Cameraman: Okay, we're rolling. 

Interviewer: Okay, good morning. 

- Morning to you. 

- Thank you. We are very grateful to you for participating in the Witness to Guantanamo Project. 

- Happy to be here. 

Interviewer: Okay. We invite you to speak of your experiences and involvement with detainees who are held at Guantanamo Bay, Cuba. We are hoping to provide you with an opportunity to tell your story in your own words. We are creating an archive of stories so that people in America and around the world will have a better understanding of what you and others have experienced and observed. Future generations must know what happened at Guantanamo and by telling you a story you contributing to history. We appreciate your courage and willingness to speak with us today. 

- Happy to. 

- Thank you. And if there's any time during then interview you wanna take a break, let me know. And if there's something you said you'd like us to remove, we can remove it if you let us know as well. 

- Okay. 

- And we'd like to begin with some basic or general information, beginning with your name and hometown and birthdate perhaps. 

- My name is Joe Margulies. I live now in Chicago and I was born October 6, 1960. 

- Which makes you? 

- 51. 

Interviewer: And your marital status and education? 

- I'm married and I have a law degree. 

Instructor: And current occupation? 

- I'm a lawyer and law professor. 

Interviewer: Okay, and where are you a law professor? 

- Northwestern University. 

- Okay. Is there anything else about your schooling or background that you think might be helpful before we move on? 

- You guys can judge better than I can what's helpful. I'm happy to answer anything you ask though. 

Interviewer: Okay, well then why don't we begin and say how it was that you became involved in Guantanamo 'cause you were there on the ground floor when it just started. 

- Right. 

- And maybe you can say how you were brought in, then we can go from there. 

- Okay. So the story begins with the President's, this is President Bush, President's announcement on November 13 of 2001. That's when he first announced the plan for military commissions. At that time, we now know that they were considering Guantanamo, but they hadn't announced that yet. It was just at that point, a plan for military commissions. And as they were originally described, the Commission's Board, no relationship to what you and I have come to think of as a fair trial, the requirements of a fair trial. There's no presumption of innocence, for instance. There was no right to remain silent and so on. It was obvious even with that first announcement that this could prove very problematic. And at that moment in time there were the beginning of very worrisome indications that the United States might go astray in its response to 9/11. For instance, Alan Dershowitz had already proposed his torture warrants. There was already talk that the people who were held would not be entitled to protections under the Geneva Conventions. There was, 9/11 had been constructed within minutes of the attack as not only an act of war, but an act of war for which the most important response had to be securing greater intelligence. It was perceived immediately as an intelligence failure. And immediately the key to preventing the next 9/11 was gathering intelligence. And when you add that to talk about breaking down protections for prisoners and I don't know maybe torture isn't such a bad idea after all, there was a great deal of concern, at least among some of us. So after that phone call, or after that announcement on the 13th, my wife and I put together a very small, a conference call basically. We reached out to friends of ours in the death penalty and human rights communities that we thought would be interested in this issue. 

Interviewer: I'm sorry to interrupt you, but can you just give us some background? What were you doing at that time? 

- We were living in Minneapolis at that time. I was a criminal defense lawyer and a civil rights lawyer. So my background is, I've always been, I graduated from law school in '88. I clerked for one year, then I went down to Texas and started doing death penalty work representing folks on death row in Texas. And moved to Minneapolis and began just being a indigent criminal defense lawyer in '93 or four, I think. And so I was in, by that time I was in private practice doing civil rights, criminal defense, and still some capital defense work. 

Interviewer: And your wife you said you were, she wrote the letter with you. 

- No it wasn't a letter, it was just, we reached out to folks and made emails and set up a conference call and phone calls. My wife is Sandra Babcock. Sandra is a very prominent and gifted death penalty lawyer who I met in Texas doing death penalty work. And her practice at that time was representing folks on death row around the country, but mostly in Texas and mostly on behalf of Mexican nationals. That's her focus, her niche is the representation of foreign nationals and the importation of international human rights norms into domestic capital litigation. So as it happened, she just happened to be very busy at that period and so couldn't really remain involved in this. But the first phone call that took place on like a few days after the 13th. My memory is that the 13th he makes the announcement, we read about it on the morning of the 14th, sitting around our kitchen table reading the newspaper and think, well this isn't right. And we put together this phone call and we reached out to the Center for Constitutional Rights, Michael Ratner, who Sandra knew, I didn't know him at that time. I knew of him, but I didn't know him. And Michael reached out to people like Jules Lobel, who's worked with Michael. He's a lawyer at the University of Pittsburgh. We reached out to David Cole at Georgetown, Clive Stafford Smith, who was a colleague of ours down in new Orleans, from our death penalty world. A couple of other people in the death penalty community. And we had a phone call. My memory is, he makes the makes the announcement on a Tuesday, I think, I wanna say November 13th is a Tuesday. So we reach out to people on a Wednesday and we have the phone call for Friday. And that phone call eventually became the team that handled the litigation in Rasul. That distilled down and the core became a couple of lawyers at CCR, Michael Ratner and Steven Watt, and me and Clive Stafford Smith. So that was the, that was the beginning, the four of us. 

Interviewer: How did that happen? How did you coalesce in that direction? 

- Well, you know, there's a natural tendency, people who are busy, say look, I'm with you guys, but I just can't, I can't do it right now. And that's how it, you sort of slough off some people. Not for want of interest and not for want of commitment, but time and resources. 

Interviewer: But, the other people were on board with you? Had they also thought about this issue? 

- Well everybody had the same reaction. Everybody who heard the announcement had the same reaction, which is... You know, I shouldn't say everybody. Everybody that I reached out to. But we later discovered when we were trying to enlist other partners, when it was time to file, for instance, we filed in February of 2002, when shortly after prisoners first arrived, it was obvious that a lotta people did not share our view at that moment. Now in time, they all came around, but that was a little early for people. But in that group, everybody was of the same mind. Now that didn't mean we knew how to frame the lawsuit. We didn't know what the lawsuit would be. We thought originally, I mean, people I think sometimes lose sight of this, we originally expected that this was gonna be a challenge to the military commissions. Because at that time you gotta remember, it wasn't clear that this was gonna be a system of just indefinite detention. What had been announced was, we're gonna try people by military commission. And the best evidence is that the administration actually believed that the people that they bring in Guantanamo would be folks you could bring in front of tribunals. So I think the expectation all the way around was this was gonna be a system of prosecutions that lacked the fundamental indicia of fairness, what eventually became the litigation in Hamdan. It didn't dawn on us until January of 2002, when this group, and I sort of took the lead by coming up with the research and identifying Johnson versus Eisentrager which was the key case that the government relied on to argue that there was no jurisdiction and making arguments about, you know starting to do the research on the nature of Guantanamo. And we have actually had a meeting at CCR in January. We'd all been working on it for about six weeks or so. And we had a meeting, and by that time, David Hicks was in custody. David Hicks was at the base. So the base it opened. So the base opens January 11th of 2002, that's when the first prisoners arrived. And David was on the, you know one of the very first flights there. And we had a meeting at CCR in New York on their offices on on Broadway. And Clive was on the phone as I recall and I was there and Michael and Steven Watt and maybe some other people were calling in. And also on the line was a lawyer from Adelaide, Wisconsin, Wisconsin, Adelaide, Australia, whose name is Steve Kenny. And Steve was counsel for David Hicks's father. David Hicks' father, we learned from the Australian government that David was in custody. And Steve Kenny was encouraging us to challenge his detention. He says, you gotta file something. We don't know what his condition is. He's not charging with anything. And I remember in that call saying, well the problem is Steve, they haven't charged them in commissions yet. There's no, there's no prosecution, there's nothing to charge, there's nothing to challenge yet. And Steve, who's a very, very good lawyer, and I, you know, I've always given credit where credit is due said, Joe you don't understand, they'll never charge him. The whole point is they'll just hold him. Why should they charge him, if they can just hold him and accomplish the same thing? This is not a case about challenging some military commission prosecution that may happen or may not, this is about indefinite detention. And then a light goes on over my head, ah. And that's the moment that it became clear to me what Guantanamo was and how it had to be challenged. And from that moment, the challenge became can you hold people simply beyond the law? Can you just sort of wave a magic wand and say, poof you have no right except for those that we bestow upon you as a matter of grace? You don't have a right say, wait a second, I'm the wrong guy. You don't have a right to challenge anything about the conditions in which you're being held. You don't have a right to say, I didn't do anything wrong. No, no, no, no, no, no, and they can just hold you forever? That's when Rasul was born and all the subsequent litigation about habeas was sort of, including Padilla, Hamdi, sort of originated at that moment. 

Interviewer: Did everyone go on board with you when after Steve Kenny hung up the phone? I guess you-- 

- It was obvious. I don't know, I can't speak for the other guys, but I'm a member saying, oh well this, now it's clear. And I went back to my office and wrote the complaint that became Rasul, the petition for writ of habeas corpus that we filed in Rasul. 

Interviewer: Did you feel lonely? Did you feel like it was just a few of you against the world in the sense that very few lawyers were involved in this at that point? Did that matter to you? Did you care about that? 

- No. So it's very important to me that this not come across as immodest or anything other than what it is. But death penalty lawyers, civil rights lawyers, which is what I was, criminal defense lawyers, never have the cheering section on their side. So you know, you have a group of people who believe in what they're doing and believe they're doing the right thing working with us, working with me and that's what I've, I didn't perceive it as strange at all. Which is why when people say to me, Joe it's so heroic that you were, you know you were the first and everybody else wouldn't get involved. I had no conception of that and I've always been resistant to that. 

Interviewer: Why do you think death penalty lawyers were the core of this group? 

- Well I'm not sure I would say, I don't, it's very important to me, you know, we won Rasul and people think that there's something honorable about what we did. And so therefore when, you know success has many fathers and failures an orphan. I'm the first to say, I've lost plenty a cases. I lose all the damn time. I've gotten my kicked over and over and over again. I've made bad law in multiple jurisdictions all over the country. And so I'm very, also very quick to say, I wanna resist the idea that death penalty lawyers were the core. Clive and I were very important in the beginning, but so were Michael and Steven Watt. I will say that within CCR and CCR is a very progressive organization, there was some resistance, even within an organization like CCR to get involved in these, getting involved in these cases. 

Interviewer: Why is that? 

- You know, put yourself back in that time. These were... First of all, you know, the administration had demonized them. You remember, these are the worst of the worst. David Hicks is the guy they were talking about when they said he would chew through the hydraulic lines of a C30 to bring it down and crash the plane. And that's what they were saying, that's the guy. Now David Hicks is a nebbish. And David Hicks is a perfectly nice guy. You know, he's no more a hardened terrorist than I'm gonna sprout wings and fly away. But, you know, they were saying all these bad things about people. And however much folks know at some intellectual level that the government exaggerates and they're given a hyperbole and that they always create worst of worst, there was a sense that I don't, maybe that's who these guys really are. And so there was a resistance to get involved at that stage. 

- Did you did, another lawyer told us that he got 200 pieces of hate mail and death threats over a weekend when he filed a lawsuit early in that time period. Did you get any hate mail and death threats? 

- I've always been amazed at those stories. I don't know where these guys practice. You know, when we filed, when we filed Rasul, which was petition for writ of habeas corpus, and it was the, it wasn't the first, it was the first one filed on behalf of clients. There was another case filed in in LA by Erwin Chemerinsky, which was terrific. It was wonderfully done, but they were doing it as next friend to a group, a religious group that had no clients and so they were quickly dismissed for want of standing. But the legal strategy was very, very sound. So we were the first to file on behalf of real people, and so ours was the one that went forward. And when we filed Clive got a death threat, a phone call, a threatening phone call at night at home. I got nothing like that. I was living in Minneapolis at the time and people saw my name in the Times and I got phone calls from old friends of mine, people hadn't seen me from law school in many years saying, you know, ah mazel tov, good for you. I wouldn't do it, but you know, good on you. I have over the years, when my name is associated with this event or that, gotten angry emails, never anything that's, that I would characterize as a death threat. And the ones actually that always are the most offensive to me are the ones that say that I'm a bad Jew, that I'm a bad Jew for doing this. Those are the ones that, those are the ones that are most confusing to me. 

Interviewer: How did you get Rasul as the client? 

- So we originally were contacted by David Hicks's father. And at that time they were also, you know Rasul and the other Brits had also arrived. And what happened was they were allowed to send a letter home to their families, which would be delivered by the Red Cross. You know, it was read and censored by the United States and delivered by the Red Cross. And it's not accidental that the first clients who, or the first people who sort of spoke up, came from very Westernized cultures. Because when their families received this, the very thing they did is go to lawyers. And so the British lawyers who were contacted by the families of Asif Iqbal and Shafiq Rasul were human rights lawyers who knew Michael. And either Michael reached out to them or they reached out to Michael, I can't remember exactly. And he said, we're thinking about challenging this, do you want your clients to be involved? So originally it was those three, Rasul, Iqbal, and Hicks. And in April, Habib arrived at the base and he was the other Australian. And his family reached, knew about the lawsuit by this time and they reached out to us and we added them, him into the case. So it was those four. And then there were the Kuwaitis in the other case that was going up at the same time and they filed in May I think, and they joined us. 

Interviewer: Did you think there's a chance you might succeed? 

- Oh yeah. 

- Did you really? 

- Oh yeah. 

Interviewer: Why? 

- The same reason that we did succeed. Cause it was right. 

Interviewer: Well, you didn't in the lower courts. Were you surprised. 

- Oh you never do. 

- You thought you would not prevail until you hit the Supreme Court? Is that what you were thinking all along this-- 

- Of course. 

Interviewer: Did you even think the Supreme Court would take the case? 

- Absolutely. 

Interviewer: Why, why were you so confident about that? 

- Well confident's not quite the right word, but I didn't have any... What the administration was doing was a really exceptional thing. The idea that you will hold a prisoner utterly beyond legal protection. Now it is one thing to say the legal protection is one that cannot be enforced in a court, but we will nonetheless extend to them legal protections based on an extant framework that we will hold ourselves to. That's the Geneva Conventions. Geneva Conventions aren't, well query whether they are, it's a debatable term, whether they are enforceable in court. But if there had been a declaration, we will comply with the conventions, well maybe we wouldn't have gotten cert, right? And I remember having this conversation with Michael Chertoff, who was, you know Secretary of Homeland Security at the time, saying you know, these cases would probably go away, if you guys would just create a construct that you agree to be bound by. But they steadfastly refused. Well, that's a pretty remarkable statement to be made. You know, time will tell, we don't know because it's not, hasn't been released yet, from the deliberations of the court whether it was a tough question for them. But I didn't think that they would let something like Guantanamo pass. And once they took it, they don't take it to affirm it. There's no reason for them to take it to affirm it. They took it to reverse it, to reverse the DC circuit. 

Interviewer: Were other people who you worked with as confident or, if you don't wanna use the word confident, as sure as you that this case was going to go to the Supreme Court and they were gonna reverse it. Did people feel-- 

- I don't know. I never really, I've never talked to Michael about this. 

Interviewer: Clive. Clive was... 

- I, no, I don't, I don't know. 

- So when the decision, Rasul decision was released by the Supreme Court, did you feel like it was over, that was the end of the game? 

- Yeah. So we met a real, I don't want to attribute it to anybody else, made a real miscalculation at that point. What we knew at that point was that there was a thing that Guantanamo had become, and its purpose in life was as a an isolated interrogation chamber, a massive interrogation chamber free from any outside interference. And I remember telling, and it was after Rasul, that's when all the other lawyers came in, because now we were entitled to file habeas petitions on behalf of other people. So everybody gets a shot, so we need lawyers. And I remember telling those lawyers, the most important thing we can do to alter the character of Guantanamo is for you to go to the base. Because what I used to say is if we open it up, they'll shut it down. Because it can't exist in the form that it had become. If you could, what I would say to people is, look when you can bring your client a personal pan pizza, it is no longer a prison beyond the law. You know I don't care what else happens, you can bring your client fresh fruit and a cup a coffee and sit and play cards with him, its purpose as an interrogation chamber has ended. And so I thought, well if there's no purpose in an interrogation chamber, and they didn't let a lot of people go. What didn't realize is what would happen is it would transform from an interrogation chamber just to a long-term detention center. And that's what it now is. And as it became more politicized it became more difficult to, then you're trying to move symbols rather than people and then it became much more entrenched. That's where we are now. And I didn't foresee that. 

Interviewer: So what do you foresee the day of the decision? 

- I remember Michael and I thought that it'd be closed in six months. Boy were we wrong here. Here we are 10 years later. 

Interviewer: I wanna go back to kind of what you described as interrogation center. What rumors did you hear, what did you hear during those two years between the time you filed and the decision that caused you to think like that? What did you know about Guantanamo? No one had been there. 

- Well, that's interesting. I don't remember when I knew different things but we started to get word about, we hadn't yet heard of the enhanced interrogation techniques, but you started to get word about interrogation abuses. Like there were reports of interrogation abuses at Bagram. There were some... There was like an article by Mark Bowden in the Atlantic on the KUBARK manual, the CIA manual. This is really how you use, this is what really goes on. And that looked kind of eerily similar with what we were hearing, what's happening at places. There were rumors that the CIA was holding people. The mere fact that they wouldn't let anybody down there gave us pause. You know, there were those pictures when Guantanamo first opened, when they brought people there of the guys, you know, in blackout goggles and hoods, which is all about sensory deprivation. So you could sort of piece together that this was and of course we knew that their idea was that 9/11 is an intelligence failure. There's this thing called the, you know the mosaic theory where everything is these little bitty tiles that may seem innocuous and innocent, but you've gotta put them on this massive, massive wall and move 'em around and, you know a tile might be insignificant until it's placed up there and then suddenly a pattern emerges. I mean, that's their theory. So therefore you gotta go back and ask this person about this tile over and over and over again, because it doesn't acquire meaning until it's clustered around others. And so therefore you gotta be able to interrogate 'em endlessly and you gotta be able to use whatever conditions you need to in order to have him tell you that. You can't leave any information on the ground in other words. There's these talk of, you know the 1% doctrine, things like that. I don't know when we learned that, but this was all coming out. And then of course we had the great, I mean, you gotta remember the... We argued April 20th, I wanna say. Well, what happened April 28th, which was the day that Hamdi and Padilla argued, two different times? Do you know what happened April 28th? You probably do. 

Interviewer: Is that Abu Ghraib. 

- That's when the first announcement is about Abu Ghraib. So every single day on the front page of the New York Times and the front page of the LA Times and the Washington Post you had a new amicus brief for us on, you know, oh this is why you don't have a prison beyond the law. Oh look, they're stacking them up like cords of wood, oh naked, with dog chains. 

- Did you get-- 

- Can we break for just a sec? 

- Sure. Did you or any of the other lawyers get to speak to Rasul when he was released, since he's released before the decision? And did that, did he tell you of what was going on Guantanamo? 

- Right, he was released I think in, it's interesting. He was released, that's another sort of the odd thing about the case, he was released, I wanna say in March. So we filed, I think the reply brief, and he was already gone. So it's a case, a famous case named after a guy about his detention, and he's no longer in detention at the time the case comes down. It doesn't even figure in the decision. I didn't speak with Rasul. I know Michael and Steven Watt did. And they started to, his lawyer there started to debrief him about the conditions, but we, you know, the argument was already over. We didn't have much, we couldn't make that part of the case. The record's already sealed in that, the record's already complete. I remember very, very soon after you may have heard about this, the decision comes down end of June. In July there was a meeting at Columbia where we brought in a bunch of the new lawyers. So a lot of those sort of the first wave or the second wave of habeas lawyers started then. So there's, you know, a lotta the guys who have been, now been around a long time started then and was at that meeting. And at that meeting was Gareth Peirce, who was Rasul's lawyer. And she told us that she was in the business or she was busy trying to debrief Rasul and Iqbal about their conditions, in a very systematic way, which became this sort of report on their conditions. And we had an early draft, I wanna say, which we couldn't cite yet, 'cause it hadn't been, you know, it wasn't done. So we were just learning about it then. 

Interviewer: So as soon as the decision was released did you make plans to go into Guantanamo yourself? Did you think you-- 

- Right. That's you know, I remember we had a, we had a hearing in front of I wanna say Judge Kollar-Kotelly who had the case, immediately after the decision saying well what does it mean? I know the solicitor general was on the line or the acting SG, I think. And he said, well judge, you know, the government, U.S. government is still studying it and we don't really know and blah, blah, blah. And I said, judge they can study it all they want, but these guys have been in custody for, you know over two years now, 2 1/2 years and whatever else it means, it means we have a right to prosecute this habeas action. And so therefore we have a right to get out our clients. We have a right to access. And I told all the lawyers that the mantra has to be, we have a right to access and answers. They gotta answer the petition and we gotta be able to get to our clients. So we were agitating to get to the base from the beginning. It was actually a question about what was gonna happen. The administration really had to think about, well just what does Rasul mean and do they really have a right to go to the base? Does Rasul imply that? And they actually thought about resisting that. They couldn't read the decision and say, well we can't fight that. They eventually did come to that. What they first said was, well for these lawyers only, for the lawyers who were involved in Rasul, we don't know about any other lawyers, we're as a matter of grace, letting them go to the base. And that quickly broke down and everybody was allowed to go. But they said, you gotta get a security clearance first. And the security clearance process, even though we had started the security clearance, I had submitted my security application years earlier. They hadn't acted on it. In fact, they lost it, so I had to redo it. Why? Because we knew that in order to get there, we wanted to be able to say, I have a security clearance. You have no reason not to let me go to the base. Let me go talk to my client. You gotta remember, while this case is going on, the guys don't even know it, right? I mean, we could file whatever we want. We could send them copies. We could mail, they'll just throw it away. I mean, they're not gonna get it, they're not gonna get it delivered to our clients, so. When I, the first time I went to the base was November. I tried to go in August, you probably have heard this story. I don't know who all you've spoken with, but the first lawyer to go, first habeas lawyer to go was Gita Gutierrez. 

Interviewer: How did that happen? 

- So it was August, we all finally had our security clearance and we were, (laughs) Gita would probably know the, be able to reconstruct it better. And the three people who were gonna go first, where me, Gita, and Brent Mickum. And at the last minute, they came up with this new rule. They said, you know, if you don't get authority to represent your guy, to transform your litigation from on behalf of a next friend, mother, sister, father, to direct representation, that is your guy authorizes you to go forward, we're not letting you back. And we said, well we have no idea what sorta condition he's in. We never talked to him, I mean, you know, we don't know how long it's gonna take to establish a relate. They said, ah. So I had a concern that Habib who I was gonna go see, you know, doesn't know me from a sack of oats. You know this Jewish lawyer who comes in here, says, hi I'm your lawyer and gives him a piece of paper to sign and says here let me do for you. And he says thanks very much, but you guys have done enough for me. So I had no idea. So we made a decision at the last minute, a very painful decision that we we're gonna wait. And it was then that we brought Maha Habib, Mamdouh's wife, as well as their lawyer in Sydney to the United States to try to learn more about Mamdouh, so that if we only had one visit, we could make the most of it. And so, and then I had, that was in July. We brought them over in August, I think, or maybe late July. And then unfortunately I had a trial in another case, I had a trial on a murder case from earlier in my life that took place in late September, October. So as it turns out, I couldn't go until November. 

Interviewer: Gita didn't have that same worry. 

- Gita was going to see Moazzam Begg. Moazzam, very Westernized, had lived in London. Spoke English perfectly. 

- Lawyer. 

- A lawyer and didn't have that same concern. And she was right. And in fact it turns out, I didn't have that problem. I could have gone in July. It would have been fine. Whatever I was, what happening with Mamdouh was gonna happen then or, but it would have been fine. But you couldn't predict that. So Brent and I both put ours off. I can't remember who he was gonna go see, Jamil El Banna as I recall. And so Gita went first and then in between Gita and me I think Baher Azmy might've gone down. There might a been a couple others. 

Interviewer: So what was your impressions? What are you expecting you went down there? What were your impressions the first time? 

- You know, I've been to a lot of prisons, I mean, as a death penalty lawyer and as a criminal defense lawyer. I've been to a lotta jails and a lotta prisons. I've been to death row in half a dozen states. I've been to the federal death row. I've been at very, very high security settings. And I have described this before, and I have to say Guantanamo is now very different than it was then. This was late 2004. It was just coming off the worst period at Guantanamo. The worst period at Guantanamo was from around late 2002 to you know mid-2004. That's when it was really, really the worst, the worst interrogations, the worst conditions, the worst conditions of confinement, treatment. And it was different, you know, some people had it worse for longer periods and so on. And I have described it as the most disturbing place I've ever been to. And the only, now you weren't allowed to see much, and the only client I saw and part of what made it so odd is the way they sheltered you from everyone else. You know, there's no sense that this is a place where anyone else's held. As far as I could tell, it's this massive structure, multiple structures that holds one guy, which is my client. 'Cause they bring them into this special room, concrete and plywood and air conditioning running loud, and a bunk and a narrow steel cage where he sleeps while you're, while the length of this visit goes on. And when you leave, he's unshackled from the floor in the middle of the room and put into that room. And they were still so freaked out about who these guys were. And it was then that I really understood why the most precious commodity in any prison is hope. It's not, you know, it's not an extra half hour of sunlight. It's not an extra half hour of exercise. It's not communal living spaces. It's hope. If these guys, if you extinguish a prisoner's hope, hope for a better future, hope that this fate will end, hope that he'll be reunited with his family, hope that he will see his children again, that maybe he'll even get a chance to hug his little girl, if you extinguish that, the little flame behind his eyes goes out and they have this blank, dead, deadened not just a blank affect, but just this completely empty shell of a person, which we created, right? I mean, you go from a person who isn't that way to the person who is, by virtue of how he is treated here. And that's what had happened to Mamdouh. 

Interviewer: You didn't expect that? 

- No, no. 

- What did you-- 

- I didn't know what to expect. I mean I hadn't, what I was expecting more, I had no concept for, I wasn't focused on... I was focused on things like, you know, his physical health, how will he be? You know, will he have lost weight? Will he walk with a limp? Will he have scars? I really what I should've been, I should've been more focused in on his emotional health. I was focused on things like, well will he accept me? I had this elaborate plan to try to, you know gradually tell him more and more things so that he would come to trust me. I don't know if read out my descriptions about that. The things that Maha had told me to get, 'cause I figured he'd think I was just another interrogator who was playing games. We knew that interrogators were doing that. There were interrogators who were pretending to be the guys' lawyers. Hi, I'm you lawyer, not tell me what you really did. Oh good, I'm so glad there's a lawyer here, let me tell you about how I bombed these places. Of course it was silly. None of that, there was... They didn't tell us any more than, there was no, there, there. I wasn't prepared for how deadened he would be. And it was very, like I said, I've been in a lot of prisons and lotta guys who've spent a lot of time talking, men and women, and I've never seen this kind of just deadness. 

Interviewer: Did you feel that at that time that therefore Guantanamo was a unique institution that created that deadness? 

- Oh yeah, not just Guantanamo. I mean, you can create Guantanamo anywhere, right? That's why I'm not as hung up as other people are about closing it, right? What matters is not where you hold them, it's how you hold. And if you create the right conditions, you can make anything into a horror chamber. And I had no doubt, no doubt that other places were vastly worse than Guantanamo. I know that to be true. We know what happened at the black sites. So, you can create places that will do real, that will really scar folks. 

Interviewer: Did that change the way you interfaced with Mamdouh when you saw that you looking at a person who was deadened? Did that change everything that you had thought about when you first went down there? 

- Well, you know, I was very fortunate because by virtue of what happened, I don't know whether you want me to get into the whole story of how Mamdouh got out, how we eventually got Mamdouh released. 

Interviewer: I do at some point. If you wanna say it now, that'd be fine. But I'd like to, I do wanna-- 

- Yeah. 

- Hear that story, yes. 

- Well, in answer to your immediate question, it did... What I discovered that trip and I... (sighs) And I used to, I remember I used to tell the lawyers this, you know, the other lawyers who were just starting to go down is, you know, here we are in law school and so it's fitting that I use this expression, here is a place where you learn to think like a lawyer. I would say to them, don't think like a lawyer, just think like a human being. Pretend that once again you are a human being and not a lawyer. And you're talking to a guy who has gone through a great deal. The whole purpose of the administration's detention program was to disorient them so and to create such a sense of despair and desperation that they would give up any capacity to resist. That's the whole logic of it. And you know, it's not important anymore to get involved about whether that's a good idea or a bad idea. It's been critiqued, it's clearly a mistake. Whether it gets good information or not, it's certainly morally bankrupt. But these are guys who having been wrung dry, they don't do anything to sort of restore them from that condition they created, so they're still in that condition. Well, how do you deal with a person like that? Well, the answer you don't deal with them. You don't treat them like a client. You know, you don't come down with your notebook and say, okay, you know, Mr.Binatosh, I'm gonna, here's what I'm going to represent you in. And this is how, this is what the law is. Stop it, just stop it, you know. So I would tell guys, just don't take out your notebook, don't talk to him about the case, don't you know, follow their lead. If they wanna know what you're gonna do, tell them what you're gonna do. If they wanna talk to you about the food, talk to 'em about the food. Just be a sounding board, be an empathic or empathetic listener. Engage them with what they are prepared to engage you with. And gradually that may change and you don't know how long it's gonna take. So with Mamdouh, you know I went down there. I'm Joe Margulies. I'm a lawyer and here's the U.S. Supreme Court and here's the Supreme Court decision. Hi, Mr. Habib, I'm.... Well that was stupid. And he just looked at me with this blank, dead stare. Yes, thank you very much, yes. And I went through this whole spiel about, you know, Mamdouh, I've represented you for years. You don't know, but the little did you know, you just won a case in the United States Supreme Court, congratulations. And he, nothing, nothing at all. I had my business card. I had the Supreme Court decision that had his name on it. I showed him on the plea, I brought a set up all the pleadings. Here's all the pleadings we filed on your behalf. Look at all the things we said. Look all this great stuff we've done, blah, blah, blah. Okay, great. Absolutely no effect. No even I could have just sort of said, oh, you know what here's a copy of the Magna Carta and here's the original King James Bible and you know, nothing, it did nothing for him. And so I realized, okay well this is not, you know I probably could have stuck a piece of paper under his nose and said, if you'll just sign right here it'll allow me to continue to represent you and I'll be on my way and that (claps hands) Yeah and he just signed anything, you know. But that's not what you want, right? Then you not really have a client, you just, you just have a piece of paper. So I put all this stuff away and I put it back in my bag. And I... I said to him, let me start over again. Mamdouh this isn't what we wanna have happen here. And then I told him, said look, I know you don't know me and I anticipated that you wouldn't know me. And you don't have any reason to trust me and I'm not asking you to trust me, I got to earn your, I got to win. But I do want you to know that I'm legit. I'm not making this up, this is not... And there's only one way I could think of to try to get past this point in the conversation, because I thought it might happen. And I wanna share with you some things to demonstrate to you what we have done. Last month or July, I can't remember, this was November, so I might've said, you know, a few months ago your wife and her lawyer flew from Sydney. We flew them to Chicago and put them up in a hotel. And we met with Maha to talk about you and talk about your life and to help us understand who you are and how to approach this meeting. In fact, I coulda come down here earlier, but I was so worried that you wouldn't, that I wanted to do this first. And I told Maha that he might think I'm an interrogator. He might think that I'm with the U.S. government. And there's no reason to think that he'll you know, there's no... So Maha here's what I need you to do. When you go back to your hotel room tonight before we meet again tomorrow morning, I want you to think of three things that Mamdouh knows that you know, but no one else knows. Things that are so obscure, so personal to you, trivial, insignificant to everybody else that no interrogator would know them unless they got them, because no interrogator would get them by extracting them from you, because they have no intelligence value. They're just personal things that he would know that you talked to me freely about these personal things. And she said, okay, let me, you know Maha's a savvy smart woman. She came back the next day. and she said, okay Joe, I've thought of these three things. And the meetings with her were very, you know 'cause here it is, she doesn't know me, and we're flying her from Sydney, Australia and she gradually opened up to us as well, warmed up to us. Had to leave her children behind, so. Okay, the three things were, let me see if I can remember them all now. Here's where Mamdouh and I went on our first date, years ago. Here's the first gift he ever gave to me when we were dating. And when our oldest son was sick and he was in the hospital and we spent all night in the hospital at his bedside where were our other kids? Where did they stay? Well I thought those were great examples. And I know answers to those questions. I've never repeated them out loud except to Mamdouh. I've never, 'cause it's, well for the reasons that I described, right? It's nobody's business. But I told him those three things. I said, I want to tell you, Maha told us these things. And I told him the answers to those three questions, those questions and those answers. And up until that time, he had this completely dead, indifferent, detached presence. Not even an affect, 'cause affect suggests that there's, you know what you're describing is a, and it wasn't even there. It's like you're talking to a cat, right, who's just looking at you occasionally blinking. It's not a, okay. And when I told them these things and of course you remember he had hands, his feet are shackled. This is a guy who's feet are shackled, he can't cross his leg like this, you know 'cause his feet are shackled there. He's, at my request, the guards had taken the shackles off of his wrists, but that's the first time the shackles had been off his wrists outside of the little cage that he's in, in years. And he looked at me for a long time and then he dropped his head and started to cry. He started to sob and the tears were just falling down. And then he looked back up, tears in his eyes, and he said to me, Joe, we have so much work to do. And that's when I knew, okay, now I have a client. So now you can, so at that point you can say, let's get to work. And you can go anywhere you want. Tell me what you want to talk to me about. And you can talk to you about Guantanamo. You can talk to you about... As it happened, I knew I had something that was important for us to talk about and it turns out it's how he got home. We had heard, while I was there, and things like this used to happen, they don't happen as much anymore. We were allowed to check our email at a little sort of base library. It's a library, it's about as big as this room, so not much. And there were a few computer screens. And so you could go there during lunch hour and check your email. And somebody anonymously, I have no idea who, still don't, had sent me an email saying that the Australia, or the Egyptian government had requested the return from Guantanamo of the Egyptian citizens, one of whom was Habib. They identified, they named them all. And Habib was born in Egypt, and so he still had a Egyptian citizenship, but he had been in Australia forever. Well, I knew that Habib had been rendered to Egypt and tortured in Egypt when he was first picked up in October of 2001. The reason he didn't get the Guantanamo until April is that unlike the other guys, he was sent to Egypt first, where they tortured the bejesus out of him and now Egypt was asking for him back. So I spent most of the time that I was there that day, that day and the next day, that whole trip, getting a very detailed account about his rendition from U.S. custody to Egypt and what happened to him in Egyptian custody. 

Interviewer: From him, you got this? 

- Right, exceedingly detailed, including the evidence, including the description of the U.S. contractors who rendered him. It was one of the most detailed accounts at the time of just what the rendition was and what it involved. And when I got back, this is like Christmas or Thanksgiving Day or the day before Thanksgiving, I went to the secure facility and I wrote it all up just from memory, 'cause I didn't have my notes. You can take notes, but the notes can't come back with you. They have to go back in a secure pouch. So I just went in and I wanted to do it right away and I wrote up this affidavit on saying here's what I was just told in great, great detail. And then I filed a memorandum or a motion saying to block his transfer and filed that with the court, saying you can't send him back, he's been tortured before, they're gonna torture him again. And the way it works at, in the Guantanamo litigation is once you file something, it remains sealed until the court security office says okay you can file this publicly or you can file it publicly, but here this much as redacted, okay. So usually that didn't, at that time it didn't take long. They'd usually go through these reviews pretty quickly 48 hours, 72 hours. This one was taking weeks and they weren't getting back to me and weren't getting back to me and that's no good, 'cause I wanted this stuff to be part of the public record. So finally, I sent a note to the court security office saying, look if you don't get this back to me publicly by close of business tomorrow, or rather if you don't make a decision one way or the other, you know, yes, you can file it publicly, no you gotta litigate, if you don't, if you continue to do nothing, I'm gonna file a motion and you have 'til close a business tomorrow. At one o'clock the next afternoon, they sent me an email saying it's all been cleared for public filing. You can clear it, you can file it all and they didn't redact anything. And I didn't wait for them to change their mind, I filed it instantly, publicly and then immediately afterwards, and I'm completely unapologetic about this, press send and sent the material to Dana Priest at the Washington Post. All of it, the description, everything that I had filed, which was now allowed to be, I was allowed to do that. That night she sends me a note back or maybe calls me and leaves a voicemail saying, Joe we're gonna run a story on this. It's gonna run in tomorrow's Post. Well, as it happened, the next day is the day that Alberto Gonzales was testifying at the Senate Judiciary Committee about his confirmation from going from White House counsel to Attorney General. Ashcroft had left and Gonzales was named to be acting AG and this was his confirmation hearing. The day of his confirmation hearing there is a front page article in the Washington Post about Mamdouh Habib's rendition describing his torture and describing the U.S. involvement in it. And Dick Durbin bless his heart, Senator from Illinois, holds up the Washington Post and shows it to Gonzales, who is blind sided, right, 'cause he doesn't know this is coming. It just appears, so he's not prepped on it. Says did you see this? If this is true, isn't this illegal? And Gonzales, says yes if that's true, it's illegal. If that's true, a crime was committed. That's a Tuesday. Thursday morning, Wednesday night, something like that, I got a phone call from the Australian embassy saying Mamdouh is gonna be released. Don't tell anybody yet, 'cause the Defense Department asked us not to make it public. But when he's released, would you be willing to fly, we're gonna charter a plane and fly him home from Australia or to Australia, would you be willing to accompany him on the flight? And I said yes, and that was early January of 2005. He flew home January 30th or 31st. And I am the only lawyer who has been allowed to accompany a client home from the base. And that's how he got home. 

- Why did they, why did Australia want you to accompany him? 

- Probably because there were, I suspect there were allegations that the Australian government had been aware of his rendition, knew that he was being rendered, knew that he'd been tortured before the rendition, and knew that he was gonna be tortured and may have even been present in Egypt while he was being tortured and hadn't come to his defense. So the Australian government was under the gun, because they of course saw this document that I filed as well. And in order to demonstrate, no, no, no, no, we're very solicitous of this guy, we're even letting his lawyer there. The real question is why the U.S. government allowed me to, because I had to get to the base. We met at Guantanamo. I (clears throat) the way it worked was, I met the Australian contingent at the airport in Miami at a special private charter section of the airport in Miami, this sleek, fancy Gulfstream jet. We hopped from Miami to Guantanamo and we pick him up there. We pick up Habib there. But I didn't have, I didn't have, I mean, I was on the military base. Ordinarily you can't get to the base unless you have clearance. You have to be allowed to go. Not just your regular security clearance, but you have to be permitted to land at a military. I can't just walk into any military base. You have to be authorized to be there. So they wouldn't let me get off the plane. I had to stay on the plane. And I remember when they brought Mamdouh in a truck up to the plane and the Australian government let me sort of go right to the edge of the open, the open a stairway down to the tarmac. And they walked, they took Mamdouh out of this truck and they took off his shackles and everything and they hand him his, you know, some personals that had been traveling around with him, you know, like a wallet and things like that. And he walks over from the truck to the plane and he told me that it wasn't until he saw me in the plane that he realized he was going home to Australia. He didn't know for sure where he was going. And in fact, a guard prior to that had told him he was being sent to Egypt. So he saw me and we, that was the flight home. 

Interviewer: Can you describe the flight home? Were there Americans? 

- You know, there's a, no, there were no Americans on the plane. Australian security contingent, you know, attorney general from the attorney general, their attorney general's office. It was very, very casual. There was a difference of opinion. Mamdouh describes it differently. My memory is that it was very boring and everybody slept. Mamdouh says, it was very boring. Joe slept, I didn't sleep. And he says and Joe snores. So I, you know, I trust that he's right. 

- He wasn't bound? 

- No. 

- Shackled? 

- Oh no, absolutely not. He was free to get up and walk around 

Interviewer: And Maha, his wife, was waiting for him? 

- We didn't know that. So this was the best part. We landed in Sydney. We had to stop in Tahiti to refuel, but again, you know, just to refuel, neither of us got off the plane. And then we fly on, I don't know, it was, you know, it's a long flight. And we landed in Sydney and by that time, we had tried to keep the local news from learning about it. You know we didn't want there to be a big media attention there because this is back when, you know not a lotta people had been released yet, so there's a lot of attention, much more media news. But we were unsuccessful and the media had heard about it. So the Australian government landed us at the tarmac and unbeknownst to me, local council had arranged a small personal jet, not a jet, personal plane, a little bitty six seater, owned by a friend of his to fly us from the international airport at Sydney to a local airport nearby. And so we got off of this very fancy Gulfstream jet, in fact immigration came into, they checked my passport there, immigration came onto the plane and checked it there. They asked for Mr. Habib's passport. Mr. Habib, do you have a passport? I'm sorry, it's outta date. I've been away for a little while. And they, oh that's okay. And so we walked down the steps of that and you know we're kind of rickety and uneasy and I didn't even know about this. And my co-counsel's there and he says, Joe, come we've, and so he directs us to this other plane. Okay, fine. So we walk up the steps of this other little plane, Mamdouh was ahead of me, and he explains to me, this is what we're gonna do. Oh, that's a good idea. And he looks in and he sees his wife who he hadn't seen in you know, forever sitting in the back. And that was completely, and he was shocked by it. You know at one point in fact interrogators had told him that she was dead. He sort of falls back, loses his balance and tumbles into the plane, pours himself into the back seat. They embrace. And my co-counsel, I will be forever in his debt for this, had the presence of mind to bring this sort of like, you know, one of those screens that you put up in your car to keep the sun out, and he spread it sort of in this jury rig fashion between the rows of seats where they were and the rows of seats where we were, and we were the only people on the plane. And the pilot taxis off and takes off and all you hear is them sobbing in the seat behind us. It was fabulous. Give them a little privacy. And we were flying along and there's actually press planes, helicopters hovering behind us, filming us. So then we landed at some other airport, I don't know anything about Sydney but something out in the suburbs somewhere and then took a car to his family's, to his home. 

Interviewer: He had said to us that when we interviewed him, that he didn't believe it was his wife, because they told him that she was killed, she was dead. Did you? You didn't get that-- 

- I think that at first he didn't know who it was. I mean he came around to believing it. That was obvious, but at first he was really shook by the sight of this person. You gotta remember he hadn't seen her in a long time and she hadn't seen him. 

Interviewer: So was David Hicks in this mix at all? David Hicks was not your client, so this was totally separate. 

- David was, David was our client. He was part of Rasul. But while Rasul was pending, they designated David as a candidate for military commissions. So then he was sort of in a separate category, because one, everything that Rasul was about was holding people with no legal process at all. Well, suddenly Hicks has legal process. Nobody knew what it was about, and they designated a military lawyer for him. So though Hicks was part of Rasul, he was also a special case. And since he had a military lawyer, after Rasul came down, I didn't see him. I eventually did meet him on one of my other trips. I happened to go down there the same time that his lawyer was seeing David and I was able to spend, you know, 30 seconds chatting with him. That's the only time I met him. And he hadn't, he was not released for some time, 'til sometime later. Dan Morely represented him. 

- So did he know, did he feel like he, since he was also Australian, that he should have been released along with Habib, at the same time? 

- That I can't speak to. I didn't, I don't know how he-- 

Interviewer: Who else did you represent if you can tell us, if you kept returning to Guantanamo, who else were you representing during that time? 

- Well, the when, so the original four who were part of Rasul, you know, Asif Iqbal and Shafiq Rasul, they were released in March and then Habib was released the following January and then Hicks got out later and he had military council. So that case all the people were gone. And then in 2005 I took a hiatus and wasn't representing folks, 'cause that's when I wrote the book that I wrote. 

Interviewer: Could you tell us just for the public, with book you wrote? 

- It's called "Guantanamo and the Abuse of Presidential Power." And that was published in 2006. And so after that case was done or after the book was done is when in September of 2006 is when the President announced that he was taking the people out of the CIA black sites and bringing them to Guantanamo. And I got, I was contacted by the Center for Constitutional Rights and asked whether I would represent one of those guys. And I do along with Brent Mickum, who similarly, his original clients had been released and he was without a client as well. So we got back in and we now represent Abu Zubaydah. 

Interviewer: And can you tell us a little bit about that representation? 

- So Zubaydah is to me, I didn't know this at the time, one of the most important cases there. And the reason, and when I say I didn't know it at the time, I didn't know it, all I knew when they asked me to represent him is that he was one of the high value guys or what they call high value. He was the first person who was held in a CIA black site. He was picked up almost 10 years ago exactly, in end of March, 2002, transferred to a black site in Thailand. And he was the first one subjected to the enhanced interrogation techniques. Because he was the first, we know more about his interrogation or I should say more has been released publicly or leaked about his interrogation than any of the other high value people. And we know, because the memos that were written, the torture memos, which are the subject of so much, you know, infamy were written to justify Abu Zubaydah's interrogation. And then they later used that justification for everybody else. But it was written for, you know in the summer of 2002 to justify his CIA interrogation. And Ali Soufan and his book, what he talks about is his trip to Thailand to be, to originally be responsible for Zubaydah's interrogation and then the CIA took over and kicked him out and then that's when enhanced program began. We know that Abu Zubaydah was waterboarded 83 times in the month of August, 2002 alone. And these are all not from, I can't tell you anything that my client tells me, but this is reported in other places that are. So we have the description in the Red Cross of what his interrogations were. He's the only one who was subjected to all of the enhanced interrogation program, all of the enhanced interrogation techniques, because he was the first, so they were trying out all of 'em. He was described by one of the interrogators as the guinea pig. Whereas by the time Khalid Sheikh Mohammed and al-Nashiri, and Bin Attash came along later, they used a much more narrow subset. He was subjected to all of them. And the reason it mattered, well, even if you knew nothing else, it would still matter a great deal. But it is even more significant because of the difference between who they thought Abu Zubaydah was when they picked him up and put him through this and who they now think he is. They now recognize and accept that he was not a member of Al-Qaeda. He had not sworn bay'ah to bin Ladin. He was not ideologically aligned with Al-Qaeda. He had no knowledge of, or participation in any of Al-Qaeda's plots. He's ideologically doesn't believe in the kind of what bin Laden would have called offensive jihad, that is you take the jihad to the infidel, as opposed to defensive jihad, which is, you know you have a right to defend other Muslims wherever they are, but you don't have a right to, you know attack innocent people. The United States after 9/11, didn't recognize those differences. They just didn't understand. And they thought that all training camps were the same and so on. And so they thought that Abu Zubaydah was a big deal in Al-Qaeda. In fact, nothing of the sort, and they now accept that. So the difference between who he was when they tortured him and what they did to him and who they now accept them to be, you know he's never been charged in the military commissions. He won't be. What they know of him is so insignificant compared to-- 

- Who is he then? 

- What do you mean who is he? 

Interviewer: I mean what is it, if he's none those, what is he? 

- Well, I can tell you what's publicly available. 

Interviewer: Yeah. 

- What's publicly available is, you know he's described in the Washington Post as a, you know, a minor personnel clerk, a logistics guy for a different camp. And the reason he was so widely known is that he would arrange travel schedule. Bring people into Pakistan, so he's on the phone all the time. She's on the phone all the time, so obviously he's not a maher. And you know it's frustrating because I am one of the few people in the world who actually knows what was done to him, and knows the interrogation techniques that were done and what effect that they had. You know, just what psychologically waterboarding meant or, you know I mean, they suspended him from hooks in the ceiling. I mean, people you can say out loud is that torture? Hmm, I don't know, let me just rub my chin a little bit. I don't know? It's wrong. They just suspend him from hooks in the ceiling, he can barely, feet dangling on the floor and leave him there for five or six hours, throw water on him. You know he urinates on himself, defecates on himself? Is that torture? I don't know. I'll let you guys debate about that. I'm content with the conclusion that that's not good. That's wrong. I know all the things that happened to him. I can only repeat what's public and that's very frustrating to me. 

Interviewer: Can you tell us, you said, you know what psychological damage. Has he-- 

- I don't wanna suggest, and I'm not a doctor, and a doctor has not been allowed to go see him, that is our own doctor. But I've looked at his medical records and they have given me permission to say certain things. You know he no longer, he doesn't know his own birthday. He can't remember what his mother looks like. He can't remember how many brothers and sisters he has. He can't remember his father's face. I mean, he's just sort of the world is gradually going dark for him. He's had over, it's not quite as bad now, lately, but when he first got to Guantanamo he had a period where he had over 300 seizures. He would just have these, he has this acute sensitivity to sound. Like we're in a room that's fairly quiet. And he would be insane about the sound of the fan. It's very, it's a very strange thing. And it just, you know, it sends him into this, I don't know. But he has these, loses consciousness. I mean the records are replete with him, you know, the guards going into his cell with the smelling salts and waking him up. He just... Less of a problem now. 

Interviewer: Why won't they let the doctors see them? Can you tell us? 

- Well you know, getting a doctor down there, getting an independent doctor or doctor who's not with the government down there is a real challenge. And you gotta, you know, that doctor has to have a top security, top secret clearance, and you've gotta demonstrate what its role is gonna be in the case. And there, all I can tell you is that there are a lot of motions that are pending. 

Interviewer: And why, and again, you know, whatever you could tell us, why wouldn't they release him if he turns out to be a very minor figure who is so damaged that he-- 

- Look there are, over half the people at the base now have been cleared for release. Cleared by two administrations, and nobody can get out. So. 

- Has he been cleared for release? 

- That's not public. I can't tell you that. 

Interviewer: Has your sense of Guantanamo changed in now representing Zubaydah and seeing it from that angle given what you saw with Habib? 

- Yeah, there's no question. The thing, no it's, Guantanamo is a number of different units or camps, and not everybody's in the same camp and not everybody is subject to exactly the same conditions. Zubaydah is in a place called Camp Seven. But compared for instance to maximum security units in the United States, compared to administrative segregation units in the United States, conditions at Guantanamo for the great majority of the people down there are vastly better. Much better than they used to be. There's a lot of communal living. It is, it really is a fairly well run prison now, as prisons go. I mean prisons can be colossally cruel places, and it is not as bad as a lot of American mainstream, mainland prisons. The moral bankruptcy of Guantanamo is no longer the conditions under which they are held. It is the fact that many, many people have been cleared for release and can't get out. And that's, and it's become such a political football that it's impossible to release those guys. That's what makes it morally bankrupt in my estimation. 

Interviewer: I know you can't tell us, describe it, I assume, but you have been to Camp Seven then, is that what you're saying? 

- No and no I can't, I'm not saying that. He's brought from Camp Seven to a room where I meet with him. And I'm allowed to say that he's in a place called Camp Seven, but I've never been back to it. 

Interviewer: And so I'll just ask you, that I'm sure we know the answers, have you ever heard of Camp No? Have you ever seen Camp No? 

- I'm not sure whether I've ever seen Camp No. I may have seen someplace that is Camp No that I didn't know that it was. But I've never seen a place that has been described to me as, no one's ever said that's Camp No. 

Interviewer: Do you know anything more about Camp No that-- 

- Only what I read in the papers. 

Interviewer: Okay. You mentioned Jose Padilla earlier. Did you work on his case? 

- No. When, so all of them went up to the Supreme Court at the same time: Rasul, Padilla, and Hamdi. And we were all working together because everybody recognized that the cases were gonna be examined as a set. We didn't realize that Padilla would be... Well some people feared that Padilla would get the result that it did, rather than a merits ruling, just sort of a, you know, no you didn't file in the right court ruling. But they raised sort of a cluster of cases, a cluster of circumstances that it made sense to resolve as a set. So Rasul is foreign nationals outside the country. Hamdi is U.S. citizen captured outside the country, but brought here. And Padilla is U.S. citizen captured inside the country. So it made sense for us to all coordinate and align our presentations. 

Interviewer: You ever visited the Naval brig to see Padilla or-- 

- No, or Hamdi, no. 

Interviewer: Hamdi, and did you ever go to Egypt to see the conditions that Habib-- 

- Oh no, no, no, no, he, as best we can reconstruct, he was in the state security prison. I wouldn't be able to go there. I mean, it's the answer is no, I haven't gone, but I couldn't get in even if I did. 

Interviewer: And you didn't go to any other black site-- 

- Oh, no you can't go to a black site. I'd like to go to a black site. But no, the only other prisons, the only prisons that, other prisons that I went to in connection with post 9/11 work, were not in connection with Rasul. I represented guys who were in Iraq as well on a different case, and I went to see them in the prison in Iraq. It was a U.S. facility in Iraq. 

- You mentioned being Jewish earlier. Did that impact at all in terms of your relationship with either detainee that you-- 

- Never has. Absolutely nothing. Everybody asks that. Everybody asks that. And you know, again, I have to, I can't, if it hasn't been cleared, I can't tell you what Abu Zubaydah says. But I can tell you it's not a problem at all. There are a lotta lawyers who've been involved in Guantanamo litigation who are Jewish, from the very beginning. And in fact, the core, the nucleus from the beginning is, were mostly Jewish lawyers. Me, Michael, Tom Wilner at Sherman and Sterling, Neil Koslow, the nucleus we're Jewish lawyers, which I think is wonderful. Habib, no. It just simply has never been a problem. It's much more of a problem for some American Jews here, than it is for those guys there. 

Interviewer: And did the government ever try to interfere with your meetings with Habib or with Zubaydah where-- 

- Well one doesn't know. There are some indications that there may have been some surveillance. I mean, they do monitor your interviews. They can watch them. 

Interviewer: Do you think they listen in? 

- They say they don't. I think it's very unlikely now, because none of these guys are important for intelligence gathering purposes. I mean, they've been there so long. It's not an intelligence gathering facility anymore. 

Interviewer: Back then, maybe. 

- Back then it wasn't important, but they thought it was, so they might've been treating it that way more. 

Interviewer: And you started saying about the government interference, did you have a story to tell with that or it's just that? 

- There was some indication that they might've been monitoring what, my first conversation with Habib. He later reported to me that after I left one day, you know, you're there for the morning, then they kick you out for lunch and then you come back after lunch. And he said that after I left one day, they came in and were saying something that indicated that they had heard what I had said, what we had been talking about. I'm not quite sure. 

Interviewer: Did that surprise you? 

- No, not initially. I mean they were still really freaked out about us going down there. You know, I mean, when we, they were still trying to interfere. You know when Tom Wilner first went down there, that's when his client said to him that they had, an interrogator had come to him, to the to the client, and said, why are you trusting this guy? He's a Jew and he works for a Jew firm that, you know, represents the state of Israel. What are you, you know? Most of these guys are they scoff at things like that. They just think these are childish attempts to frustrate relationships. They think these guys must be, you know, what do you think I'm a five year old? What do ya, come on. But they were still trying. They don't anymore. 

Interviewer: You had mentioned that you don't think closing Guantanamo is such, is the issue for you is as it is for a lotta people, that it's really, it really is a different kind of issue. Could you describe, discuss that a little bit, why you say that? 

- Well, there's no question that Guantanamo has become a symbol. And to the extent that it's a symbol, it is bad to keep it open, because it's bad for national security, right? The existence of the symbol is a recruiting tool. It fosters anger and so on. It's a bad thing. You don't have to feel as though you are kowtowing to international opinion in order to remove symbols, to alter symbols. However, if you alter the symbol and create a situation that in fact has the appearance of legitimacy, but in reality is worse, in the conditions they're in, well then, all you've done is alter the symbol. And in fact, the lives of the clients are our worse. Well who who would advocate for that? Then it's only purpose has been symbolic. Then there's the move, the only purpose of the move has been symbolic. Well, I'm not into symbols. I'm not in a sort of symbolic gestures. That would be an empty hollow gesture. 

Interviewer: It would take Guantanamo off their radar, though wouldn't it? 

- It's already off the radar. I mean, domestically, I mean nobody pays attention to it anymore. 

- And did you expect Obama to close Guantanamo when he was elected? Did you think that? 

- Yeah, I did not foresee two things. I did not foresee, what people tend to forget, is if you go back to late 2008, second half of 2008, the bipartisan consensus in favor of closing Guantanamo, people forget how deep that appeared. Every, you know throughout the campaign, every Republican candidate, certainly every Democratic candidate, favored closing Guantanamo. The only one who didn't was Mitt Romney, who's famously said, I wouldn't close it, I'd double it. And everybody thought he was just a nut job who was saying this for the sake of the Republican base, the real radical right wing base. That he couldn't really believe it either, no one who was really smart could believe it. Polling data showed that most people wanted to have it closed. Which is natural, I mean, if a cultural elite says we should close it, we should close it, we should close it, Americans will think, oh yeah, we should close it. I did not expect the backlash against the announcement that Obama made. Obama didn't either. And what's worse, I didn't expect Obama to retreat from his position so quickly. I mean, as soon as he got push back, he just abandoned it and he walked away from the one person in his administration who was most behind it, which was Greg Craig, the White House Counsel who lost his job. So he gave up the narrative, and he's been paying the price ever since. 

Interviewer: Why do you think he gave it up? 

- Democrats have been doing that since Truman. They will allow national security judgements to be driven, not by expert national security assessments, but by perceived political weakness. 

Interviewer: But couldn't he have seen that coming? I mean-- 

- He could've and he should've, but this is an assessment that Democrats have made since Truman, that it is not in a Democrat's interests to stake an aggressive claim and try to shift the narrative on national security, because that is a ground. This is their assessment. I'm not saying it's right, I think in fact it's wrong. But it is their assessment that doing so plays into a Republican argument. And they would say they would say we were right, Joe, because look national security is not an issue for the American public anymore. You know that, in my estimation, is a miscalculation, because it is part of what has so enervated the left, which was the group and young people. It is one of the things that they feel, well he's just a politician. It turns out he's not a change agent after all. He's just a guy. I mean he was always just a guy, and it was unfair to think that be more than just a guy, but if he was aggressive about the same, if he was aggressive about the narrative that we thought he believed in, A, he thinks it would turn the country against him. He's mistaken. That's the calculation they make, but he's mistaken and B he'd at least keep what constitutes the left in the United States invigorated. 

Interviewer: Did you know Greg Craig? Did, so did he tell you that's why he got, he lost his job? 

- No, no. But it was obvious. Greg really was our ally there. He really did agree, well he claims that Obama did too, really agreed with us. And he went to bat for it. I mean he drafted the executive orders that were issued January 22nd. 

Interviewer: And sending the Uyghurs to D.C., he was behind that too? 

- That I'm not sure of. I don't remember whether that was, I know that was a big deal within the administration, but I'm not sure who. 

Interviewer: So you're telling us you're disappointed too? 

- Sure. 

- We are and how do you see, how do you see it going forward? Do you think it'll change at all? Or you think this will just remain foreseeable future if everybody's afraid of national security issues, they just won't touch it. 

- So what you're really asking me there, it seems to me is when will the war on terror end? And I'll tell you what I think, which you know that and 3 1/4 will get you a latte. It will end when we turn our attention and start to and feel a need to demonize China. There's only room for one worst of the worst. And if China becomes the worst of the worst, then for instance, we'll say, well you know it's godless communism after all. And we'll suddenly remember that Islam is an Abrahamic religion, and you know, they're really just like us. They're not like those godless communists. So then we'll find somebody else to demonize. 

Interviewer: Looking back at your last 10 years, Joe, how would you feel like you're glad, even though some of it has been very disappointing, some have been successful? How does it feel in your life in terms of how you look at your life with that period compared to the work you were doing before? 

- Huh? When I was younger, when I was a young lawyer, I used to say that I'm not a person who deals much in regrets. I just, you know, one makes one's decisions and you move on. I no longer say that. I now say that I feel filled with regret, and the greatest regret in my life is becoming a lawyer, my greatest professional regret. I don't, I think we made mistakes in Rasul, or not just Rasul, but all the post 9/11 litigation, we made mistakes. The case was litigated pretty well and you know, we won and that's not how you measure it. If you do progressive work, you win, you lose has nothing to do really with whether you litigate well. The cases aren't decided on those levels, they're decided on a political level. We made strategic mistakes. I regret that we... The way that, the book that will be written about Rasul eventually is this is an example of the rule of law triumphing and this is an example of us not losing our way in a moment of crisis. This is how it's supposed to work and, you know, all honor to the Supreme Court for doing this and doing Hamdi and doing Hamdan and Boumediene and you know, this is a much more... And so you are, the case is appropriated and made into this myth, which is a lie. And I regret not being able to make plain that if the real objective of this litigation was, and this was the objective, to act as a meaningful restraint on executive power, to prevent abuse by the executive of the most vulnerable in society, in that we have affected no change at all. In fact, there are no restraints on what the government does. You don't want to hold 'em at Guantanamo, you hold 'em at Bagram. You don't wanna hold 'em at Bagram, you hold 'em at a secret site in Somalia. Our ability to use the law and the symbols of the law, the Supreme Court, the Constitution, these are just symbols, to act as effective barriers against the, an overzealous executive, has been a complete failure. And the only thing that keeps it from getting, going back the way it was is, you know we have a President who declares that he's, he won't let it, as a matter of personal grace. But he ain't gonna be there. And who knows what in fact he's doing. So it's a, so... You know, it would be uncharitable to say the last 10 years has been waste. The last 10 years... I mean, I've, this is something that I, again it will sound self-aggrandizing, it's not meant to be that way. I have been continually involved in this work, the post 9/11 detention challenges, longer than any lawyer in the country, longer than any lawyer in the world, 'cause there was an extended period where Clive wasn't involved, and Michael's no longer really involved, and Steve Watt is involved in other stuff now. So the core, Clive's still involved now, but there was a period where, so uninterrupted period. And it has, what the sociologists would call, it has given me a certain amount of reputational capital, right? People call me up and they call me professor and I publish things in the Los Angeles Times. And I have my position as a result of it. I'm not, you know, a criminal defense lawyer in private practice and blah, blah, blah. And I published a book with this press and that press and so yada yada, yada, those things, there's no question that, you know, there is a certain fraction of society who thinks, well, you know, good for you and honors bestowed upon you. And I would be wrong, that's all personal however, And it's obviously silly to say, you know it has no value to me, and it has no effect. It's why you're taking the time to interview me now, because you think there's something worth memorializing there. But did we do any good? No, I don't think so. 

Interviewer: Well, if you hadn't been there and these cases weren't decided in this direction, would things have been worse? 

- Good question. Hard to know. You know as a result of Rasul, you can sort of set in motion one of those Rube Goldberg chain of events, you know like an exam and a tort question. You know the brick falls from the ceiling and lands on a guy's foot and he throws a hot pallet under somebody else's nose. So Rasul allows people to go to the base, allows people to litigate. It is part of the political pressure that leads to some people being released. It is part of the narrative of abuse of presidential power that was associated with the, you know, the period from about 2000, mid-2002, late 2002, accelerating, growing until about 2008. That was an important period in U.S. history and Rasul is a part of that. And all the detention work that came out is a part of that. And some people are home, both as a matter of the legal decision, that is a judge said, send this man home or as a matter of the political pressure. The administration feels a need to reform the practices and so releases people. How much of that would have happened without Rasul? Hard to know. Because it was a much bigger thing than just one case. What, again, don't think like a lawyer, as a political matter, that is what is it that shrinks the amount of political capital the Bush administration has? Hurricane Katrina is as important as the decision in Hamdan, right? It blackens the eye of the Bush administration and it gives them less space to move and therefore they are less able to resist political pressures in one, coming from one quarter or another. So it diminishes the political stability of the Bush administration. You know, the economic crisis that starts in the beginning of 2008 has some of that same effect, right? It creates a sense that, you know, outta here with this guy, and you don't wanna hear anything about him you don't wanna hear anything he says, and don't talk to me one more word about the unitary executive. That's what got us in this mess. Well you know, is that related to Rasul? Yes, in kind of, you know, (speaking in foreign language) it's this sort of global sense that he's just not for us. And that has the inevitable fact that when a country like, you know, Indonesia comes and says, you know what you really outta release our guys, cause we're sick of it too, finally they say, okay, you guys can go home. So, can Rasul take credit? No, it's part of as a sociological matter, as a political science matter, don't think of it as lawyers, think of it as what effects political reality. Does it contribute? Yes. Is it dispositive? Nothing's dispositive. What's the straw that broke the camel's back? Is that, can therefore you say this straw is that makes all the difference. Well, what about the 62 million that were put on there beforehand? 

- Where's this? 

- We're at 10 minutes on time. 

Interviewer: Where is the strategic mistakes that you made? I don't know that you wanna go into in great detail, but you said you made some strategic mistakes. 

- We did foresee the resilience of the administration's policies, the way it would morph and the prison would change into a long-term detention center. So that was one problem. We didn't foresee the way it would become, we didn't foresee the way the Obama administration would retreat from its view and back off of its narrative. And so we thought having won the election now we'd reaped the benefits. That's an old miscalculation, by the way. I mean, it happened on the left and the right. You know the Christian right was very disappointed with Reagan. So maybe we're no different than them. And we didn't work hard enough to make sure the President maintained that narrative after, or lay the groundwork for the narrative before the January 22nd orders, executive orders. Now, maybe we never could have stopped it, that this is how he was gonna be. I mean it seems to me his philosophy, for much of the first term of his office has been, you know never kick a Republican who's within reach of a microphone. And that's, if that's his philosophy, then you know, there's nothing, so, okay fine then, there's nothing we can do. 

Interviewer: You know, Johnny let me change the record. I only have a few more minutes, but if he's running out of time. So when you said that you regret being a lawyer what exactly would you have done that would've been more perhaps successful or what-- 

- Well, I don't know what successful is, and I wouldn't describe what I do now as successful, but I might've been happier. 

- Okay. 

- And I wish I had been an historian. I was a history student in school, and I wish I had had the courage to go on and get my PhD. But, you know, everybody knows that there's a lot of PhDs who are working as waiters and cab drivers and lawyers can get a job. So I took the path of least resistance and went to law school. 

Interviewer: I think I know how you'll answer this Joe, but I need to ask it. Don't you think you made a difference that you wouldn't have made as a historian? 

- No. Look, I... There's no way people hear this knowing what they think they know about my career, without thinking that it's false modesty. I understand that, I get it. And the likelihood is even if I were, you know a successful academic, that I would be anonymous, completely, utterly anonymous. In fact, for the overwhelming majority of people I'm anonymous anyway I think that I have done some good for some people as a criminal defense lawyer. You know, you get the occasional acquittal or you get a better negotiation than you otherwise would have gotten. But I, you know, in the big arc of history and don't ask me whether it, you know, bends towards justice, I'm not convinced of that. Have I made a difference? That's silly. 

Interviewer: Did Boumediene make a difference for constitutional law? 

- Well yeah. 

- I mean, you know, this Boumediene finally establishes the proposition that okay, we know what, we know a little bit more about the writ of habeas corpus and the reach of the writ. We'd never had an occasion to say, this is unlawful suspension of the writ before. And these guys are entitled to it and you have violated the Constitution in removing the writ from, removing their right to challenge their detention. 

Interviewer: I mean you might have been involved in the litigation, but we'd never know if you were. 

- I was. 

- You were. But Rasul led to Boumediene. It was and-- 

- Boumediene won because we won Rasul. 

- But because of that, couldn't you, couldn't you say that now there's a piece of our history, our law that-- 

- So there's a great... Michael Klarman is a great scholar and he is a scholar of, you know, latter 20th century America, and also a law professor, and writes an awful lot about you know sort of the Civil Rights Movement. And evidently he's writing a book, I hear this second hand, on great cases that triggered massive backlash, which has produced an entire subgenre of literature about whether these cases were a good idea. 

- And the cases I think he's analyzing are Brown V. Board, Roe V. Wade, Miranda versus Arizona, and a fourth one, I can't remember. Might have been Furman versus Georgia. I think those are the four. So... If you think not in terms of winning a case, but in terms of changing a practice, what is the place of these four cases? And I, those are very difficult questions. Those are very difficult questions. There are a lotta people who say that Brown V. Board was a bad idea. 

- And you'd put Boumediene in that selective, it sounds like. 

- You know, I, it's hard. You know, Jackson in his famous dissent in Korematsu says essentially, why did you do this? Why did you bring this case to us? Because you do this, we're gonna screw it up. And then it's the decision we come down with, is gonna lay around like a loaded weapon. And it's, and the next President that comes along, is gonna be able to use that decision. And the practice that you're challenging, it woulda gone away by itself. So stop it. Don't come to us. That's what he says. Okay, fine. Well, what are you gonna do if you're Korematsu's lawyer? What are you gonna do, you go to Fred and you gonna say, you know, Fred, I'm sorry but I can't challenge this because Justice Jackson says you just gotta live with it, 'cause it'll go away by itself. How the heck does Fred know that it's gonna go away by itself? So I don't think we had a choice. I think we had to do what we had to do in Rasul. I think they had to do what they did in Boumediene. And when I say Boumediene won because of Rasul, that's obviously not true, but Boumediene, had Rasul lost, there would have been no Boumediene. And had Rasul been decided differently, Boumediene would have probably come out. You know, but Boumediene is the culmination of not just Rasul, but a lot of things that happen. By the time, Boumediene's 2008, you know that's the high water mark for our narrative. So it's a culmination of... But it's, I believe that it's wrong to view a legal decision, a Supreme Court decision as something that can have this kind of effect. That's just not the way.... You know what that does? It's lawyers saying, oh God, boy law is so important, man oh man, law is important, whoa. And not only that, but the Supreme Court, yeah, all hail to the Supreme Court. Well, that's just stupid. It's just not true. It's not reality. And every sociologist knows it. 

Interviewer: Well, we could have this discussion ad infinitum I'm sure, but I think it's really important for people to hear what you're saying. I think people would also feel that objectively you did make a difference, your group did make a difference, 'cause the fact is it did move law forward and it did release some men from Guantanamo. 

- Yeah, right. It also entrenches the idea that law is responsive, and law isn't responsive. You know, I mean the Marxists would say it's a false consciousness. The Chomsky would say, and I'm not a Marxist. But Chomsky would say, you know the system's gotta let some people win or otherwise it's completely illegitimate, everybody will see it. It maintains its legitimacy by letting a few people, you know, I mean, casinos gotta to let somebody win. Somebody's gotta pull this and it's gotta have three sevens. Hey, hey, I won, it's a good system. If everybody lost all the time, people would stop going to casinos. 

Interviewer: Well, I hope your cynicism doesn't necessarily-- 

- Cynic, you know, if I were a cynic, if I were really, really a cynic, I wouldn't keep doing what I do, but here I am. You know there's still another tree that I can bash my head against. 

Interviewer: And will it be another detainee that you would support or do you think this-- 

- So if Zubaydah were released? I don't know, that's a good question. Let's get Zubaydah out first. One thing at a time. 

- Okay, good. 

- Are there questions I missed Joe? Is there something that you feel important since you're a historian in your heart and your soul that you'd like to share with people 50 years from now? 

- Very curious to know how people look back on this period of 50 years from now. We shall see. But, no. 

- You think it'll be like looking back, it took that long for the Japanese internment to at least be, people apologize? Do you think it'll take that long for us to apologize for what happened, if anyone ever does? 

- I think it will eventually get integrated into this myth of, I call it, the myth of deviation and redemption. The myth of deviation and redemption is society is basically on this liberal trajectory of greater and greater rights, and greater and greater justice. You know, it's the more perfect union. Ours is the only constitution that aspires to a more perfect union. We're already perfect, but we're gonna get more perfect. It's the city on the hill, that's the religious version. So, and the myth is that we're on this path and every now and again, we get confused and we go, we lose, the fog settles in and we take a wrong turn and we, you know, and there's these odd, aberrational, anomalous periods like, oh, slavery and internment and you know, the forced relocation and slaughter of Native Americans, but you know, that's not who we really are and we're back on the path. And so we have deviation and redemption and eventually I suspect that we will integrate this period into that myth, but it's just a myth. And it's unfortunate that it will probably be read that way, 'cause the myth is so powerful that it just sort of, you know, it's this mod that just sort of consumes everything in its path, so that people don't see things for what I perceive to be as they really are, which is much more, much less this sort of one-dimensional trajectory. I think that's just silly. 

Interviewer: Well, I wanna thank you. It was-- 

- Not at all. 

Interviewer: It was very, very worthwhile for us. I really appreciate it. 

- Happy to do it. 

Interviewer: Johnny needs 20 seconds of room tone where we-- 

- We all sit quietly and contemplate, okay. 

Interviewer: So okay, John. 

John: Getting room tone. End room tone.