Interviewer: Okay, good morning. - Good morning. - We are very grateful to you for participating in the Witness to Guantanamo project. We invite you to speak of your experience and involvement with the people who were involved in Guantanamo and still are involved in Guantanamo in 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 observed. And we're very grateful that you came today to share your experiences with us. - Thank you for inviting me. - Thank you. Future generations must know what happened, and by telling your story you contribute to history. If you want to take a break, let us know, and we're happy to do that. And if there's something you say that you'd like to remove, we can remove it if you tell us at the end of the interview. - Okay. - Okay, great. We'd like to begin, if you wouldn't mind telling us your name and occupation, and where you were born. A little bit of your background including your age and date of birth. - So my name is Charlie Savage. I was born in Fort Wayne, Indiana. I'm 41 years old now. I work for the New York Times, and covering among other things, Guantanamo and detention policy issues. I went to college, undergrad at Harvard, and then worked the Miami Herald for awhile. And then went to Yale Law School for a master's degree program for journalists. And shortly after that joined the Boston Globe in 2003 and then joined the New York Times in 2008, where I've worked ever since. - And when you began with the Miami Herald, what year was that? - That was right out of college. I graduated in '98. And I was sick for a while and so I had a delayed beginning, but I started with them in early '99. - And what kind of work did you begin with with them before you got involved in Guantanamo? - I began as a total cub reporter, so I was out in the distant unincorporated suburbs of Miami-Dade County covering zoning board meetings, and suburban police issues. And gradually worked my way up to small cities, and then the Broward County Commission, and then the Miami-Dade School Board. And it was really then when I took that year off for a fellowship at Yale in '02-'03 that I became more interested in national security, and rule of law issues, or more of a specialist in them. That was the year after 9/11. The sort of the first shock had gone through, and people were starting to think about all these issues raised by the government's response to 9/11 through a legal lens. We didn't know yet about warrant-less surveillance, and torture, but we did know about Guantanamo, for example, and some other things like that. And that was a hugely hot topic on the law school campus. We had guest speakers coming in, professors were building classes around ongoing legal disputes. For example, in my constitutional law small group class, we had to write briefs, and do mock oral arguments. And the professor Paul Kahn had chosen a pair of appeals court cases in the third and sixth circuit about the bulk closure of deportation hearings, at the time for these large numbers of Arab men who were being arrested and sent out of the country. And whether that could be done as a matter of the First Amendment and so forth. That was the issue. And so I came out of that year thinking, this was the hot, almost too trivial to say hot. This was the great issue of our time was how was United States understanding of civil liberties, and the rule of law going to change in response to the sort of catastrophic threat of Al Qaeda-style transnational terrorism? Interviewer: Did you go to law school for that purpose because you were inspired by what happened post 9/11, you felt you'd educate yourself on it? - No, that would be saying too much. I was interested in law school and legal issues, generally. My older brother is a lawyer, and I'd always wanted to go to law school. In this fellowship program, and I'm covering police issues and court issues. I did have some hand as a younger reporter covering post 9/11 things. At that point, I was covering the Broward County Commission. And some of the hijackers had been in Broward County, or just North of Broward County before in the flight schools. And I was sort of chasing the FBI around reconstructing their lives in these sort of seedy motels where they had been staying and so forth. And there was a lot of early sort of Homeland security jostling about what are we gonna do about the sea port? Is there too much danger of having these large tanks of jet fuel so close to the highway? And so that was on my mind, but I really, I would have applied for this program. In fact, I might even have applied for it, I can't remember when that application was due before 9/11 happened. But once I was there, I was this sort of crucible, and that really changed my thinking about what I was interested in. Interviewer: So when you came back to Miami, did you go down to Guantanamo then? - I came back to Miami after that academic year was over, so this would be early June of '03. And the only other reporter there who was really interested in the issues that I was now very interested in was Carol Rosenberg, who became my friend. And I had a desk near her, and we constantly would nerd out over these issues. And then very quickly after that she was sent to Iraq, in the Iraq war. And obviously, the invasion had happened in McClatchy, or actually at the time, it was the during the Knight Ridder newspaper chain was sending a lot of reporters over there. And so she, without her there the pressure was whether the Miami Herald would drop the story of Guantanamo. And she and I both very much didn't want that to happen. And she lobbied to let me take over coverage of it. And in addition, while I was there, I had inaugurated, back in '03, I inaugurated a new beat, I proposed and created one on sort of regional Homeland Security issues, which was not one they'd had before. Which was also trying to bring this terrorism post 9/11 issues into the newspaper. I had met, however, at Yale, my now wife, and we had become engaged. And so I was also trying to get out of Miami, because she didn't want to move to Miami. She's a Canadian journalist, and I didn't want to move to Canada. We'd agree, we were gonna converge in Washington. And so part of all of that exercise was also writing stories, and trying to sort of show that I could operate on a national level in hopes of getting a job in Washington. Interviewer: When was the first time you went to Guantanamo? What was your sense of it when you first, the first day you arrived? - So in, I think it was late July, maybe in early August of '03, I went into Guantanamo for the first time on behalf of the Miami Herald. I didn't quite know what to expect. I was flying in on this little strange plane, and landing and they didn't, you know, it was interesting, they didn't check our passports. And the next time I went in they started checking our passports, because they suddenly to get rid of lawsuits, they wanted to stress to the courts that this was a foreign country. But the first time I went in, they didn't check our passports, because they were treating it like an extension of the United States. There was a number of reporters on that trip. Some from foreign media, an Australian film crew, I remember. One of the things that was interesting as I was flying in, they just let us sit, they assigned to wherever in this sort of hopper flight. And I was sitting next to someone that I struck up a conversation with on the plane, who turned out to be an engineer for Kellogg Brown & Root, a subsidiary of Halliburton. And I asked him, "What are you going in for?" And he told me he was going into work on camp five. And I was, "Okay." The first thing that happens once you get in, and you get processed and get your card, when you're now herded with the media, is they give you a sort of a briefing in a old hangar about what are you gonna see? What's going on here? What exists? What's the history so far? And they talked only about camps, one through four. And I raised my hand, I said, "What about camp five?" And the press people professed to not know what I was talking about. And then later I got to talk to the commanding, the JTF commander, General Jeffery Miller at the time. And I asked him about camp five. And he said, "How do you know about camp five?" And I openly told him. And then he openly told me quite a bit about it. So camp five was, at this point, they still just had these sort of hastily thrown up structures of open air, sort of, you know, shipping containers practically. And he explained that camp five was gonna be a concrete-walled prison that they were building. And it was gonna be a much more permanent structure. And he told me it was gonna take six or eight months to build. And then I came back to talk to him a second time, and I asked, "Why is it gonna take so long to build when these others you were able to throw up in a few months?" And that's when he really explained this is modeled after a prison in Indiana, and we have to float in on barges all these pre-formed concrete. And it's gonna have cameras, and electricity, and air conditioning and a control center, and it's gonna be a real prison. And so that became my first scoop about Guantanamo. That this was going to be, basically, this sort of ad hoc policy that the Bush Administration had created sort of on the fly. Because they needed to get all these wartime prisoners out of Afghanistan after the uprising at Mazari Sharif because they'd had to put them somewhere let's put them here. But no one, even they didn't expect this was gonna be evolved into something permanent. And the fact that in the summer of '03, they were making plans to build a permanent, expensive concrete-walled, two-story prison building was the sign that they were pouring concrete around, literally, around this policy, or figuratively, but almost literally. So I wrote that story, and I remember that it was picked up by the wires, and it was replicated around the world. And it was sort of like what, wow, there is global interest in this. This is not just like writing about the Miami School Board where people don't care outside of the immediate environments. Interviewer: What is your sense of Guantanamo simply from that? Just the experience you had of walking through it, even though it was a guided tour of the camp, and the people you saw there? - What was the experience? So, we walked through camp, camps one through three were similar- Interviewer: Was X-Ray still there? - What's that? Interviewer: Was Camp X-Ray still- - No, no, Camp X-Ray was gone within a few months. That was, that was- Interviewer: They didn't take you there. - Well, you went through it, but it was just overgrown with weed, because there was no one living there. So Camp X-Ray was thrown up in January of '02, and by the Summer of '02, everyone had been moved into Camp Delta, which is also known as camps one through four. In camps one through three in Delta were these individual cells in these long, sort of open air passageways. And then camp four was communal living where people lived in, the more compliant prisoners lived in these sort of huts. And eight together and so forth. So you couldn't talk to a prisoner. To this day, you can't talk to a prisoner while you're there. And so they would take you through an empty cell block of one through three, and you could sort of see what the cells looked like. It was, whichever one, they would periodically move the prisoners around, so they could do maintenance, repaint and whatever. So you could see what it looked like, and here's what's in a typical cell. And here's the arrow on the floor that points to mecca so they know which way to pray. And around you the men in other cell blocks knew you were there, and sometimes them would be shouting. You couldn't see them, but you could hear that. And then in four, which is the communal area, you could see the detainees sort of from a distance. And they would sort of be looking at you, and you'd look at them, but there was no way to communicate. Interviewer: So after that first piece, how soon did you go back to Guantanamo? - So I right after that, and that story helped a lot. Actually I did two stories, one about the camp five and its significance. And one was more of a feature about what is life like inside, what's the scene? What's the look like, just what is this bizarre place? Those two stories, which the Miami Herald gave very good play to, helped me get a job at the Boston Globe. So I then left, I went to on my honeymoon, I got married. I thought I was gonna have to come back to Miami, even though my future, now wife, had already gotten a job in DC. And I remember, we were on our honeymoon in Banff, in Canada. And that was when the Muslim chaplain at Guantanamo, James Yee, was arrested and accused of being a spy. And what was interesting about that was he was one part of the tour that I had just been on. So this is September of '03, that was August of '03. So you go, you meet the Muslim chaplain, and he just tells you, what's it like to interact with these detainees. And it was a really boring interview at the time. But I had it, and the tape of it, the transcript of it in my laptop. And we're on our honeymoon, and suddenly he's arrested for being a spy for Al Qaeda, which was not true, but that's moot. And suddenly, this seemingly mundane discussion of his attitude towards the detainees, and how he just tries to help them with Islam, and not think about why they're there, or whatever, became incredibly interesting. And my wife is also a journalist as I mentioned, was like, "You've got to write this." And so I wrote a story about Jim Yee from my honeymoon. And then I got all kinds of ribbing about that from my colleagues, when I got back to the Miami Herald to, what a nerd I was. But while I was on that honeymoon, the Boston Globe called me and offered me a job in their Washington bureau, covering these sorts of issues along with the Department of Justice and Homeland Security. So by October, I had moved to the Globe. And later that year, the end of '03, I went down to Guantanamo again, now, on behalf of the Globe to do, 'cause they hadn't sent someone there before to do another sort of big, what's up with Guantanamo? So that was the second time I went down. Interviewer: Were they, can I make a quick mic adjustment? - Sure. Interviewer: We are up. Was the Boston, I shouldn't ask you this, and you can, but was the Boston Globe as supportive as the Miami Herald in terms of stories about Guantanamo? - Well, yes and no. It's sort of hard to give a simple answer to that, because the level of news interest in Guantanamo in 2003, 2004, might be different than '08, '09, 2012, 2016, and ongoing. I mean Guantanamo was still a huge story when there were 600 or 700 people there, and it was still not clear what was gonna happen. And the Supreme Court was deciding whether or not there was jurisdiction. And over time I think, the basic facts of it have sort of stabilized, there was a different narrative, which was, is Obama gonna succeed in closing it, or not? By then I'm not at the Globe anymore. And that sort of ran its course, as well. I think that Miami Herald is unique in being willing to invest the resources to have Carol, my friend, cover it in person. Even though now you can just watch proceedings from the military commissions at least remotely, without having to go to the expense and trouble of getting to the base. But wanting to have her there soup to nuts. And so she's performing a unique service in that. For me, it has been especially, well, actually at the Globe, but also the Times as well, it's one of many things that I focus on. I'm interested in Guantanamo, and I periodically check in on it. And if something important happens I'm gonna cover it. But I'm also working on drones, and I'm also working on surveillance, and I'm also working on secrecy and leak investigations, and all the, and war powers. And all these sort of consolation of, to me, national security legal policy issues that are raised by the post 9/11 world. It's not that I'm covering GITMO full stop. And I'm not sure that I would want to there. I mean, Carol's a saint. It's a grind. She spends a huge amount of her life getting to and from, and living in a tent down there. And a lot of, especially the military commissions coverage, it's a system that sort of spins its wheels, and nothing really goes off on tangents for long times. It's the opportunity cost of focusing on it exclusively. It's not just that the, the papers I've worked for have been less interested than the Miami Herald, but I think that is part of it. Part of that is that SouthComm is a local story for Miami. But it's also just, you know, what else could you be writing about today? There's a variety of interesting things happening in this space of which Guantanamo's one, has sort of been my attitude. Interviewer: Well, can you just say how important is Guantanamo in the last generation, or the last 15 years in terms of waking, describing their security issues? - Well, it's a hugely important symbol, first of all, of the wrenching changes to international law, and the country's sort of image of itself. On the other hand, calling the word a symbol, and it's hugely important for the men who are there. And it's a symbol around the world of what the United States evolved into after 9/11. On the other hand, far more people were held at Bagram Air Base under very similar circumstances than were ever brought to Guantanamo. To say nothing of the various prison camps in Iraq at the height of the war there. And to say nothing of the more extreme prisons with fewer people in them that the CIA ran around the world. So it depends on how you look at it, I suppose, in sort of weighing GITMO versus detention policy, interrogation policy, terrorism prosecutions policy writ large. Interviewer: Well, how do you weigh it? Because in our travels we find that people outside the country are much more concerned about Guantanamo than people inside this country. And of course, people inside this country know nothing about Bagram. So why is that? Why is it that it just doesn't weigh that heavily in America? In fact, I'll just tell you this and you can respond. When we reach out people who kind of work with during, they often say, "I thought Guantanamo was closed." People thought Obama was gonna close it, therefore, they felt, they believed he closed it. And the result is that Guantanamo's not an issue, much of an issue in America, and it is much more of an issue we'd call a symbol outside this country. - That probably has a lot to do with, some to do with media coverage here, versus abroad. Certainly, I've been writing about it, and Carol's been writing about it. But does Joe Average read the New York Times, or the Miami Herald, or tune out? It's also the case that, some of the things that made it extraordinary have... The rough edges have been sanded smooth over time. The notion that the country could hold people there incommunicado, outside of any judicial review, without any kind of process, to make sure they were who they were claimed to have been. That was part of what made, and at the Geneva Conventions, humanitarian protections do not apply to people who are held there. I mean, that's GITMO 2002. But that's not GITMO today, and that's not been GITMO for awhile. The arrival of habeas corpus, the proclamation that the Geneva Conventions come in Article III has to govern conduct there. You know, six from the Hamdam ruling. And the sort of arrival of the habeas bar to provide a conduit to sort of keep an eye on what's going on there. And also, the shrinking, the huge reduction, if not elimination of the detention population there, as Obama has tried to wind it down. And Bush before him tried to wind it down, has I think, contributed, as well, to the outrage that was widely felt in '02. Some of the contributing factors to that have been resolved. Even though the prison remains open. Interviewer: Even Obama says that it's still a black stain on America. And people see that outside, but yet Americans don't. And maybe you're right, not Joe Average doesn't read the New York Times, but apparently not many people care anyway, whether they leave it or not. It's just not an issue. But you still feel the need to keep writing about it. - I see that as a subset of a larger question. I've written two books about national security, and executive power, and the rule of law, and civil liberties and so forth. I'm very proud of those books. But neither of them sells remotely what a flimsy- Interviewer: John Grisham, for example. - Or some Ann Coulter or something. Even though in terms of, I would say without false modesty, that their value is probably greater. But why is that? It was like someone said to me once that no one thinks about executive power when they're mowing their lawn. To the extent they think about government and policy, maybe they think, "Are my taxes going up or down? Do I feel safe, or is there crime in my neighborhood?" And that's kind of where people stop. Most people. But that doesn't mean that all people are that way. Some of these very fundamental issues about what the country is, and its understanding of the rule of law, and so forth, is hugely important for the people who make decisions. And the people who are engaged in politics and policy. And those may not be the random person you stop in the street who thinks GITMO's already been closed. The random person you stop on the street probably can't name the chief justice, or the vice president. That doesn't mean that you don't cover the Supreme Court, or the White House. Interviewer: So do you see yourself covering Guantanamo in the Trump Administration? - So well, we'll see. Well, yes. But the question is, how much is there going to be to cover? So Obama, we're having this interview three days before Trump's inauguration. Just on Monday, yesterday, the last big batch of detainees that Obama has been trying to get out went to Oman, another 10 guys. There's now 45 men left there. And I think a few more will go before Friday. One more to Saudi Arabia, and a couple to the Emirates for sure, maybe one to Italy. But the upshot of this is that for most of the Obama era, there's been two major stories. There's been the effort, first to turn off, and then turn back on prosecutions before a military commission system. And although that system has floundered, those prosecutions continue. And so those, the need to cover them will continue in the Trump era. And then the other big storyline has been that, when Obama came in he instituted a process whereby six agencies, career civil service people and not political appointees, reviewed every single detainee who was left at the prison when he took over, the 242 men, and sort of racked and stacked them. Here's the people we can let go, here's the people that we can prosecute, here's the people we can neither prosecute, but are too dangerous to let go. The fact that the list of those who could, who were recommended for transfer if security conditions could be met in the receiving country was a very long list. It was huge amounts of Yemenis on them, particularly of people from countries where they couldn't easily be repatriated. Because their home countries lacked a real government, or were in chaos. So these men then found themselves being stuck at GITMO for years, and years and years, even though the government had decided it did not want to keep holding them. Putting aside though, is the prison gonna be closed? Because Obama's plan to close it was just to take everyone else and move them to a different prison. The fact that, which is a very muddy solution to closing it, right? The fact that the government didn't want to be holding these 100 plus guys, and years were passing and then we continued to hold them, was a very clear, I think sort of, moral or governance failure. And the efforts to get rid of the people that it didn't want to be holding, provided an energy to cover it. And it sort of proceeded in fits and starts. Now it was jammed up, and now the Pentagon was blocking it, and now it was unjammed, and big batches were going again. And where were they going? And were they becoming recidivists, or not? And that whole narrative. So that list now, is very, very short. Obama's gonna leave it, he's not gonna get all the guys out on that list, but we're now into the single digits, and will go even smaller. And so the whole effort to negotiate new homes for people the government didn't want to be holding anyway, is a dramatically shrunk story heading into the Trump Administration. I suspected the alphas of Guantanamo closure, the State Department and the Pentagon will be closed, not just because Trump doesn't want to close GITMO, but because they just won't have much to do. There may be one or two guys somewhere that occasionally the government decides it doesn't need to be holding anymore, but not hundreds. That thing, I don't see there being much need to cover in the Trump Administration. The unanswered question is, will Trump start bringing new people there? Obama refused to bring anyone to Guantanamo. Even though he failed to close it he did not add to its population, and he chipped away into it. And he's gonna leave with a little over 40 guys down from the little over 240 that he inherited. Will Trump bring someone there? Will he do it just because to show that he can, right? Or will national security voices around him say, "We shouldn't bring anyone there until these transfer restrictions are lifted? Because why would we tie our own hands operationally from what we could do with someone?" If he does bring people there will the government tell us who they are, by the way? Or will it be a big thing that we need to figure out, who are these people? What are they accused of? How are they being treated? Are we gonna be back in '02, in other words, 2002? We don't know yet. That could be something that provides a great need for journalism. Interviewer: What about the forever prisoners? Does journalism need to cover them? Or are they just basically so much collateral damage? - So your use of the term forever prisoners I think is a reference to the men who are neither facing charges in the military commission system, who are also forever prisoners, by the way, KSM is never gonna be set go. Interviewer: In theory he's gonna be convicted someday. - Right, but he's still a forever prisoner in that sense. The people who are not being charged, but also, are not currently recommended for transfer. So this population is going to be about two dozen by the time Obama leaves office, a little bit more than that. And then maybe Trump will add to it, or maybe he won't. So yes, there'll be a need to cover that if something is happening. Generally, for news, you need something to happen. So you know, they are still there, is not necessarily a story on Tuesday, and Wednesday, and Thursday and Friday. But you know, in the past there have been hunger strikes. Maybe something like that will happen, or Trump will, or will not keep the system of parole-like hearings, the Periodic Review Board, to give them reviews and see whether they still need to be held. So what he does with that structure impacts whether they ever have a shot at getting out, will be something to look at. Interviewer: I want to go back to Trump in a moment. But were you surprised that Obama never closed the prison? - Was I surprised? I covered why he didn't do it. So to ask whether I was surprised, you know- Interviewer: Why didn't he do it, in your words? - So he came in and he said, "We're gonna close it within a year." I wrote huge amounts about this in my book. He set up an agency, people to think about how they were gonna do it, and very quickly, I would say maybe it became clear to them, that there was a cohort of men who could not be prosecuted. Because, they hadn't done anything specific like blown something up. And because, the laws that we generally use to lock up dangerous terrorists who have not yet done something specific, providing material support to terrorism, conspiracy, did not apply, especially, for the material support law to non-citizens abroad, prior to the Patriotic Act, which is October of 2001. But that doesn't necessarily, in their view mean, that if they let this person go, he wouldn't immediately go and kill some people. And so they were faced with this dilemma, with do we let these guys out? And knowing that they're gonna go probably kill some people, as the war is ongoing, when the Supreme Court has said it is lawful for us to hold them, or not? And they very quickly reached the decision, no. If the Supreme Court has says it's lawful for us to hold them, essentially as POWs, the war continues, they're dangerous, we're not gonna let them go. And that meant that closing Guantanamo did not mean letting everyone go who could not be prosecuted. It meant that there was still gonna be essentially a POW camp somewhere, and closing Guantanamo was simply gonna be moving it. And so a lot of 2009 was designed around where are the options? Fort Leavenworth, or Miramar, or Charleston, or could we buy this unused prison in Michigan in Standish, or Thomson, Illinois? They eventually settled on Thomson. But by then, over the course of 2009, the politics had shifted. In 2008 John McCain, and Obama, and George W. Bush for that matter, all thought Guantanamo should be closed. But Republicans in the course of 2009 discovered that shifting positions on Guantanamo from Bush and McCain's to criticizing the Obama Administration for being feckless, and making the world more dangerous, and so forth, was good politics. And then in particular, after the Christmas of '09, attempted bombing of a Detroit-bound airliner by a branch of Al-Qaeda that was based in Yemen, which nearly succeeded. There was a great wave of fear, a renewed fear that Obama's election, and so forth had not ended the war on terror. In fact, they were still out, they literally were still out there trying to kill us. Which was true, they were, as the Christmas attack demonstrated. So that's when support drains away for bringing the military commission cases into the normal court system, and having the 9/11 trial in New York. And that's also when, because there was this Yemen branch of Al-Qaeda that had launched that attack. Obama imposes a moratorium on sending any detainees from Guantanamo to Yemen. Because a huge number of the detainees on the cleared list, cleared, meaning recommended for transfer, not cleared as in innocent, were Yemenis. That meant that there was gonna be a large, large number of people who were not gonna be transferred in the near future. And that was the death knell of the effort to close it in the sense that, as part of that politics, then Congress imposes a ban on bringing people to the United States. And that's the end. And until Congress lifts that law, or if Obama had been willing to violate the law, in a George W. Bush like way, saying, "I'm the Commander in Chief, and the statutes can't bind my decisions about war time matters." Which Obama and the Left had been a huge critic of when Bush did that, then he was stuck at that point. Go ahead. - Sorry. - So in hindsight, and he has said this, if he really wanted to close GITMO with his planned of relocating these men to a different prison, he should not have waited. And had this sort of slow, carefully, prudent, methodical policy analysis of the pros and cons, and what are the issues, and what do we need to do? Will we need to build something here, or what legal issues will be raised? He could have capriciously ordered the military to put them on a plane in January of '09 and just bring them to Fort Leavenworth, or something. And deal with working through the legal issues and the fencing issues and stuff later. Which would have looked irresponsible in 2009, not knowing how this was gonna play out. Once it did play out, his hands were tied. He whittled it away, and he kept telling, asking Congress to lift those restrictions, and they were not willing to. And that's why he didn't close it. Interviewer: I'm sorry to interrupt, but he signed those military bills that he did that did keep the restrictions on him. He, of course, could have vetoed them all these, done something other than sign those bills, or whatever. Reasons that he did sign them, he did sign his own restrictions, right? - That's true, he did sign those bills. It was not like there was a bill that came to him that said, "You can't do this." It was 1,000 page bill that said, we're gonna keep funding the military, and by the way, you're fighting a war in Libya, and Afghanistan and Iraq, and here's all this other stuff. It would have, you know, when Congress wants to pass something and they're gonna add it to every single bill they send you, the question is whether that's the thing to go to war over. Interviewer: Right, right. - And he chose not to go to war over it. Interviewer: Again, and again, right? Going back to Trump. You said Trump might send men to Guantanamo. He also said he might send Americans to Guantanamo. I know the law doesn't permit it now, but do you see that happening, Congress could actually change the law for that to happen? - So Trump, what you're referring to is that Trump, during the campaign was asked about prosecuting terrorism suspects, and said that he didn't like using civilian courts to do that. And that even if an American was a terrorism suspect, maybe they should be sent to GITMO for a military commission prosecution. So that's sort of one of the complexities of this is disentangling war time detention without trial, at Guantanamo or somewhere else, from the use of military commissions, as opposed to civilian court to prosecute people. And right now the military commissions only exist at Guantanamo, so necessarily it means. So there's no clear law against sending, holding an American in indefinite detention without trial. Bush did that twice. And two appeals courts came to opposite decisions about it, and then before a Supreme Court resolution of that conflict, Bush moved that man into the civilian court system, and so we have none. And there's been this sort of ambiguity floating above detention law ever since 9/11 about whether or not even the intent of Congress was to let Americans arrested on domestic soil be held as war time detainees. And Congress has repeatedly punted, rather than trying to clarify what the rules should be in sort of a great failure in living up to their role of making the law. So that's good. Congress has clearly said American citizens cannot be prosecuted in the military commission system. That's one of the actually time bombs sitting in the military commission system, because to the extent the Constitution applies there. Having unequal rules could be something that an appeals court could use to invalidate any conviction if we ever get to a trial at some point. So Congress would have to change that. The thing about Trump is that, he gets asked, or he decides to say something, and he just says something off the cuff. You don't really know, our experience so far in the campaign transition, you don't really know, is this really something that he really has thought about and thought through? Does the right people is behind it, and everyone's on board, and this is what they're gonna do? Or is it just a thought that sort of goes off and then dissipates? I haven't seen any sign from the few people I know in the transition that they have some well-designed plan, or they're even talking about sending Americans down there? It's the kind of thing, I guess at some point, somebody will be arrested for a terrorism offense on domestic soil, and we'll see what they do. Maybe that will be the point where they actually think about it. But so far that looks like that was an off the cuff comment that he may not have even thought of since. Interviewer: Well, you know he brought up Jose Padir, a name (unintelligible). And I think it's important to understand that that is a possibility under Trump, that seemingly could be more a possibility than under Obama. I mean, on a lot of conjecture, is that something also, we should think about? - It's certainly true that a core tenant of Obama's national security legal policy and philosophy has been a consistent one. There are places where he came in as an idealist, and then compromised in a variety of ways under various pressures. And this one where he never compromised and he stuck with it. Which is that military force, military agencies should not be used to handle terrorism offenses arising on domestic soil. The police does not patrol the street, the military does not patrol the streets of America. So every time a terrorism suspect was arrested inside the United States and was read his Miranda rights, and prosecuted in civilian court, Republicans would attack that decision. Going back to that Christmas 2009 on the bombing attempt, and the sort of political fall out of that, we saw that sort of hardened into a cycle of, because it was very successful in January of 2010 for them. It probably led to the election of Senator Scott Brown, a Republican in Massachusetts, a very liberal state to fill the seat left vacant when Ted Kennedy died. But it didn't really have that much of a shift after that. That was sort of a unique moment it turns out. And Obama stuck to his guns. And so you would get these press releases, and then life would go on. So it will be very interesting to see what the Trump Administration does for that. I mean, one of the reasons the Obama people were invested in the existing law enforcement approach to dealing with terrorism cases that arose on United States soil, rather than sending people to Guantanamo, is that as a practical matter. It's not just that they were human rights idealists, as a practical matter, the national security professionals found that it was very effective. That there were in Article III with courts they could use various tools available as interrogators to induce cooperation without using torture. They could offer credit for time served, and all kinds of other things that aren't available in the military commission system. And they could even use the defense lawyer assigned to represent someone as an ally to say, "You better cooperate, because you know, you're really facing some serious situation here. Maybe you can improve your situation a little bit." And then once someone was convicted, the trial happened quickly, compared to Guantanamo, the verdict was upheld on appeal. The person disappears into the Florence Supermax, and never to be heard from again. While the sort of circus of an attempt to bring even to get through pretrial hearings on a case, the commission system continues to be ineffective. And so it'll be, there are practical, or pragmatic arguments for this let the professionals have totally apart from the political rhetoric about which way was being tougher on terrorism. One of the things that will be very interesting to watch for is how national security professionals in the Trump Administration handle these issues as they arise. And whether they make such arguments and whether they're listened to, or whether there's a desire to show a different approach that prevails over that kind of an argument. Interviewer: I mean if for a really strong argument for the rule of law, which I've seen you've made many times, but it's probably something that not everyone hears. Actually, you've totally really upset me here I must say, (unintelligible) 'cause to see something like that happening again with the Trump Administration, as opposed what you described a really well situation that seems more successful in obtaining intel. You'll write about it. Will the national security people under Trump think about what you just described and understand what you just described, and maybe you should write a piece about it for them to read. Are they as aware as you are of what you just described as to- - You're talking about the career of national security professionals in the government who stay on between administrations they are completely aware. These are going to be the same people. These aren't political appointees. Interviewer: Your sense of the future, and given all that you've done, how do you see that in 15 years, and how do you see us going forward? In your generation, what have you seen has changed? Has a lot changed since 9/11? And how's it gonna unfold to you from all your work? - You know, that's such a broad question, that I don't even know, begin to know how to answer it. I've written two long books about it, so how do I sum that up? Interviewer: Well, is it unique? Is this a unique period to you, because you wrote those two book? Are these 15 years unique to you? Are they any different from what you know in history? Do you think we've really- - Well, yes and no. This is our crisis, this is our generation's defining dilemmas. A lot of it dilemmas, right? That's why it's interesting, and why it's not resolved is there's a lot of things that are not black and white. That is not to say that previous generations didn't have their own. There were equally crises. The arrival of the nuclear age, or whatever. But this is ours, and this is when I'm alive and able to contribute as a journalist, so this is what I'm focusing on. The future of national security, real loss of liberties, the structure of separation of powers, within the government, and the government versus the individual. And the United States' role in the world, and our approach to adherence to, or defiance of international law. And not just that, the world's response, as well, to the arrival, transnational, international terrorism on a scale that was previously unimaginable. It's an amazing period. If Hillary Clinton had won, I think a lot, Obama was leaving a lot of these things in what could have been a fairly stable forum. Bush did all this stuff in his first term, a lot of it lawlessly, based on Commander in Chief claims, that a President need not obey statutes. By his second term, they were starting to, put things on a firmer legal basis, they were getting statutory authority for things. They were stopping doing certain torture techniques that would be impossible to make legal. And they were getting court oversight, and approval and so forth. Obama continued that approach in sort of right-sizing, and maybe a balanced, as they saw it at least, approach to the threat posed by Al-Qaeda and its progeny, like ISIS, that seemed to have certain tenants. Targeted killings using drones away from conventional war zones are okay, but only under narrow circumstances, and let's have all this process. As opposed to willy-nilly bombing, but also as opposed to doing nothing when there's someone sort of lawless badlands, who is plotting an attack, and there's not police that can go arrest that person on our behalf. And we don't have troops on the ground to do it for us. Or we're not gonna have the military police things on domestic soil, but we do accept a limited role of military detention. Especially for these difficult cases of men who are arrested before material support for terrorism laws were expanded to cover their types of actions. Well, let's keep trying to close Guantanamo, and so forth, and we're gonna have surveillance, yes. With the court overseeing it, and statutory authority, not just the executive deciding in secret that it can do this stuff. And you may or may not like that, but it seemed much more stable than it had been in '02, '03, when the sort of immediate chaos after 9/11. And I think we would have seen a Clinton Administration that would have largely have continued that approach. With Trump, of course, coming in, all the sort of winding of things down could be reversed, or not. You know, we just don't know. We're all putting a new chapter now, in which things that seems like they had been settled after a period of dislocation may be, once again, up for grabs. Maybe what happens in the Trump years will cause people to reevaluate what had happened in the Obama years, and so forth, in hindsight. So it's gonna be very interesting. Interviewer: I mean, what you're saying works on the assumption there won't be another 9/11 attack, right? Because that'll change the territory very quickly. I mean, even under Obama, if there was another 9/11 attack, would it be different from what you just described? - Well. Whether or not, in other words, another attack where several thousand people are killed, as opposed to? I mean, we had the Boston Marathon, we had San Bernadino, we had Orlando. Interviewer: You wouldn't equate them to 9/11, right? - No, but they are terrorist attacks on domestic soil that killed a lot of people. I don't know that I would agree. Obviously, it's not like there's one type and then the other, there's a sliding scale. Yes, so any time there's a terrorist attack, even an unsuccessful one, people get scared, and the government power increases. And then when there's a period in which there's not one for awhile, people start to think about other equities. And that's normal, that's natural. Interviewer: Is there something that you want to talk about, Charlie, that I didn't ask you? Like when you came here you're thinking that is important for the world to know? - (sighs) Well, we talked, we flicked at the beginning about my visit to this guy in Estonia? Interviewer: Oh yeah, off camera, sure. Have you tell us on camera. - Yeah, there's something interesting to say about that, I guess. Most of my coverage of Guantanamo has been at the policy level. I'd go down there from time to time and I walk through the prison blocks and I talk to the guards, and talk to the warden. But part of what I'm doing there is just getting color and vivid detail to inform an article about the policy decisions that are being made here in Washington DC. Are we gonna start push harder to let people go, or pull it back? Are we gonna force feed people, or let them starve themselves? Are we going to continue to use the military commission system and defend it and expand it, or try to reduce its size and maybe get away from it? But that's all very abstract, so I go down there and I get color and add to it. And because even when you do go there, you don't get to talk to detainees. You just sort of see them from afar through the glass of a door, or something. I haven't actually had that much experience with the actual human beings who are stuck there. And so with the encouragement of my editors last year, I decided to do a project where I would go track down someone who hadn't talked to the media before. And that turned out to be, and see what their life was like. And not just at Guantanamo, but after Guantanamo. And that turned out to be tricky, a little bit. I mean, obviously I couldn't go, for safety reasons to certain countries. And detainees who had, there were a few detainees who talk to the media all the time. They're kind of media whores, and that's not actually interesting to talk to them redundantly. And then the others ones, you may have found this yourself when you were trying to track them down. The ones who haven't talked to the media have deliberately not done that, and they're trying to keep their head down, and just want to move on with their lives. And the last thing they want to do is advertise to their new neighbors that they're a Guantanamo detainee. Maybe it's not so hard for you, 'cause you're just making it for the archive. But to be on the New York Times and be like, "Hey there, everyone, look at me." So I identified some candidates who, with some help from people who had, inside the government who had been involved. "Oh, you should try this guy, he speaks English well," or whatever. The first few turned me down, and then finally, one Yemeni named Ahmed Khadr, who had went to Estonia a couple years ago. When they finally started resettling in Mid East, and kind of gave up on Yemen. Stabilizing enough that they could repatriate Yemenis, agreed to let me come visit him. And so I went and I spent sort of a week in Estonia, I talked several days, spent all day with him in his apartment or riding the bus around town, speaking to his friends. I went to the mosque with him where he prays, a very small mosque in town. And sort of getting a sense of his life. And he's sort of glad to be out, but also the struggles, he's in this strange place where he's trying to learn the language, he doesn't speak it well enough yet. Although, they do speak English there, he speaks English that helps. That actually may be a crutch for him. Very small Muslim community, so hard to get Halal food. And he sort of misses his family, and hasn't been able to reunite with them and so forth. Larger than that his sort of crippling fear, as he described it that he will be blamed if a bomb goes off somewhere, and they don't know who did it. "Oh, that ex-GITMO guy must have done it." In his mind at least, he was falsely blamed even for being involved with Al-Qaeda, because he was in the wrong place at the wrong time. And he just sort of has trouble leaving his apartment sometimes, because he's just like, what if something goes off? And he gradually got used to going around Estonia, but has not traveled to other countries in the EU, even though he's allowed to. At least on paper, 'cause it's the Schengen zone. Even though he lost his 20s, and would kind of like to see the world, but what if some bomb goes? He likes the fact that he thinks he's under surveillance in Estonia, because that means they'll know if something goes off that he was just, you know, having cereal in his apartment when that happened. The thing that he... So he was a guy who had been sort of a teenager, went to Afghanistan before, went to Pakistan and then Afghanistan before 9/11. Was sort of studying, been kind of drifting around, and started having adventures. And sort of came into contact with the Taliban. There's no accusation that he fought even against the Northern Alliance, let alone the United States. But he sort of had these, he lived in this one house, then he was in this guest house when there was a raid, and so forth. And that was enough. They would have gotten rid of him a long time before, except he was Yemeni, and there was nothing, the Yemenis were all stuck. So he ends up spending 13, 14 years of his life behind bars in Guantanamo. Not really being a significant figure at all. But he comes out and he, part of this is his fear that I talked about about people will, they just hear Guantanamo and this sort of being branded as the terrorist. And also, which he thinks flows into difficulties in getting a job, because eventually the people have to know who he is, and so forth. What he really wanted was a statement of some exoneration from the US Government. We held this guy by mistake, he's not a terrorist. Even though he lost his habeas corpus case. The ties he had to the Taliban and Al-Qaeda were deemed sufficient that he was more likely than not part of Al-Qaeda says the court. After, I'm sure you'll get into it a whole, hollowing out of whether the habeas corpus process had a meaningful chance of getting out people who are being held by mistake. So what was interesting about that was his, there's two dossiers about him, and most detainees, who are still there as of 2009. There's one that the military made and that became public because Chelsea Manning leaked them all through WikiLeaks, and are now on the internet. Including on New York Times website. And so anyone who encounters him, or someone else, it's like I wonder what there is to know about him, types in their name and up comes this thing. And it's full of this, oh, he probably did this. And detainee so-and-so said he saw him there, and that his role was here, right? And some of that stuff is true, and some of that stuff is not true. And we know that some of the stuff is not true, because in 2009 when the six agency task force came in and took a second look at all the detainees who were still there, they took a much more rigorous look at all the evidence. And they cross referenced things that different agencies had in different filing cabinets that had never been put in one place. And they came up with assessments, new assessments, threat assessments of who this person was, and whether this claim that this one detainee said when shown 30 photographs. And said, "Yeah, yeah, yeah those guys were Al-Farouq. Can I have my hamburger now? Look how cooperative I'm being." Is there a reason to believe that this person actually knew what they were talking about? Did they say other things that were corroborated? And they came up with a group that they thought that there was no actual real evidence that they had engaged in terrorism against the United States. Terrorist activity, not just attacks on the United States or against its allies. And this is one of them, this guy. Someone who'd read that dossier told me that this line that indicates there's no actual evidence of terrorist activity, is in his dossier. But those dossiers are still secret, 'cause no one leaked them. You know, that's the closest thing to what he and surely, lots of others who are similarly situation could use. Which is this thing that's on the internet that Chelsea Manning leaked, we, the US Government, don't actually believe seven of these 10 things that are said against this person. In the United States Government's files there is a better dossier that more carefully goes through it, and explains why they think this stuff is true, but this other stuff is not credible. And they're not putting it out. So we have filed, the New York Times and I have filed a Freedom of Information Act lawsuit to try to get those second dossiers out. It's not gonna help some people, because some of it's gonna say, we think it's truth that this guy learned how to build bombs. Or this guy was involved in this plot. But for that group that was really the hardest luck cases, the wrong place, wrong time people, it could do... If the US Government has access to better information than what is floating out there, not through the fault of the US Government, but there it is, anyway, and it has these lingering consequences, that may make it difficult for these people who are out to successfully reintegrate into society, which is truly in everyone's interest. Just from a national security perspective if nothing else, I think that they should make that public. And so we're bringing a lawsuit. And we'll see whether it works or not. But that's another sort of aspect of my journalism about Guantanamo that, you asked if there's something else I would bring up. That's one of them. Interviewer: Was it your idea to bring that lawsuit? - Yeah. Interviewer: And how far has it gone? - So we filed it in the summer. In the fall the government said, this is all withholdable under FOIA, and it's classified. It's internal, deliberative stuff. It was written towards the question, of what should we do with this person? And deliberative materials, classified materials are exempt from FOIA. And I've heard though that they are written in a way that there's like a factual section, and then there's a deliberative section. Here's who we think this guy is, okay, now, what should we do with him? Which would suggest that maybe we have a legal argument that we're, that we should be able to get this first part disclosed, if not the second part. The judge ordered the government to give him, in camera, in other words, only to him, not to us, a few, I think a few, randomly chosen ones. And so the government, just we can sort of get a sense of it, before the next stage. And the government has done that now, that happened in December, and we're waiting for the next thing. Interviewer: How long do you think these FOIA cases take? - Oh, they take forever. If the government fights, they take forever. The government always has the option of just saying, "Okay, we'll give you some stuff." And then that ends the case. They did that a lot, for example, I've read a lot of FOIA cases about surveillance matters after the Edward Snowden leaks. And we didn't have to litigate like this, because the government said, "Let's just pause the case, we will, we're in fact gonna put this stuff out. We're just reviewing it now, as opposed to fighting you." Here so far, they're fighting us. Interviewer: You know, that reminds me, Charlie. Why do you think the Obama Administration, the attorney general's office would challenge every habeas claim on behalf of the detainees that was brought, and they appealed anything that was won in the district court? Why do you think, given your understanding of the Obama Administration, why they challenged every one of those? - I think they really don't... So the administration is heterogeneous, right? There are groups within of litigators and so forth within the Justice Department whose job is to defend the government against any challenge. And so they're pushing to, we have good arguments, we should make them let the judge decide. In addition, within the national security community, the intelligence community, the military, they have genuine security concerns about some guys. You put those two together, and the argument that's made internally is, we maybe let people go, but it should up to us. We should be making this based on our expertise, after our inter-agency deliberations as a policy choice. We don't want to cede control to courts to order us to let people go, even if there's 10 people they order us to let go, we're gonna let go eight anyway. The two that we want to hold onto, we want to hold onto. Therefore, we have to defend against all 10 to avoid creating a structure in which the courts have a say, a broader say in this than they do today. That doesn't mean that these other eight guys don't get out anyway, but they're gonna get out 'cause we say so, not 'cause they say so. And I think that's why, with one exception, they always fought every habeas claim. They didn't fight the Sudanese guy who was so unhealthy. Interviewer: Given that your two books, is that consistent with your understanding of how the executive powers should prevail in terms of these executives taking authority here, when in fact, maybe the courts should be involved? - So that's a normative question about matters that I write about. So that's not either appropriate for me to weigh in, or even how I think about it that much. I'm seeking to understand and explain, here's the dilemma and the different points of view coming in to bear on it. Whereas, opposed to saying what I think, the answer is X. Interviewer: Okay. So you kind of hedged on that, do you see an administration apologizing someday for Guantanamo, since you said this gentleman in Estonia certainly would value that, and would appreciate that, and feels he deserves it? - I'm gonna have to go here in a second. Interviewer: Okay. - You know, I think it was... There's two different things that he wanted, right? And he just sort of threw it out. I don't know even know he had thought through these two. An apology, a clear statement that it was, he was not a terrorist after all. Much, much harder to envision an apology, especially in a situation where courts had upheld his detention, and upheld the idea of detention without trial in this war time context, POW-style detention. Maybe, someday, but not in our, not until these issues are long since settled in history, rather than current events. Just like it took so long for the Japanese, and so forth. But this is also qualitatively different than the Japanese. Those were totally innocent American citizens being discriminated against because of their race. These are people picked up in a war zone, that the courts looked at and said there's a specific reason to hold them. And that it's lawful as a matter of the laws of war. In that sense, it's not the same thing. But I think at least, if the government has already, and I am willing to say this, I've said it already. If the government, in its internal files has determined that guy X was not actually a terrorist, or at least didn't engage in terrorist activity, that leaves this ambiguity about whether maybe they were part of the group without actually doing anything actively. There's a greater chance that it might someday say so publicly. And it has said so publicly about, for example, six guys that it sent to Uruguay. 'Cause the president of Uruguay wanted a statement like that, so they wrote a letter, and pulled out a line out of the reports. Knowing that it was unclassified and that the president of Uruguay was gonna make it public for domestic consumption. So why not do that for the rest of them? Interviewer: So there's precedent to this. - That's right. Interviewer: Well, if there's nothing else, we need 20, is there something else, Charlie that you want to say? - Nope, nope. Interviewer: Okay, we need 20 seconds of a room tone and then we can end this interview. So Johnny needs that. Johnny: Okay, so we just all hold tight for 20 seconds silently. Begin room tone. Okay. Charlie: Is that like you subtract?