go away by itself?
2342
01:40:40.170 --> 01:40:41.380
So I don't think we had a choice.
2343
01:40:41.380 --> 01:40:44.370
I think we had to do what we had to do in Rasul.
2344
01:40:44.370 --> 01:40:47.174
I think they had to do what they did in Boumediene.
2345
01:40:47.174 --> 01:40:49.760
And when I say Boumediene won because of Rasul,
2346
01:40:49.760 --> 01:40:50.593
that's obviously not true,
2347
01:40:50.593 --> 01:40:52.530
but Boumediene, had Rasul lost,
2348
01:40:52.530 --> 01:40:53.980
there would have been no Boumediene.
2349
01:40:53.980 --> 01:40:56.624
And had Rasul been decided differently,
2350
01:40:56.624 --> 01:40:59.864
Boumediene would have probably come out.
2351
01:40:59.864 --> 01:41:01.600
You know, but Boumediene is the culmination
2352
01:41:01.600 --> 01:41:02.433
of not just Rasul,
2353
01:41:02.433 --> 01:41:03.360
but a lot of things that happen.
2354
01:41:03.360 --> 01:41:05.113
By the time, Boumediene's 2008,
2355
01:41:07.290 --> 01:41:11.233
you know that's the high water mark for our narrative.
2356
01:41:13.450 --> 01:41:15.140
So it's a culmination of...
2357
01:41:17.740 --> 01:41:22.330
But it's, I believe that it's wrong to view
2358
01:41:22.330 --> 01:41:26.530
a legal decision, a Supreme Court decision
2359
01:41:26.530 --> 01:41:31.530
as something that can have this kind of effect.
2360
01:41:32.990 --> 01:41:35.273
That's just not the way....
2361
01:41:38.577 --> 01:41:39.540
You know what that does?
2362
01:41:39.540 --> 01:41:42.590
It's lawyers saying, oh God, boy law is so important,
2363
01:41:42.590 --> 01:41:45.060
man oh man, law is important, whoa.
2364
01:41:45.060 --> 01:41:47.162
And not only that, but the Supreme Court, yeah,
2365
01:41:47.162 --> 01:41:49.080
all hail to the Supreme Court.
2366
01:41:49.080 --> 01:41:50.640
Well, that's just stupid.
2367
01:41:50.640 --> 01:41:51.473
It's just not true.
2368
01:41:51.473 --> 01:41:53.090
It's not reality.
2369
01:41:53.090 --> 01:41:54.833
And every sociologist knows it.
2370
01:41:56.970 --> 01:41:58.490
Well, we could have this discussion
2371
01:41:58.490 --> 01:41:59.760
ad infinitum I'm sure,
2372
01:41:59.760 --> 01:42:00.960
but I think it's really important
2373
01:42:00.960 --> 01:42:02.300
for people to hear what you're saying.
2374
01:42:02.300 --> 01:42:04.230
I think people would also feel that
2375
01:42:05.840 --> 01:42:07.460
objectively you did make a difference,
2376
01:42:07.460 --> 01:42:08.880
your group did make a difference,
2377
01:42:08.880 --> 01:42:12.530
'cause the fact is it did move law forward
2378
01:42:12.530 --> 01:42:16.170
and it did release some men from Guantanamo.
2379
01:42:16.170 --> 01:42:17.893
Yeah, right.
2380
01:42:18.960 --> 01:42:22.433
It also entrenches the idea that law is responsive,
2381
01:42:22.433 --> 01:42:24.253
and law isn't responsive.
2382
01:42:25.402 --> 01:42:27.960
You know, I mean the Marxists would say
2383
01:42:27.960 --> 01:42:29.509
it's a false consciousness.
2384
01:42:29.509 --> 01:42:33.760
The Chomsky would say, and I'm not a Marxist.
2385
01:42:33.760 --> 01:42:35.599
But Chomsky would say,
2386
01:42:35.599 --> 01:42:37.350
you know the system's gotta let some people win
2387
01:42:38.210 --> 01:42:39.820
or otherwise it's completely illegitimate,
2388
01:42:39.820 --> 01:42:40.660
everybody will see it.
2389
01:42:40.660 --> 01:42:43.730
It maintains its legitimacy by letting a few people,
2390
01:42:43.730 --> 01:42:45.880
you know, I mean, casinos gotta to let somebody win.
2391
01:42:45.880 --> 01:42:47.737
Somebody's gotta pull this and it's gotta have three sevens.
2392
01:42:47.737 --> 01:42:50.200
Hey, hey, I won, it's a good system.
2393
01:42:50.200 --> 01:42:51.290
If everybody lost all the time,
2394
01:42:51.290 --> 01:42:53.040
people would stop going to casinos.
2395
01:42:55.020 --> 01:42:56.938
Well, I hope your cynicism
2396
01:42:56.938 --> 01:42:59.370
doesn't necessarily--
Cynic, you know,
2397
01:42:59.370 --> 01:43:00.960
if I were a cynic,
2398
01:43:00.960 --> 01:43:02.680
if I were really, really a cynic,
2399
01:43:02.680 --> 01:43:05.760
I wouldn't keep doing what I do, but here I am.
2400
01:43:05.760 --> 01:43:07.270
You know there's still another tree
2401
01:43:07.270 --> 01:43:09.030
that I can bash my head against.
2402
01:43:09.030 --> 01:43:10.680
And will it be another detainee
2403
01:43:10.680 --> 01:43:12.450
that you would support
2404
01:43:12.450 --> 01:43:14.340
or do you think this--
2405
01:43:14.340 --> 01:43:15.890
So if Zubaydah were released?
2406
01:43:18.810 --> 01:43:20.070
I don't know, that's a good question.
2407
01:43:20.070 --> 01:43:21.910
Let's get Zubaydah out first.
2408
01:43:21.910 --> 01:43:22.753
One thing at a time.
Okay, good.
2409
01:43:25.160 --> 01:43:26.650
Are there questions I missed Joe?
2410
01:43:26.650 --> 01:43:28.490
Is there something that you feel important
2411
01:43:28.490 --> 01:43:31.140
since you're a historian in your heart
2412
01:43:31.140 --> 01:43:33.990
and your soul that you'd like to share with
2413
01:43:35.070 --> 01:43:36.833
people 50 years from now?
2414
01:43:38.770 --> 01:43:40.950
Very curious to know how people look back
2415
01:43:40.950 --> 01:43:42.310
on this period of 50 years from now.
2416
01:43:42.310 --> 01:43:43.780
We shall see.
2417
01:43:43.780 --> 01:43:45.340
But, no.
You think it'll
2418
01:43:45.340 --> 01:43:46.760
be like looking back,
2419
01:43:46.760 --> 01:43:50.440
it took that long for the Japanese internment
2420
01:43:50.440 --> 01:43:53.540
to at least be, people apologize?
2421
01:43:53.540 --> 01:43:55.770
Do you think it'll take that long for us
2422
01:43:55.770 --> 01:43:58.473
to apologize for what happened, if anyone ever does?
2423
01:44:02.620 --> 01:44:06.740
I think it will eventually get integrated
2424
01:44:08.100 --> 01:44:10.870
into this myth of,
2425
01:44:10.870 --> 01:44:13.650
I call it, the myth of deviation and redemption.
2426
01:44:13.650 --> 01:44:16.020
The myth of deviation and redemption is
2427
01:44:16.020 --> 01:44:20.410
society is basically on this liberal trajectory
2428
01:44:20.410 --> 01:44:22.030
of greater and greater rights,
2429
01:44:22.030 --> 01:44:23.580
and greater and greater justice.
2430
01:44:23.580 --> 01:44:25.610
You know, it's the more perfect union.
2431
01:44:25.610 --> 01:44:27.201
Ours is the only constitution that aspires to
2432
01:44:27.201 --> 01:44:29.390
a more perfect union.
2433
01:44:29.390 --> 01:44:32.225
We're already perfect, but we're gonna get more perfect.
2434
01:44:32.225 --> 01:44:35.250
It's the city on the hill, that's the religious version.
2435
01:44:35.250 --> 01:44:40.250
So, and the myth is that we're on this path
2436
01:44:40.470 --> 01:44:44.570
and every now and again, we get confused and we go,
2437
01:44:44.570 --> 01:44:48.940
we lose, the fog settles in and we take a wrong turn
2438
01:44:48.940 --> 01:44:50.885
and we, you know, and there's these odd,
2439
01:44:50.885 --> 01:44:55.885
aberrational, anomalous periods like, oh, slavery
2440
01:44:56.330 --> 01:44:58.650
and internment and you know,
2441
01:44:58.650 --> 01:45:01.380
the forced relocation and slaughter of Native Americans,
2442
01:45:01.380 --> 01:45:03.650
but you know, that's not who we really are
2443
01:45:03.650 --> 01:45:05.210
and we're back on the path.
2444
01:45:05.210 --> 01:45:07.350
And so we have deviation and redemption
2445
01:45:07.350 --> 01:45:11.700
and eventually I suspect that we will integrate this period
2446
01:45:11.700 --> 01:45:14.290
into that myth, but it's just a myth.
2447
01:45:14.290 --> 01:45:19.290
And it's unfortunate that it will probably be read that way,
2448
01:45:20.350 --> 01:45:21.860
'cause the myth is so powerful
2449
01:45:21.860 --> 01:45:23.630
that it just sort of, you know, it's this mod
2450
01:45:23.630 --> 01:45:26.130
that just sort of consumes everything in its path,
2451
01:45:27.270 --> 01:45:31.700
so that people don't see things for what I perceive to be
2452
01:45:31.700 --> 01:45:36.543
as they really are, which is much more,
2453
01:45:41.435 --> 01:45:46.250
much less this sort of one-dimensional trajectory.
2454
01:45:46.250 --> 01:45:47.550
I think that's just silly.
2455
01:45:49.020 --> 01:45:50.524
Well, I wanna thank you.
2456
01:45:50.524 --> 01:45:51.840
It was--
Not at all.
2457
01:45:51.840 --> 01:45:54.530
It was very, very worthwhile for us.
2458
01:45:54.530 --> 01:45:56.390
I really appreciate it.
Happy to do it.
2459
01:45:56.390 --> 01:45:57.797
Johnny needs 20 seconds
2460
01:45:57.797 --> 01:46:00.130
of room tone where we--
2461
01:46:00.130 --> 01:46:02.981
We all sit quietly and contemplate, okay.
2462
01:46:02.981 --> 01:46:04.470
So okay, John.
2463
01:46:04.470 --> 01:46:05.573
Getting room tone.
2464
01:46:21.380 --> 01:46:22.213
End room tone.