Interviewer: Ready? Okay, okay. Good afternoon. And we are very grateful to you for participating in our Witness to Guantanamo project. We invite you to speak about your experiences regarding 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 seen and experienced over the past 8 1/2 years regarding Guantanamo. Future generations must know what happened, and by telling your story, you are contributing to history. We appreciate your courage and willingness to speak with us. If at any time during the interview, you would like to take a break, please let us know. And if you say something you did not mean to say and would like to remove it, please tell us, and we'll remove it. So I'd like to just begin with some general information about you, your name and a little background, Erwin, just so that we have it. - Sure. My name is Erwin Chemerinsky. I'm dean and professor of law at the University of California Irvine School of Law. Before that, I was a professor of law at Duke University, before that, a professor of law at the University of Southern California and what's relevant is I began representing a Guantanamo detainee at USC, continued to just as I was on the faculty at Duke and continue to do so since I've come to the University of California, Irvine. Interviewer: I think it's also relevant if you can tell us a little bit about your history, going back in terms of your civil liberties, civil rights experiences. Just generally, just a few things. - Sure. I'd been a law professor for 30 years. I did public interest law after law school before that. Since becoming a law professor, I've been involved in handling appellate cases. All are civil liberties, civil rights cases. I've done virtually all of them pro bono. I've argued over 100 appeals in various courts of appeals including several cases in the United States Supreme Court. Interviewer: And can you give us just a little background on your schooling too? Do you want to go there? - Sure. I went to Northwestern University and then I went to Harvard law school. Interviewer: So we'd like to begin with your first involvement with Guantanamo. And if you could explain what motivated you, what caused you to get involved? - The first reports of the Guantanamo detainees being brought there were over Martin Luther King Day weekend in 2002. I received a phone call from a civil rights lawyer in Los Angeles, Stephen Yagman. He was very upset at the reports he was hearing of individuals being brought bound, gagged and drugged on military planes, being put in 8 foot by 8 foot cages in Guantanamo. He said somebody should file a lawsuit on their behalf because what's being done violates international law and the United States Constitution. I had worked with Mr. Yagman on many cases before and so was quite willing to work with him again. I did some research over that weekend that it is permissible to file a habeas corpus petition on behalf of another. It's even possible to do so without that individual's consent. I did the research in terms of the likelihood of success in terms of such a challenge and also research in terms of where does such a lawsuit have to be brought. And Mr. Yagman drafted a complaint on behalf of a coalition of clergy members, journalists, and professors and he filed it on an emergency basis in federal district court in Los Angeles on the Monday of Martin Luther King Day weekend. Interviewer: And what motivated you to get involved with him in that? - I shared Mr. Yagman's concern that the United States was violating international law, to say nothing of American law. And I was very concerned there was no one there to represent the detainees. It seemed highly unlikely that they would have family members wherever they were coming from with the means or the knowledge to represent them at this stage. No other lawyers were involved. This was long before the law firms got involved in representing detainees and there was really a sense of, it was us or no one to protect them and to enforce the law. Interviewer: Could you tell us a little bit about what happened after you filed the lawsuit? - The lawsuit was filed on the Monday of Martin Luther King day weekend. My name was on it as co-counsel. By coincidence I was flying from Los Angeles, where I lived, to New York, where I was giving a speech the next day, Tuesday. And when I landed after midnight in New York, I turned on my cell phone and the message box was completely full. It was entirely messages from journalists at that stage, all of whom wanted to interview me. I had invitations to appear on all of the morning talk shows the next day. Now I think the logistics of my speaking commitment made it impossible. I also made the choice that the complaint should speak for itself, that I didn't want to be seen that I was doing this to get publicity. One of the mistakes, in hindsight, was not accepting those media invitations because I think what I missed was the opportunity to say to whoever was listening that the United States wasn't following international law, wasn't following our own constitutional principles. The reality is a complaint is read by relatively few people. I was given a national platform. I didn't use it. And no one was expressing that view at that time. The other thing that happened was when I woke up the next morning, I turned on my computer and I had well over 200 emails. They were the most nasty and vicious emails I think I had received to that point. Many wished me and my family dead. This was January of 2002. It was just several months after September 11th. And I discovered that people were not at all sympathetic to representing Guantanamo detainees or asserting their rights. I found that even people who I knew, who were friends, were enormously critical in me being involved in this case. - How did you respond to those emails and to your friends? - I took the position then, and I've continued to follow it since, that any email that's nasty, I delete, that I don't respond, I don't engage. Any that's a reasoned argument, I'll respond by thanking them for writing but I generally won't engage. And for friends, I will engage and had some very heated discussions with people. Later that week, I was in New York to do a lecture and had dinner with some friends and it turned into very heated discussion of their not understanding how I could represent the Guantanamo detainees and my not understanding how they couldn't believe that these people deserve representation. Interviewer: Did people call you unpatriotic? - And much worse too. There were plenty who called me unpatriotic. Literally, and I'm not exaggerating the least, the ones that said "I hope you and your family die in a bin Laden bombing." There were enough phone calls that day that one of the assistants at school called campus security feeling threatened by the phone calls that came and the campus security came in and investigated me. And my response was, "But I didn't do anything wrong here." Interviewer: How'd your family handle? Did they get any comments or... - At the beginning I was forwarding some of the more outlandish messages to my wife just to sort of share what I was receiving. Then she said she just didn't want to see them. And after that, we just didn't talk about it. I think that I mentioned in passing to a Daily Journal reporter the nature of the email I received and he said, "Send them to me." And I forwarded him a sample. And then I think he wrote a column in the Daily Journal that quoted and summarized these. So there's still some record of them. But to say they were vicious and nasty is a tremendous understatement. To say they bothered me, they really didn't. I mean, I didn't feel personally threatened. I didn't think that anybody was going to come after me. I just hadn't realized the nerve that this touched for people and their sense that the individuals of Guantanamo shouldn't have representation. I mean, it's interesting. Oh, go ahead. - Sorry. We talk now in February, March 2010, which is eight years later. And it's so interesting that just last week, there's sharp criticism from some of the lawyers who were representing Guantanamo detainees so one would think after eight years that it passed but it hasn't completely, so. Interviewer: Did the FBI ever contact you after your name came out or (indistinct). - The only time the FBI contact me was when I applied for my security clearance in connection with representing a detainee and wanting to go to Guantanamo. Interviewer: And subsequently, what happened? I don't want the particulars of the lawsuit, but what happened then in terms of your involvement with Guantanamo, how did you end up getting involved with detainees? - I argued the case in federal district court in Los Angeles in February. Paul Clement, the then deputy solicitor general, flew out from Washington to argue the other side which showed how seriously the government was taking this. The judge dismissed the case and then I argued it in the United States Court of Appeals for the Ninth Circuit in July. Paul Clement, again, flew out to argue for the United States. The Los Angeles Times wrote a story about the argument and the brother of a detainee, Salem Ghareby's brother, Baleid Ghareby, contacted Mr. Yagman and said, "I have a brother in Guantanamo. Would you represent him?" Since ultimately both the federal district court and the Ninth Circuit dismissed on grounds that we didn't have standing, that we didn't have a sufficient relationship with the detainee, this then ended that issue and allowed us to go forward on behalf of a particular individual. So we asked the court whether we could simply amend our complaint, that instead of representing all the detainees we'd represent this one detainee but that the complaint would be the same. The judge said yes, we could do that. And they dismissed the complaint nonetheless. And then we went to the Ninth Circuit and we won in December 2003. Interviewer: What did you win? - The Ninth Circuit ruled that we could go forward with a lawsuit on behalf of a Guantanamo detainee, that we could file a habeas corpus petition on behalf of Salem Ghareby. This is the same conclusion that the United States Supreme Court came to in June of 2004 in Rasul v. Bush, though I can say in all honesty that I was part of winning the first case on behalf of a Guantanamo detainee in any court. Interviewer: Were you ever working with the attorneys in the East Coast on any of these cases, or you were pretty much a loner in all of this? - We started before any of the lawyers on the East Coast were representing detainees. Though by the time the case even got to the Ninth Circuit, the first of the family members had contacted lawyers and had presentation. And certainly after a while, there were many law firms involved in representing detainees. There is a listserv among Guantanamo lawyers, and I certainly benefited from that listserv, at times when the case was very involved and there were certain lawyers who I was in closer communication with and benefited from their counsel and wisdom. Interviewer: And when did you finally get to go? Did you apply to go to Guantanamo soon after that, or when did you first apply? - I applied for security clearance in the fall of 2004, which is after the Supreme Court said that the Guantanamo detainees could go forward with habeas corpus petitions. As is the nature of these things, it took some time for them to process me and gain approval. All I remember is it took a while, and then it took a while to get the schedule, to go down to see my client for the first time. There were many instances of false starts, of scheduling it and they would cancel. Scheduling it, they would cancel. Interviewer: Who's "they"? They being the representatives of the Department of Defense, who I was dealing with. Interviewer: You had to schedule with them? - That's correct. Interviewer: And were you not permitted to apply soon as you had won that case in November of '03? - Well, when we won our case in December of '03, that case, the government then sought cert on, a Supreme Court review on, and that case was held pending the Supreme Court's deciding the two cases from the DC Circuit, Rasul and al Odah. So I don't think anybody was cleared for security clearances until the Supreme Court had decided Rasul in June 2004. And I immediately applied for security clearance then, and after the Rasul case came down, our case also went to the district court. We were assigned to Reggie Walton. Our case was filed in Los Angeles. One of the things that the Supreme Court decided in June of 2004 was that habeas petitions needed to be brought in the district where somebody was held, or if someone's held outside the country, in the district where the custodian was located. So our case got transferred to Washington, DC in the federal district court there. Interviewer: You described some of the problems that DOD threw in front of you. You said you couldn't get your permission so easily. - Obviously the largest was just waiting for the security clearance. It did come, but it took many months. In terms of coordinating visits, I remember having to coordinate with somebody from the DOD and also I think Terry Warden was his name, of the Department of Justice. And they only would allow so many at a time and it was dependent on their windows being available and the like, and there were a couple of instances we would schedule and it would get canceled. And there were certainly instances where I would schedule and then something would come up for me. So it took a while to arrange to be able to get down to see Mr. Ghareby. Interviewer: Had you been in touch with Mr. Ghareby at all? - Well, I had sent him letters to inform him that we were representing him and I was in touch through Mr. Yagman with Mr. Ghareby's brother, Baleid. Interviewer: Do you know if Mr. Ghareby received your letters? - I don't recall. Interviewer: Could you describe the first time you flew down to Guantanamo and what that was like? - Surreal. It's a beautiful island with beaches, but with very bleak prisons there. I remember saying to people that if the United States that built luxury hotels rather than the garrisons that they did there they could have gone a long way to solving the deficit. Interviewer: And what kind of plane did you take and how was the experience when you first got off the plane? - I think it's Sunset Airlines, Sunrise Airlines? But it was whatever the airline is that you take. And if I remember right, you fly to Fort Lauderdale and then change planes. And I was surprised, 'cause I think of Cuba as being so close to the United States, that it's about a two hour flight from Florida to go down there. And one thing that was so interesting is how the military escorts are very young. Every place there's military escorts. And they seemed like kids to me, very officious. I mean, everything is very, very regimented and the lawyers all stay in a different place than, for example, journalists get to stay. Interviewer: Could you describe exactly how that was when you got off the plane, and were you nervous or tense at all? And who met you when you got off the plane and (indistinct) - I don't recall being nervous at all. I didn't feel that I was in any danger going there, given the military presence. The last thing I would feel was any danger. I remember having to, before going there, have a huge amount of paperwork in order. And my main degree of tension was that I screw up and not bringing some of the papers that I was supposed to bring. There were other lawyers there at the same time that I was. And... Interviewer: And then they escort you somewhere when you got off the plane? - They escorted, and I remember going to the, they took us to a barracks where we were staying. And I remember that you can't have a cell phone there but you can buy calling cards and using the calling cards to call home. Interviewer: And how was it the next morning when you went to visit your client? Could you describe that? - I remember having to go over water. I remember you took a boat and then to get from where the lawyers stay to where the detainees are, that you go over water. I remember that the military personnel were very officious. I remember that the other lawyers, at least some of them who were there, only a few had been before and so had more of a chatting relationship with the military officers. And we had a translator with us and I remember being taken to the place where we were able to talk to Mr. Ghareby. And most of all, what I was struck by was the chance to see him. As you can tell, I don't remember that many of the details of the island. I was there and I remember how beautiful it was and how bleak the garrisons but it was really striking where we talked to Mr. Ghareby. It was a dirt floor. He was shackled and chained to his chair. There was a small table not unlike the table next to me. I was there. The interpreter was there. And it was very powerful to see him as a person. One of the things that I've tried to do as I've talked about Guantanamo is to describe as a person 'cause I think it's one thing if it's just the number of people that are there or if they get characterized in some way as terrorists or more accurately, alleged terrorists. But it's another thing to describe them as a human being. He's a man of about my height, about 5'7". He's slimmer in build than I am. He has a long beard graying towards the end. He would often play with his beard as he was talking. He seemed very articulate and eloquent. Of course, we were hearing through a translator. Very soft spoken. His fingers were deformed. Some of his fingers were fused together and the temptation, since it's unusual, was wanting to look and try to figure out what had happened. And he didn't have nails on some of his fingers and the like. He seemed very forthcoming as we spoke. He was very concerned about his family. He's married. He has three children. He'd never seen his youngest child. His youngest child was born after he was apprehended in Afghanistan. And a lot of the conversation with him was just trying to get his story. Interviewer: How were you feeling listening to his story? Was it what you expected or did you not expect anything when you walked in there? Was it very moving? - It was very moving in the sense that no matter how much I knew he was a human being, sitting across from him no further than I'm sitting away from you made him real as a human being. I became involved because I cared about the cause and I was representing people, but now here was the real human being and he was in prison. And he had been there at that point for several years, and now has been there many more years since. Interviewer: Did you think you could help him at that time? - To me, one of the most discouraging things in representing him has been the pace of the litigation. None of the courts has felt any need to expedite this. Here's a man who's been in custody since July 2002. We sit in March of 2010. He's still never really had a meaningful hearing. He's had no trial. And nobody seems to care about the pace of the litigation. The DC circuit, from the time the Supreme Court decided in 2004, doesn't end up deciding its case involving the detainees for a few more years. And so what was discouraging to me then, is discouraging now is just, nobody seems to care that these are human beings who every day are in prison. Interview: Did you see other detainees while you were there? - No. It was very carefully orchestrated. So we were taken by military personnel to the place where he was to be questioned. We questioned him til lunch. He was then taken away. Questioned him again. I know that we were interrupted 'cause he was very devout and he wanted his time to pray at the intervals where there was prayer. And we'd left him alone during that time. Interviewer: When you say "we," was there someone else with you? - There was. There was a lawyer from the Center for Constitutional Rights with me. Interviewer: Who also asked him questions? - Yes. Interviewer: How did you find a translator? - Through her. Interviewer: And did your client believe in you? Did he think you were going to help him? - I don't know. Interviewer: Did he ask anything of you in terms of his family? - He wanted us to get in touch with his family. He wanted to know what we had heard from his brother. He knew that it was through his brother that we were representing him. He wanted to know what we'd heard from his wife. He was receiving letters from her. He wanted to us to try to get word back to her and the like. Interviewer: How did the military treat you during that time? Did they try to block any of the questions? - No. I don't remember if they were in the room, even. They probably were. I don't remember. But no way did they interfere. The interesting thing was, and this was my experience all the time. I tried to take very detailed notes because I didn't want to forget anything. And there were certain things that he was asking us to do and I wanted to be sure to try to do those things that he was asking us to do. And so I was taking notes and you have to have your notes cleared. And- Interviewer: Can you explain that? - Sure. They take your notes away from you. And after they, I'm sorry. Interviewer: At what point? - At the end of each day. They take the notes away and you have to put them in an envelope and you give them to them. And then if they read them and it's all okay, you can have your notes back. My problem is they couldn't read my handwriting. And so I would have to go to the secured facility and dictate so that they could clear my notes because of the handwriting problems. Interviewer: Could you describe what the secured facility is for? - It's a kind of place that's almost surreal. Interviewer: Is it in Guantanamo? - No, the secured facility's in Washington, DC and- Interviewer: So you mean your notes were taken from Guantanamo- - From Guantanamo to Washington. And then you have to go. And the secured facility is just that. It's a secured facility and you can't take things out, you can't bring things in. Interviewer: And who reads your notes there? - Military officials. My notes had nothing in any way controversial but they couldn't read my handwriting so instead of getting them sent back, I would have to go to the secured facility to take care of it. Interviewer: And they didn't redact anything you wrote? - I didn't have anything at all. And I knew when I was taking the notes there was nothing in there that was at all controversial. That it to say, more than anything else, I was there to get his story in his words through a translator. Also, he was very concerned about some things that he wanted to us to do. Some things that to him were most important. And so I didn't expect that. That was a big part of what it turned out that the time spent with him was about. Interviewer: Do you think the military was listening in on your conversation? - I don't remember. I have to admit I accepted whatever was the conditions of the questioning. I don't think so. I think they stood outside of the room during all of the questioning. Interviewer: Was it filmed, the interview? - No. Interviewer: Could you describe what happened after you left the room? Did you just return back to... - I remember we were searched again. Then I remember going to the area where, on that side of the island, where there was a base and I remember there being a McDonald's there and how strange it was to have gone from talking to this man in a corrugated metal hut with dirt floors, where he was shackled and chained, to the banality of eating at McDonald's. And then we were taken again on the boat across the island. Interviewer: Who left the room first, you or the lawyers or the client? - I think we did, if I remember right. I know we also left during times, it was for him to pray and he had a prayer rug there. Interviewer: Could he talk to you, you don't have to reveal anything but he could talk to you about his conditions? - Yes. And we did ask him about his conditions. Interviewer: And his treatment? - We did ask him about his treatment. Interviewer: And none of that was censored in any of the notes you took? - No. And in fairness, you know, it's the teacher in me, I don't remember to what extent in my notes I wrote of those things. I was much more focused on his story and again, the things that he wanted us to do for him. Interviewer: What did he want you to do? - This is the first place where I think it's attorney-client privilege, that I don't think I should go there. 'Cause the things that he asked me would still be relevant today. Interviewer: And why were you so interested in his story? Was it for the case or just- - For the case. I was there as his lawyer and this was my chance to understand, how did he come to be in Guantanamo? And I wanted to know everything he wanted to tell me about, how did he come to be in Guantanamo? Interviewer: Did you learn something more about the whole essence of Guantanamo after this first interview? Is there something there? - I think I can say without revealing anything classified or anything attorney-client privilege, 'cause I'm gonna just tell you my impressions, not what he said, is my impression was... Let me try this in my words. I had no idea why he was there, that it may be that I wasn't hearing the whole story from him or I was hearing lies from him. It may be that he was being sincere and truthful but I really came away without any sense of why he was there. Without giving away attorney-client privilege, I wanted his story from the time he grew up. And I wanted to know up to the moment where he got apprehended. How did he come to be where he was apprehended? And I wanted his sense of why he got apprehended. And I came away with no sense of why he was in Guantanamo. I walked away thinking this could be a very dangerous man or this could be a man who was just entirely there by mistake. Interviewer: Did that surprise you? Were you expecting that kind of response in yourself? - I'm not sure what I was expecting. I certainly didn't expect that if he was a dangerous terrorist he was going to tell me he was a dangerous terrorist. On the other hand, nor did I expect the sense of bewilderment of why he was there that I perceived. Interviewer: So did you go back a second time? - I did. And I think you and I were there once at the same time. Interviewer: Right. - And my sense of dates is so messed up. Interviewer: That was May 2007. - That was the second time I was there. Interviewer: Before we go to the second time, on the first time, did you spend more than one day with him? - I was there two days. I was there two days each time. Interviewer: Could you have spent longer than two days or was that the DOD limit? - I think that was my, in each instance it's being put in with the rest of my life and what amount of time seemed... I think I had the time I needed to get the information that I realistically could get from him. Interviewer: And I have some other questions about overall, but let's talk about the second visit. Was that any different, did you see a difference in the way they government responded to your presence as well as... - No. They blur together to a great extent in my mind which is why it's hard to know which is the first, which second. The only main difference was that the second time, his impatience, he was more (indistinct) He was more interested in what was happening, what were we doing for him. But again, in both instances, very concerned about, were we in touch with his brother, what we'd heard from his wife and the like. Interviewer: Were you able to reveal anything about his family to him? There was no restrictions? - We had a letter from his brother. I had a letter from his brother to deliver that they would not let me deliver. That's the only restriction that I remember, when I went the time that you were there, right. I had a letter from his brother that I couldn't deliver. Interviewer: Were you moved? - Yeah. Same thing. Right. And I knew the second 'cause of the... Right, I've been through it before. Interviewer: I had heard stories that sometimes some of the detainees were told that their lawyers were Jewish and they shouldn't trust them. Have you heard any of those stories or did that happened to you? - I had heard those stories. And in fact, I think some of those stories were circulating right before I went May of 2007, right before one of the times that I went. And I was sensitive 'cause I am Jewish, but I did not find that there was any reticence on his part of talking with me. I do know that other lawyers became involved in this case later and he did not want to meet with them in some of their later visits. And didn't meet with them in some later visits. But I can't say whether that's based on religion at all. Interviewer: Did he trust you as a lawyer from the beginning? Did he believe you were his lawyer and that you weren't a government official? - I would have no way to know that. The only thing I can tell you is that he was willing to talk. He was willing to meet with me, but to begin with, it's so hard when you're dealing with a translator. It's not the same as a conversation because you have the long pause as well, waiting for the translator to translate his words and the long pauses while waiting for the translator to translate my words. And so it makes an unusual conversation to begin with. So many of the cues you can pick up, either for language or cultural reasons, you can't interpret. And it's just such a different situation when you're talking with somebody where that person's sitting with shackles on and you're sitting across from them and the military presence is outside the door. So I have no way to assess the extent to which he really believed I was his lawyer. Interviewer: Was it the same place that you interviewed him the second time with the same dirt floor? - Yeah. I mean, I can't tell you it's the exact same conditions. Interviewer: Did he look any different? Did he look... - More gray. - More gray. - More gray. - He had aged. - He had aged. And it wasn't that long between the visits, you know, a year between those visits. Interviewer: Was his attitude any different to you? - Maybe a bit more aggressive about what was going on and why it was going on. Interviewer: Were you able to communicate with the translator to pick up some of those cultural norms that you couldn't identify yourself? - The translators were wonderful and I just admire them tremendously, but no, I don't think that there was any ability for the translator to be able to pick up. At least I wasn't there long enough or with the translators long enough to be able to pick up those kinds of cues. Interviewer: And it's the same translator both times? - No, it was different translators. Interviewer: Did it make a difference, do you think? - No. They're both terrific. Interviewer: Did you ever go to, none of the meetings you were told that he didn't want to meet with you or there were some other delay or anything? - No. Interviewer: Not in your experience? - During the time that I was there I was always able to meet with him. I was never told he didn't want to meet with me. There was never any problem in that regard. Interviewer: And after the second time, what caused you not to go back since then? - Well, there was a long delay then in what was going on in terms of the legal case, because everyone was waiting for what was going to happen with the Detainee Treatment Act and the Military Commission Act. And then some other lawyers became involved, lawyers from the Center for Constitutional Rights, a lawyer from American University law school, and they then went to visit him. Interviewer: And why would the statute, the legislation and the cases be impeding visits? What were people waiting on? - Well, it wasn't that the statute was impeding the visits. We were waiting to see, what could we do for him. And if you recall, during this time, the DC Circuit ruled that these individuals were not entitled to proceed with habeas corpus and the Department of Justice made clear that if that happened, then no longer were any of the lawyers going to be deemed to represent the detainees, 'cause we were habeas lawyers. If there were no habeas petitions pending, then we wouldn't be able to represent them. And so there was the limbo status of, well, his case was one of those before the Supreme Court, Boumediene, whether we would be able to continue to represent him and what our role would be, was going to depend on what the Supreme Court did in Boumediene. And other than going to see him, to keep him apprised of what was going on, there wasn't anything we could do for him at that stage. Interviewer: How were you feeling about that, watching this whole thing unfold? - Well, if you recall, the Supreme Court initially denied cert in Boumediene. And I remember thinking then that the consequence of that if the DC circuit ruling stands is that he would no longer have me or Center of Constitutional Rights lawyers representing him. He would then have the military attorneys. Now, they're wonderful military attorneys, but he would no longer have any ability to have a habeas lawyer. And it was very discouraging when the Supreme Court denied Boumediene. And I remember the decision on the part of the Guantanamo lawyers to decide to ask the Supreme Court to reconsider the denial of cert. It's very unusual for the Supreme Court to grant cert after denying cert. Interviewer: So were you discouraged, then, as to where America was going at that point? Did you think that it was just getting worse in terms of representation and the right of habeas? - There's been tremendous discouragement on so many levels about where America's been going since September 11. The Guantanamo detainees who've been there something like Ghareby, for almost 8 years, is tremendously discouraging, but also of course Congress passes the Detainee Treatment Act that says that non-citizens held in Guantanamo can't have access to federal courts or habeas corpus. The Supreme Court in June of 2006 says, "Oh, but that only applies to those brought to Guantanamo in the future." Doesn't apply to those like Ghareby who were already there, which seems a real victory. Congress then comes back with the Military Commission Act that says non-citizens held as enemy combatants have no right to habeas corpus. The DC circuit then upholds that law, the Supreme Court denies review, the Supreme Court reverses itself, takes the case, And then finally on June 12th, 2008 says that they can't go forward with habeas corpus. Interviewer: Did you think that was a victory for America or for the rule of law? When we finally had Boumediene? - I think Boumediene is a tremendous victory for the rule of law. The idea that individuals can be imprisoned indefinitely without counsel or meaningful hearings is inimical to the idea of the rule of law. I think the Supreme Court here was saying that some law has to apply to those in Guantanamo. To me, one of the aspects of the Bush administration position that's most repugnant was that there was a group of people in a place where no law could apply. Their position was the Geneva accords didn't apply to these individuals and the United States constitutional statute law didn't apply to these people. So the government could do whatever it wanted. That kind of lawlessness is the antithesis of the rule of law. Interviewer: Going forward after Boumediene, are you satisfied with the way the law has gone forward since then? - It's gone so slowly. I'm also very distressed that the plan to close Guantanamo within a year of Obama's inauguration hasn't happened, that the most recent word from the administration is that there's going to be a group of detainees they plan to continue to hold without trial. And these may be dangerous individuals. They may be there by mistake. But how can we ever know without a fair trial? Interviewer: What does that mean to you as a constitutional law professor who's done civil liberties for 30 years? - I deeply believe in the United States Constitution. I believe that the Constitution has served this country incredibly well for over 200 years. There were moments of disappointments and embarrassment, like how the Supreme Court dealt with the interment of the Japanese or the Supreme Court upholding "separate but equal" or the Supreme Court protecting slavery. So I'm not naive in my praise of the Constitution but overall it's worked well. And I think it can work very well here. I don't think we need to have trials and military tribunals. We can use Article 3 courts. I don't think we need to hold people without due process. We can trust due process to come to the right results. And the idea that now for eight years, individuals have been held without due process and the Constitution is disappointing beyond words. Interviewer: Did you think when Obama was elected things would change and are you disappointed with the way he's moving since then? - In some ways Obama has done what I would hope he would do. He immediately renounced torture. Now that doesn't seem like such a big deal, but as soon as he did so, Vice President Cheney was on the news saying we need enhanced interrogation techniques. But even now, it's torture. He also made clear that the United States would follow the law, that he didn't accept the notion that there was a place or a group of people where the law didn't apply. But there's many ways which I've been very disappointed by what the Obama administration has done. That they've not carried forth their proposal to close Guantanamo. Now, to some extent that's not the Obama administration's fault. Congress has passed laws that have limited the ability to bring people to the United States. The statement by the Obama administration they'd continued to have a group of individuals that they would hold without trial seems to me a tremendous disappointment. Their aggressive use of the state secrets doctrine to get cases dismissed and to prevent accountability. The refusal to completely renounced rendition. Those are places where I expected better from Obama. Interviewer: Do you know any more about rendition or state secrets that you can explain to people as to exactly what we're talking about with rendition and state secrets? - Sure. The state secrets doctrine is a principle articulated by the Supreme Court that says that there are some matters that courts should not delve into at all. The most powerful example that I can give as relates to the War on Terror, there's a man named Khalid El-Masri who was apprehended by mistake at the border in Germany. CIA officials in particular had a hunch that he might be dangerous. Apparently this was a hunch based on mistaken identity. He was taken and he was tortured. Finally, after extended torture it was discovered that he made a mistake. "See, I made a mistake, it was mistaken identity." And they dumped them on the streets of Albania. He brought a lawsuit about this and the government said the suit can't go forward because it can reveal state secrets. And the federal district court, the United States Court of Appeals for the Fourth Circuit agreed with the government in dismissing the case. There's the Arar case from the Second Circuit, of a man who was apprehended in Canada and horribly mistreated. And the case was dismissed based on the state secrets doctrine. The Obama administration has continued to aggressively push the state secrets doctrine which then prevents accountability. There's many ways to protect classified information. Suits rarely need to be dismissed in order to do so. Interviewer: So going forward, Erwin, do you think we're going to do better than the last eight years? You see us doing better? - Yes. I think we're doing better and will do better. I don't know that we'll do as well as we should. I think the inclination of the Obama administration is far more to follow the law than it was in the Bush administration. I don't think there are people in the Obama administration like Dick Cheney and David Addington and John Yoo. And so I don't see we're going to have memos coming in the Obama administration legitimizing torture. On the other hand, I worry that the Obama administration, whether it's part of the executive or whether a desire to be post-partisan, isn't willing to go as far as it should. I strongly believe that there should have been some kind of truth commission, something to cover the illegalities that occurred during the Bush administration. And I think for political reasons the Obama administration made the terrible mistake to not do that. So I think there's things we will never know because there wasn't the non-partisan investigation that was required. I was pleased when Attorney General Holder said that there was going to be a trial in federal district court in New York. And now the most recent news as well, They're going to back away and have a military tribunal. I don't think a military tribunal can ever have the legitimacy, around the world, in the United States, that a trial in an Article 3 court can have. Interviewer: Where do you see your role going forward? Are you still representing Ghareby? - I'm one of several lawyers now who's representing Ghareby. A professor at American Law School and his clinic are working at Ghareby's behalf as the Center for Constitutional Rights. So I'm co-counsel, I'm no longer primary counsel. Interviewer: Do you see yourself going back to Guantanamo? - Yeah, if I needed to go back to Guantanamo I'd go back in an instant. If there's anything that I can do for Ghareby, I still consider him a client and still consider myself representing him though there's other counsel who are involved now. Interviewer: Are you involved in any Guantanamo litigation at all or do you see yourself getting involved? - One of the changes in my life over this time is I've become dean of a new law school. And I have discovered that that's a quite all-consuming responsibility and I can't do all of the things that I was doing before and do this. And one thing that I've had to give up is a lot of pro bono litigation that I used to be doing. And so again, if the opportunity presents itself to be involved, I will be involved. One of the great developments since this all started is the presence of so many lawyers representing detainees. So many big firms involved. When I started it was just Steve Yagman and me. Interviewer: Do you think your life has changed because of your involvement in that first case and then your going to Guantanamo? - As I think of the things that I've done professionally that I'm most proud of, being one of the first lawyers to represent Guantanamo detainees, being the first lawyer to argue in court on behalf of a Guantanamo detainee, being the first lawyer to argue in a court of appeals on behalf of a Guantanamo detainee being the first lawyer to win a case on behalf of a Guantanamo detainee, are things that I'm very proud of. Interviewer: Has that changed your life? - I don't know. I mean, changed my life? Probably not. Interview: You're still upbeat. I mean, I get the feeling that you're still very positive about a future in America, a future going forward in that. Do you think something like this could happen again? I mean, we read about it in books and now we lived through it. - Well, we're not over this. The problem I have with the way you phrase the question is it makes it sound like this episode in American history is past. It's not. There's still the people in Guantanamo. Some who've been there eight years. The idea that we're going to keep people in prison for eight years, for their life, without due process is just so abhorrent to what the Constitution is about. I also believe that at some point there's going to be another terrorist attack on the United States. I hope that I'm wrong, but it seems almost inevitable. And I fear that when that happens, that what followed September 11th come all over again. There'll be something like the Patriot Act adopted, there'll be pressure to do things like extreme interrogation, things like Guantanamo. I hope there'll be an administration with a different inclination than the Bush administration had, one more oriented towards the rule of law, but throughout American history when there's been a crisis, especially foreign-based one, the response has been repression, and the events of September 11th have tragically followed that pattern. Interviewer: Do you think even someone like Obama could end up in that situation of repression 'cause the executive has that power and that's just what seems to happen? - I would hope that Obama as a lawyer is a constitutional law professor. We have far more of a commitment to the rule of law than his predecessor, and I'd hope that those he's appointed to high level positions would have far more of a commitment to rule of law than those who occupied similar positions in his predecessor's administration. And there are so many ways in which the Obama administration is better than the Bush administration, but there are too many ways where it's continued the policies of the Bush administration. And it's very disappointing. (indistinct talking in background) Woman: No, I would like confirmation. Sounds as though you did not feel that there was obstruction going on from the government towards you, that maybe they were inept and they're very slow, but do you see the overall pattern of how slow things are as obstructionist? - There were many lawyers who I've heard felt that the government was being obstructionist towards them. I never felt that the people in the Department of Defense, the Department of Justice who I was dealing with were being obstructionist towards me. There were instances where things got canceled and had to be rescheduled, but not unduly. So there was always an explanation that made sense. It took a long time to get things done sometimes but I expect that dealing with the government. Woman: Another question. You talked about when you got all those emails and voicemails about being more public about what was going on. Do you have any other regrets in terms of the process of what either you or other folks who are working on this issue could have done differently, to have maybe informed the U.S. public or done something more to bring back the rule of law? - I wish that I had much more aggressively tried to stay in touch with Ghareby. I think there were too many gaps in my communication with him during times that nothing was going on and I think that that was a mistake on my part. In terms of reaching out to the American public, I think that happened relatively quickly, but I wish it had happened faster, I wish it had happened in louder voices, but I think in time, the American public was certainly informed of what was happening. I think the difficulty is that I don't think that the American public has ever been able to see the Guantanamo detainees as human beings, that maybe that'll be the beauty and the brilliance of this project, but the Guantanamo detainees can still too easily be characterized as terrorists and not being presented as human beings. I was so struck when there was the commercials last week in the news and doing some media stuff around them where it was being presented as, "How could these lawyers who represented terrorists now be in high-level positions in the government?" And of course, if anything, I say "alleged terrorists." we don't know why they're there. But I think the fact that they're not presented as human beings makes it too easy to caricature them. And I think that the lawyers who have been to see them share some of the blame for that. Woman: Because why? - I don't think we've done a good enough job to tell their stories, to make them seem human. To the extent that people like me are the ones who have gone to see them, we're the ones who have to describe them. I unfortunately am not very good at descriptions. I would be a terrible person as an eye witness but I still want to be able to tell what this man looks like. Interviewer: I think in every war you always have us against them, right? (indistinct) And that's what keeps wars going, don't you think? - Sure. You go back to World War II and the general who was responsible for the Japanese internment, General DeWitt said, and I can still recite the quote verbatim, "A Jap is a Jap, makes no difference if he's an American or not." During World War I, states like Nebraska prohibited the teaching of the German language. And so there is a vilifying and a caricaturing of the enemy. And it's certainly gone on here. Interviewer: So looking back then, I guess I'll ask that same question again. You could have perhaps done more and other people could have done more and it's easier to say that now, but maybe we all wish... - Yeah, I do especially at the beginning. After a time, there were so many lawyers involved that I think that there was less need. You've written a wonderful book, Joe Margulies wrote a great book on Guantanamo. There were many people writing to inform the American public. There's been plays done about it. The Red Cross has done reports about it. But I think that the unique opportunity that I had and the unique way that I failed was at the outset, that with filing the first lawsuit, I had a platform to criticize what the United States government was doing. And I didn't use the platform. And I made the conscious choice that I was too afraid of being accused of doing this for media exposure. I didn't want to be perceived that that's why I was involved, so decided not to take the media invitations that were there and I made a mistake. Interviewer: People might not have believed you anyway, right? Don't you think? - I think people who sent me the hate mail weren't going to be convinced by anything that I said. On the other hand, there are lots of people who might've been open-minded. And if they had a constitutional law professor explaining to them why it violates international law and constitutional law to do what the United States government was doing, maybe it could impart a shifting public sentiment a bit earlier. That's the platform that I had the opportunity to have in January 2002. And I made the mistake in not using it. Woman: I do have another question. - Sure. Woman: Some people have been able to leave Guantanamo who appear to be guilty. And some people are still at Guantanamo who appear to be innocent. Do you have any sense of what determined whether somebody was able to leave Guantanamo or not? Your client is still there. Do you understand the reasoning? - My sense is, it's all based on intelligence information that the lawyers have no access to, that the government knows things about some of the detainees that never shows up in the Combatant Status Review Tribunals, that causes them to believe that these are the people they should keep and these are the people that should let go. And the difficulty of the secret evidence is that- - It's secret. - It's secret. There's no opportunity to know or to rebut it. So I can say to you in all honesty that I don't know why Ghareby is there. Woman: But overall it sounds as though your conclusion is that most of the folks who are still there are guilty of a terrorist attack. - I have no conclusion. - Okay. - No, I have no conclusion as to whether those who are still there should be there, should be detained, tried or not. Let me be clear. I think everyone is entitled to due process. Everyone should be tried. Whether some who are there should be released without trial whether some are likely to be convicted at trial, I have no opinion because I don't have access to any of the evidence. All I believe is that long, long ago trials should be held with these individuals. And I prefer very much they be trials in an Article 3 court, 'cause I believe that no military tribunal can have the credibility of a federal court. Interviewer: Erwin, I need to ask you one more question here. - Anything. Interviewer: In 50 plus years, did you ever think you would see something like you saw in the last eight years? Having been a historian, having seen over the 200 years of America that things like this did happen? - Every time the United States has dealt with a foreign-based crisis there's been some form of repression. It's taken a different form each time. In World War I, you had the suppression of speech of those criticizing the war, the Palmer Raids rounding up people who were non-citizens. In World War II, you had 110,000 Japanese Americans being interned. During the McCarthy era, you had people losing their jobs and their freedom based on ill-founded suspicion. Soon as September 11th happened, I believed that we would have seen some deprivation of liberties and some repression. I don't think I could have imagined it would have taken the form that it did. I never thought that the United States government would engage in systematic torture as it did. I never thought the United States government would imprison people for eight years and say that it didn't have to provide them due process. But unfortunately I think this, one of the worst patterns of American history, has repeated itself. Interviewer: How will the world look at us 50 years from now? - I think this is a tremendous embarrassment to the United States. It's not possible to go anywhere in the world, as you know, without people talking about Guantanamo, the torture done by the American military. I think to the extent that the United States was a moral leader in the world, especially after World War II and Nuremberg, that's all been squandered and it's not going to be easily regained. Interviewer: Is there something I didn't ask you that you can share with us? - I turn to you. Is there anything else I can talk about that would be useful? Woman: Johnny, do you have anything? Johnny: No, no. Interviewer: It just seems that when people look back at this time, they're going to wonder, how could we be like this? Woman: Yeah, what could Americans do? Those Americans who believe as you do that it's time to restore the rule of law. What would you suggest to them? How do they go about as individuals who are not habeas lawyers, to work on this issue? - Part of the difficulty in rallying public support for the Guantanamo detainees is, it's so removed from people's lives. In my lifetime I thought that the thing that most mobilized people was the Vietnam War. 'Cause as people feared being drafted or having loved ones being drafted, it gave them a personal stake. So few people in the United States have contact to anybody who has contact to anybody in Guantanamo. It just doesn't touch their lives, so it's very hard to mobilize people. Those in Guantanamo have been caricatured as terrorists. There's no sympathy for terrorists. And I don't think for many people there's an instinctive belief in due process. It's "These are terrible people. They deserve what's come to them." And so it's very hard to rally public support for those in Guantanamo. I think that what has to be emphasized is our core values, that our most cherished values are about due process and things the Constitution provides. The other thing that I've noted is I've given countless speeches about civil liberties and the war on terrorism since September 11th. Those in the audience who were most sympathetic to me are those who have served in the military or have loved ones have served in the military. So many times I've heard, "How can the United States expect foreign countries to follow the rule of law, the Geneva accords, when they have American prisoners, if we don't follow the rule of law and the Geneva accords when we have foreign prisoners?" Interviewer: So what can individuals do? They who aren't lawyers, you think? - I think individuals can be most effective by joining organizations. And so I think the organizations like the ACLU and the Center for Constitutional Rights have just been so important. I think individuals also have the ability to speak out to representatives, to senators, even to the President to have voices heard that this isn't my country when it's doing these things, this isn't the America that I grew up believing in. Other questions? Interviewer: I think that if you have nothing else, that was great, Erwin, that was fabulous. Thank you so much. Thank you. Woman: Great. Thank you. (applauding) (indistinct)