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<v Interviewer>Okay, good afternoon.</v>

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<v ->Hi.</v>

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<v Interviewer>We are very grateful to you</v>

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for participating in the Witness to Guantanamo project.

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We invite you to speak of your experiences

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and involvement working in the White House,

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the Bush White House during the early years, post 9/11.

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We are hoping to provide you an opportunity

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to tell your story in your own words

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and people are in America and around the world

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need to be, have, need to understand what happened

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post 9/11, and we welcome your interest in expressing

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your experiences to us.

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We are hoping to create an archive of stories that people

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of the future will be able to observe,

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and we appreciate your coming to join with us.

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If you have any questions along the way,

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feel free to do it.
<v ->Sure.</v>

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<v Interviewer>If there's anything that you want us</v>

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to pull, we can remove it, and if you want to take a break,

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Brad, just go ahead and tell us and we can take a break.

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<v ->You bet.</v>

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<v Interviewer>So thank you, and I'd like to begin</v>

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by having you tell us your name, and where you work

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and also perhaps your age as well as your date of birth,

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where you lived and where you live now jus for the record.

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<v ->Yeah. My name is Bradford Berenson.</v>

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I'm 50 years old.

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I'm currently the head of litigation for

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the General Electric company.

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Live and work here in southern Connecticut.

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<v ->What's your date of birth?</v>

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<v ->Why do you need that?</v>

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I, I, I'm always just leery of putting, you know,

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specific personal identifying information like that

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social security, birth date, whatever,

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with identity theft being the way it is.

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<v Interviewer>It's more for people watching so,</v>

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'cause when they see this, years from now,

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they'll wonder what year we've filmed it

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so we can document that.

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<v ->Sure.</v>

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<v Interviewer>Actually it's 2015, so now we can.</v>

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<v ->Yeah, well, my, my year of birth is 1965.</v>

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<v Interviewer>Okay, perfect, wonderful.</v>

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Okay, and can you tell us where you grew up,

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is comfortable telling you?

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<v ->Sure, yeah.</v>

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I grew up in the Los Angeles area in part

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and in part in the suburbs of Washington, DC.

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<v Interviewer>And a little bit about your schooling.</v>

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<v ->Went to high school in L.A., college at Yale</v>

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in New Haven, Connecticut.

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After a couple of years working in New York City,

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went up to Cambridge, went to law school

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at Harvard Law School and then thereafter

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began my legal career in Washington.

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<v Interviewer>Can you tell us a little bit</v>

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about your legal career?

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When did you graduate and how that led you

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to the Bush White House.

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<v ->Yeah, I graduated law school in 1991, moved down</v>

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to Washington to do a couple of federal court clerkships,

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first with Larry Silberman on the DC circuit,

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and second with Justice Anthony Kennedy

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of the U.S. Supreme Court.

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Following the clerkships, I began work at

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the international law firm of Sidley Austin,

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doing primarily white collar criminal defense,

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but also international litigation

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and regulatory litigation of various kinds.

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Became a partner there in 1999 and left

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to join the Bush White House in 2001,

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really just a few days before the inauguration.

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So I started working in the transition offices a week

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or two prior to the, the first term inauguration

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of President George W. Bush, moved into the White House

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with him and the rest of the original White House staff

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the day of the inauguration and worked there

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for almost exactly two years.

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I left the day that Tom Ridge was sworn in

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as the first Secretary of Homeland Security

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because the policy development and legislative process

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for the creation of the Department of Homeland Security

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was a big part of my responsibilities

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during my second year there.

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<v Interviewer>And what was your position there?</v>

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<v ->I was associate counsel to the President.</v>

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<v Interviewer>And what exactly did you do the year</v>

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earliest, or the early days before 9/11?

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So what were you doing?

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<v ->Yeah, so I think I was hired originally because with</v>

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the example of the Clinton administration fresh

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in everybody's mind, the new White House counsel,

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Alberto Gonzales, thought he might need white collar

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criminal defense lawyers in the White House

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and in the White House counsel's office,

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and I had obviously expertise in white collar

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criminal defense and in congressional investigations.

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So I think that was the skillset

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that brought me to the White House.

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Obviously nothing to do with what ultimately

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ended up being the core of my responsibilities

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in the post 9/11 period, but I had been

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on the steering committee of lawyers for Bush-Cheney 2000,

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became known to the campaign leadership through the course

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of the recount fight and all of the litigation that ensued

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in the Bush v. Gore battles and in Florida

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and ultimately in the Supreme Court and got a call

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out of the blue in December, sometime of 2000

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from Judge Gonzales, asking if I'd be interested

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in interviewing for a position on his staff.

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I was, I did, and was offered the job.

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<v Interviewer>Would you have gone back</v>

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to the law firm if you hadn't?

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<v ->Well, I had never left the law firm.</v>

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I was, I was at the law firm continuously

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from the fall of 1993 up until I left

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to join the White House, and I did ultimately return

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to the law firm after my White House service.

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<v Interviewer>And as things progressed up until 9/11,</v>

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you worked in white collar crime.

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<v ->I did some congressional oversight.</v>

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So when there were congressional investigations,

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subpoenas, demands for information from the White House,

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I assisted with that.

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I also had a lot to do with developing the process

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and system that the Bush White House used

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really for all eight years for appointing federal judges.

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A fellow who's now himself a federal judge

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on the DC circuit, Brett Kavanaugh, and I

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designed the system that the White House used to gather

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and assess, vet candidates, formulate recommendations

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for the President for whom to appoint to

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the federal judiciary and then, you know,

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to pursue confirmation after those nominations

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have been made.

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So did some of that, did some policy work.

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I was responsible for certain portions of,

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of the Justice Department, the Civil Division and others.

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The office kind of divides up oversight

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of other federal departments and agencies.

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I think I had the EPA, I had the Department of the interior.

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So there was plenty of work to do prior to 9/11 on,

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on other things and of course neither I nor anybody else

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imagined how radically the job would change after that.

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<v Interviewer>How many associate</v>

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White House counsel were there?

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<v ->I think there were eight of us to begin with.</v>

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So there was Judge Gonzales who was the White House counsel.

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There was his deputy, Tim Flanagan, and then I think

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there were eight associate White House counsels,

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and that group of 10 really was the core of the,

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the White House Counsel's office.

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<v Interviewer>Just as an aside, is that typical,</v>

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do you know, in past administrations?

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<v ->It varies.</v>

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So that was much, much smaller than the Clinton

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White House Counsel's office had been at its apex,

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but the Clinton White House had an uncommon amount

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of legal trouble focused directly on the White House,

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and so that then grew into a relatively large law firm.

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I think 10 as a, as a starting number for

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a White House Counsel's office in modern times

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is roughly normal.

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Some have been bigger.

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I don't know of any smaller.

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It was a pretty tight knit group.

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<v Interviewer>And where were you on 9/11?</v>

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<v ->I was working at the White House on 9/11.</v>

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At the exact time of the attacks I was up on Capitol Hill

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for a meeting related to judicial appointments.

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It was a breakfast meeting at a restaurant

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called La Colline, which was just steps

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from the Senate side of the Capitol.

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We were meeting with some Senate staffers and we got word

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of the first plane hitting the first tower

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through somebody's pager or device when we were sitting

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at the breakfast table.

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Everybody more or less shrugged it off thinking

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it was probably a small private plane,

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an accident of some sort, but when we left breakfast

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and got into the White House car to return

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back to the complex, the military driver informed us

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that a second plane had hit the second tower,

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at which point I and my colleagues knew immediately

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that this was, was terrorism, and as we drove back

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to the White House, we were, we were coming around

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the ellipse, the South lawn of the White House,

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which at that time was still open

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to normal vehicular traffic, we could see off to our left

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a huge plume of black smoke rising from across the Potomac.

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We didn't know what it was or what had caused it,

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but we had the very definite sense at that moment

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that Washington was involved in the attacks

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as well as New York, and when we pulled up to the gate

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at West Executive Avenue, we were very surprised

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because the gates began to swing open without

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the Secret Service having done any of the normal

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security checks of the car that they do when even

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a White House car is returning, and at first we were baffled

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and then we saw staffers running out of the complex

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through the gate and the complex was being evacuated.

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A member of the uniformed Secret Service poked his head

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into the car, told us that the Pentagon had been hit,

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that there were other planes headed toward the White House,

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that we should immediately get out of the White House car

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into our personal vehicles and get away from the center

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of the city as quickly as we could, and that's what we did.

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<v Interviewer>And they didn't tell you where to go,</v>

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just, just leave?

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<v ->Just leave.</v>

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<v Interviewer>So what happened next?</v>

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<v ->I went home.</v>

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I gave a ride to the woman that I was sharing the car with.

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We got to my house.

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My wife was leaving the city around the same time.

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She'd been working at the Museum of Natural History.

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When she got home, we decided that I would go

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to my children's elementary school, pull them out of class.

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I found a safe place at some distance from Washington

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and upwind of Washington for them to go

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for an indefinite period and I drove them out there.

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It was a farm out toward Hagerstown owned by

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some friends of ours and my own concerns at that time

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were mostly about follow on chemical or biological attacks,

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hence the importance of being upwind of, of DC,

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and once I got them safely established there,

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I turned around and came back into the center of the city,

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rejoined the White House staff, where it was convening

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outside of the White House complex, just a block away

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at the corporate offices of Daimler Chrysler and, you know,

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spent the rest of that afternoon with the rest of the staff

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working on what we needed to work on.

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I had also made arrangements while I was driving back

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with the dean of the American University Law School

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to have access to their law library that night,

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and they were also going to make a law librarian

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and several student legal research assistants

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available to us.

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I didn't know whether we would need that, but I made it

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as a backup plan in case we couldn't get back

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to the complex 'cause I anticipated we might have

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a long night as indeed we did and I spent the night

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of 9/11 working there with Brett Kavanaugh,

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who's the fellow I mentioned before, now a judge

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on the DC circuit, researching presidential emergency powers

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and war powers under the direction of

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the deputy White House counsel, Tim Flanagan.

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<v Interviewer>And you said American University?</v>

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<v ->Yes.</v>

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<v Interviewer>What, and I assume you're saying</v>

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there's a library at the White House,

254
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which you didn't access at that.

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<v ->Right, so no one, no one of the staff was permitted back</v>

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into the White House complex until the following morning.

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There were a handful of people in the PEOC,

258
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in the President's Emergency Operations Center,

259
00:12:46.680 --> 00:12:48.890
underneath the East wing of the White House

260
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during the attacks and their immediate aftermath.

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There are famous photographs of that group

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centered on the Vice President, but the rest of the staff

263
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had been evacuated from the complex and the Secret Service

264
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was not prepared to let anybody back in

265
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until the following morning, but the morning

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of September 12th, we were all back in the complex,

267
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but the streets of Washington DC were like a,

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like they were under a military occupation.

269
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I mean, we had to show our White House credentials

270
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to get past several military checkpoints,

271
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there was a security perimeter pushed rather far out

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from the White House, the morning of, of 9/12,

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but we were all able to reserve resume our work

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in our normal workspaces that next morning.

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Now there were subsequent changes made to

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the officing arrangements because of security concerns,

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but on 9/12, we were back in our, our own offices.

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<v Interviewer>And you and Brett were particularly chosen</v>

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to work on war powers of the President and the other eight

280
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were not or the other seven were not?

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<v ->Well, Tim Flanagan, the deputy, was the one</v>

282
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really directing traffic and assigning everybody

283
00:13:59.644 --> 00:14:02.893
what they needed to look at.

284
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I don't know what the other six were doing that night.

285
00:14:07.110 --> 00:14:09.871
Brett's focus and mine that evening was much more

286
00:14:09.871 --> 00:14:13.650
on statutory powers in the domestic sphere

287
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than Constitutional powers and war powers.

288
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You know, all of that was happening quickly

289
00:14:19.480 --> 00:14:24.150
and simultaneously, but, but we were particularly focused

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that evening on what authorities the President would have

291
00:14:27.700 --> 00:14:30.740
to act on his own to try to deal with

292
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the immediate aftermath and the situation,

293
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for example, in lower Manhattan, so the Stafford Act,

294
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which establishes the Federal Emergency Management Agency

295
00:14:41.240 --> 00:14:44.980
and, and other aspects of federal law.

296
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<v Interviewer>And how did that evolve?</v>

297
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Did you stay on that track or did you move into another?

298
00:14:49.607 --> 00:14:52.010
Stayed on that track to some extent.

299
00:14:52.010 --> 00:14:55.160
I think Brett's work evolved in

300
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the direction of aviation security.

301
00:14:57.450 --> 00:15:01.030
There was legislation passed shortly after 9/11 to try

302
00:15:01.030 --> 00:15:03.595
to rescue the domestic airline industry,

303
00:15:03.595 --> 00:15:06.950
provide certain protections, terrorism, risk insurance,

304
00:15:06.950 --> 00:15:07.810
that sort of thing.

305
00:15:07.810 --> 00:15:09.493
He focused a lot on that.

306
00:15:10.350 --> 00:15:15.350
My focus immediately after 9/11 moved to

307
00:15:16.220 --> 00:15:21.220
the financial war on terror, asset blocking orders

308
00:15:21.490 --> 00:15:22.490
that the President issued.

309
00:15:22.490 --> 00:15:27.490
In fact, his first formal action against terrorists,

310
00:15:28.070 --> 00:15:31.343
terrorist groups and others who were sponsoring terrorists

311
00:15:31.343 --> 00:15:36.343
was in the form of an executive order that was blocking

312
00:15:37.440 --> 00:15:40.380
financial transactions and assets of a variety

313
00:15:40.380 --> 00:15:44.510
of designated individuals, some Islamic charities,

314
00:15:44.510 --> 00:15:48.030
some businesses, terrorist organizations.

315
00:15:48.030 --> 00:15:50.990
I think that may have been promulgated

316
00:15:50.990 --> 00:15:53.720
on the 29th of September, 2001,

317
00:15:53.720 --> 00:15:56.610
so just a couple of weeks after 9/11.

318
00:15:56.610 --> 00:15:58.900
There was a Rose Garden ceremony and I think

319
00:15:58.900 --> 00:16:03.900
he described it as kind of the first, the first shot

320
00:16:04.090 --> 00:16:07.277
fired by us in the war on terrorism, and I worked

321
00:16:07.277 --> 00:16:12.277
very closely with counsel from the CIA, the FBI,

322
00:16:12.650 --> 00:16:15.480
and the Treasury Department to get that done

323
00:16:15.480 --> 00:16:17.393
in that very short period of time.

324
00:16:19.036 --> 00:16:21.695
<v Interviewer>And where would you go next?</v>

325
00:16:21.695 --> 00:16:26.695
<v ->Well, I can't remember exactly how soon it was after 9/11,</v>

326
00:16:28.542 --> 00:16:33.542
but issues of how to deal with detainees that we were

327
00:16:34.260 --> 00:16:37.080
gonna capture when we got boots on the ground

328
00:16:37.080 --> 00:16:42.080
in Afghanistan very quickly became another area of focus

329
00:16:42.480 --> 00:16:46.040
for me, not detainee treatment issues.

330
00:16:46.040 --> 00:16:49.460
Those kinds of issues, how to, how to treat people

331
00:16:49.460 --> 00:16:52.478
after they were in custody arose only after

332
00:16:52.478 --> 00:16:54.370
I left the White House.

333
00:16:54.370 --> 00:16:57.790
I left in January of 2003, a few months

334
00:16:57.790 --> 00:17:00.980
before we invaded Iraq.

335
00:17:00.980 --> 00:17:05.590
So none of those detainee treatment issues were salient

336
00:17:05.590 --> 00:17:08.760
or ripe or public, or even came to my attention privately

337
00:17:08.760 --> 00:17:10.173
while I was working there.

338
00:17:11.030 --> 00:17:14.410
Rather the issues I was focused on were,

339
00:17:14.410 --> 00:17:17.830
what do we do when we go into Afghanistan

340
00:17:17.830 --> 00:17:21.103
and we capture a suspected terrorist?

341
00:17:21.103 --> 00:17:26.103
You know, we obviously can't release that person.

342
00:17:26.671 --> 00:17:31.060
Once you've captured someone like that, you can't kill him.

343
00:17:31.060 --> 00:17:34.030
So what do you do? What do you do with him?

344
00:17:34.030 --> 00:17:36.640
And so those, I began to look at those issues as well

345
00:17:36.640 --> 00:17:39.850
along with plenty of other people in the government,

346
00:17:39.850 --> 00:17:42.450
including most especially at the Department of Defense

347
00:17:42.450 --> 00:17:44.655
and the Department of Justice.

348
00:17:44.655 --> 00:17:46.268
<v Interviewer>Is that the working group that?</v>

349
00:17:46.268 --> 00:17:50.200
<v ->Yeah, so, well, the working group was more focused</v>

350
00:17:50.200 --> 00:17:52.730
on military commissions, but it was looking at some

351
00:17:52.730 --> 00:17:54.690
of these broader issues as well.

352
00:17:54.690 --> 00:17:57.690
I assume you're, you're asking about the working group

353
00:17:57.690 --> 00:18:00.090
that was chaired by Ambassador Pierre Prosper

354
00:18:00.090 --> 00:18:01.340
at the State Department, yes.

355
00:18:01.340 --> 00:18:03.547
So that was part of this work.

356
00:18:03.547 --> 00:18:07.132
<v Interviewer>And your mission was to locate a place that,</v>

357
00:18:07.132 --> 00:18:09.780
other than Guantanamo, for housing detainees.

358
00:18:09.780 --> 00:18:13.620
<v ->Well, place was a question that came up.</v>

359
00:18:13.620 --> 00:18:15.600
Location was a question but it was

360
00:18:15.600 --> 00:18:17.440
kind of a secondary question.

361
00:18:17.440 --> 00:18:22.440
The first questions really were, what are these people

362
00:18:23.166 --> 00:18:27.540
in our hands and what do we need to do with them?

363
00:18:27.540 --> 00:18:32.140
So those implicated issues involving the Geneva Conventions

364
00:18:32.140 --> 00:18:35.164
and whether the Geneva Conventions did or did not apply,

365
00:18:35.164 --> 00:18:40.164
how one treated an unlawful enemy combatant, that is,

366
00:18:42.074 --> 00:18:45.420
someone who was not part of the uniform military services

367
00:18:45.420 --> 00:18:48.527
of the nation-state fighting according to the laws of war

368
00:18:48.527 --> 00:18:53.527
in uniform pursuant to the except, accepted standards

369
00:18:53.970 --> 00:18:56.070
of the civilized world for how to engage

370
00:18:56.070 --> 00:18:58.770
in combat and protect civilians.

371
00:18:58.770 --> 00:19:01.900
So we found ourselves, the research was,

372
00:19:01.900 --> 00:19:04.950
from a historical perspective very, very interesting

373
00:19:04.950 --> 00:19:07.800
because a lot of the precedents took you back to

374
00:19:07.800 --> 00:19:11.717
the Civil War, took you back to the Revolutionary War,

375
00:19:11.717 --> 00:19:16.110
took you back to the war against the, wars in the west

376
00:19:16.110 --> 00:19:19.930
against the Native American tribes who, for better or worse

377
00:19:19.930 --> 00:19:22.371
at that time, were not regarded as members

378
00:19:22.371 --> 00:19:26.697
of an actual nation, but really as in effect

379
00:19:26.697 --> 00:19:30.470
irregulars or terrorists or unlawful enemy combatants,

380
00:19:30.470 --> 00:19:32.820
and there were attorney general opinions

381
00:19:32.820 --> 00:19:34.370
from the Indian Wars.

382
00:19:34.370 --> 00:19:37.200
So we began looking at all of that stuff to try

383
00:19:37.200 --> 00:19:41.760
to understand how the legal system had previously coped

384
00:19:41.760 --> 00:19:45.210
with irregular warfare and the capture of people

385
00:19:45.210 --> 00:19:47.710
fighting contrary to the laws of war

386
00:19:47.710 --> 00:19:50.860
and out of uniform as the al Qaeda people were.

387
00:19:50.860 --> 00:19:51.693
<v Interviewer>So you're saying there were</v>

388
00:19:51.693 --> 00:19:55.230
parallel discussions, one on whether the GC,

389
00:19:55.230 --> 00:19:58.090
Geneva Conventions apply and also on finding,

390
00:19:58.090 --> 00:20:00.900
going back to finding some locations

391
00:20:00.900 --> 00:20:02.540
to house the people you're capturing.

392
00:20:02.540 --> 00:20:03.900
<v ->Yeah, and, and, you know,</v>

393
00:20:03.900 --> 00:20:05.570
there were parallel work streams.

394
00:20:05.570 --> 00:20:07.670
Everybody had a somewhat different focus.

395
00:20:07.670 --> 00:20:10.850
So our focus at the White House level, we needed

396
00:20:10.850 --> 00:20:13.910
to understand the, the law and the legal background rules.

397
00:20:13.910 --> 00:20:16.570
We needed to be able to test the departments and agencies

398
00:20:16.570 --> 00:20:20.860
and their conclusions, but as is normally the case

399
00:20:20.860 --> 00:20:23.280
for White House lawyers there was a very substantial

400
00:20:23.280 --> 00:20:26.880
policy component to the work we were doing,

401
00:20:26.880 --> 00:20:29.417
because the question in every case is not only,

402
00:20:29.417 --> 00:20:34.417
will the course of action that we're going to recommend here

403
00:20:34.697 --> 00:20:39.570
and that the President's going to order comply with the law,

404
00:20:39.570 --> 00:20:43.720
whatever legal norms apply, but is it consistent with

405
00:20:43.720 --> 00:20:46.650
what this President wants to do as a matter

406
00:20:46.650 --> 00:20:49.700
of national policy, national security policy,

407
00:20:49.700 --> 00:20:52.457
foreign policy and the like, so there was a heavy

408
00:20:52.457 --> 00:20:56.930
policy overlay on top of the law.

409
00:20:56.930 --> 00:20:58.740
The people in the Department of Defense

410
00:20:58.740 --> 00:21:01.990
and the State Department were the ones really burrowing in

411
00:21:01.990 --> 00:21:05.934
deep and hard on issues related to the Geneva Conventions.

412
00:21:05.934 --> 00:21:09.136
You know, State Department legal advisor is

413
00:21:09.136 --> 00:21:12.440
the preeminent expositor of the treaties

414
00:21:12.440 --> 00:21:14.544
that the United States is a party to,

415
00:21:14.544 --> 00:21:16.663
something like the Geneva conventions.

416
00:21:16.663 --> 00:21:20.010
The Department of Defense general counsel

417
00:21:20.010 --> 00:21:22.000
is heavily, heavily involved.

418
00:21:22.000 --> 00:21:24.305
The Office of Legal Counsel at the Department of Justice

419
00:21:24.305 --> 00:21:27.144
was involved in everything.

420
00:21:27.144 --> 00:21:31.710
So we were, at the White House, more often than not

421
00:21:31.710 --> 00:21:34.840
the recipients of the deep legal research,

422
00:21:34.840 --> 00:21:36.570
analysis, and writing.

423
00:21:36.570 --> 00:21:39.220
We were processing that, learning what we needed to learn,

424
00:21:39.220 --> 00:21:41.390
in order to advise the counsel to the President

425
00:21:41.390 --> 00:21:43.472
so he could advise the President himself

426
00:21:43.472 --> 00:21:47.820
and also thinking through the, the policy options.

427
00:21:47.820 --> 00:21:51.485
So on this question, once, once it had been decided

428
00:21:51.485 --> 00:21:56.382
that these people were unlawful enemy combatants

429
00:21:56.382 --> 00:22:01.382
and that they could be captured and detained indefinitely

430
00:22:02.774 --> 00:22:07.483
subject to minimum standards of humanitarian treatment,

431
00:22:07.483 --> 00:22:10.140
you know, you had to house them, you had to clothe them,

432
00:22:10.140 --> 00:22:14.254
you had to feed them, you couldn't abuse them physically.

433
00:22:14.254 --> 00:22:16.380
You could interrogate them.

434
00:22:16.380 --> 00:22:18.670
You had much more latitude to interrogate them

435
00:22:18.670 --> 00:22:21.790
than you would have someone afforded POW status

436
00:22:21.790 --> 00:22:23.480
under the Geneva Conventions.

437
00:22:23.480 --> 00:22:26.440
That was one of the important implications and advantages

438
00:22:26.440 --> 00:22:30.353
of unlawful enemy combatant status, but once we knew

439
00:22:30.353 --> 00:22:31.630
we were going to be treating them

440
00:22:31.630 --> 00:22:35.340
as unlawful enemy combatants, the question became,

441
00:22:35.340 --> 00:22:39.770
where do we house them, and one option was

442
00:22:39.770 --> 00:22:42.330
to keep them relatively close to the battlefield

443
00:22:42.330 --> 00:22:45.600
in Afghanistan on bases that we might

444
00:22:45.600 --> 00:22:48.450
establish or have there, although we were still

445
00:22:48.450 --> 00:22:51.200
at that early stage a long way from having the kind

446
00:22:51.200 --> 00:22:55.010
of infrastructure in Afghanistan that we eventually had,

447
00:22:55.010 --> 00:22:57.690
so that wasn't considered a particularly viable option.

448
00:22:57.690 --> 00:23:01.410
International law also provides generally that you have

449
00:23:01.410 --> 00:23:06.410
to remove detainees from the hazards of battle,

450
00:23:06.670 --> 00:23:09.749
keep them at some distance from the battlefield,

451
00:23:09.749 --> 00:23:13.470
and things were so fluid in Afghanistan at that time.

452
00:23:13.470 --> 00:23:16.840
The Taliban was still running the place that it

453
00:23:16.840 --> 00:23:21.210
just wasn't considered in conformance with international law

454
00:23:21.210 --> 00:23:23.290
to really keep them in Afghanistan.

455
00:23:23.290 --> 00:23:26.336
So then the question becomes where.

456
00:23:26.336 --> 00:23:29.800
Thought number one was well, maybe you just housed them

457
00:23:29.800 --> 00:23:32.370
in the brig on a aircraft carrier,

458
00:23:32.370 --> 00:23:35.350
sitting in the open ocean somewhere.

459
00:23:35.350 --> 00:23:37.310
My recollection is that there were also

460
00:23:37.310 --> 00:23:40.610
international law problems with doing that

461
00:23:40.610 --> 00:23:42.420
because if you're in international waters,

462
00:23:42.420 --> 00:23:46.010
you're really not in anybody's territorial jurisdiction,

463
00:23:46.010 --> 00:23:49.650
and I can't remember the precise legal problem

464
00:23:49.650 --> 00:23:52.639
with housing people on the oceans,

465
00:23:52.639 --> 00:23:56.663
but that was relatively quickly ruled out as well.

466
00:23:57.630 --> 00:24:00.190
The next obvious consideration as well,

467
00:24:00.190 --> 00:24:01.780
do we bring them to the United States?

468
00:24:01.780 --> 00:24:04.400
Do we put them in the Naval brig in South Carolina

469
00:24:04.400 --> 00:24:07.280
or in Fort Leavenworth or someplace like that,

470
00:24:07.280 --> 00:24:09.920
and there were a variety of reasons

471
00:24:09.920 --> 00:24:14.160
why that was considered inadvisable, and then, you know,

472
00:24:14.160 --> 00:24:18.100
the notion of Guantanamo arose and Guantanamo had

473
00:24:18.100 --> 00:24:22.200
a number of practical and legal advantages that made it

474
00:24:22.200 --> 00:24:24.470
a fairly obvious choice when compared to

475
00:24:24.470 --> 00:24:27.540
the only other realistic alternative we thought we had

476
00:24:27.540 --> 00:24:30.980
at the time, which was to detain them here

477
00:24:30.980 --> 00:24:32.942
on the, on the soil of the U.S.

478
00:24:32.942 --> 00:24:36.900
<v Interviewer>Could you tell us why detaining them</v>

479
00:24:36.900 --> 00:24:39.872
on the U.S. soil was not a good idea?

480
00:24:39.872 --> 00:24:44.609
<v ->Yeah, so as best I can recall, our thinking at the time</v>

481
00:24:44.609 --> 00:24:49.602
started with basic safety and security concerns.

482
00:24:49.602 --> 00:24:54.602
These were obviously exceptionally dangerous people

483
00:24:54.870 --> 00:24:58.210
affiliated with the most lethal terrorist network

484
00:24:58.210 --> 00:25:01.782
in the world which just slain 3,000 Americans

485
00:25:01.782 --> 00:25:06.782
in lower Manhattan, and we did not want to create a target

486
00:25:06.802 --> 00:25:11.479
on U.S. soil near other U.S. citizens that might

487
00:25:11.479 --> 00:25:16.270
draw Islamic terrorists onto our soil,

488
00:25:16.270 --> 00:25:20.190
give them an incentive to burrow into U.S. communities

489
00:25:20.190 --> 00:25:24.350
to try to launch attacks on those facilities

490
00:25:24.350 --> 00:25:26.730
on people who worked in those facilities.

491
00:25:26.730 --> 00:25:31.730
So, you know, we were, we were keenly aware that

492
00:25:32.270 --> 00:25:37.270
then-Judge Michael Mukasey, you know, almost a decade

493
00:25:37.498 --> 00:25:41.270
after he had presided over the the trial

494
00:25:41.270 --> 00:25:43.866
of the first World Trade Center bombing defendants,

495
00:25:43.866 --> 00:25:47.716
still had 24 hour personal security,

496
00:25:47.716 --> 00:25:52.716
and we did not want to put other people, other Americans

497
00:25:53.080 --> 00:25:55.430
in that position if we could help it.

498
00:25:55.430 --> 00:25:58.780
So safety and security for American citizens

499
00:25:58.780 --> 00:26:02.820
and communities probably led the list,

500
00:26:02.820 --> 00:26:07.110
and yet we didn't want these people to be so far away

501
00:26:07.110 --> 00:26:12.110
from the United States that we couldn't have access to them,

502
00:26:12.570 --> 00:26:15.530
policymakers couldn't have access to them,

503
00:26:15.530 --> 00:26:18.150
frankly even the press and human rights groups.

504
00:26:18.150 --> 00:26:21.980
We thought that there was an advantage to having them

505
00:26:21.980 --> 00:26:23.510
close to the United States.

506
00:26:23.510 --> 00:26:25.959
There would be better oversight and control

507
00:26:25.959 --> 00:26:28.390
of what was happening to them.

508
00:26:28.390 --> 00:26:31.680
There'd be a little more transparency, a little more ability

509
00:26:31.680 --> 00:26:36.230
for people who wanted to check what was going on to do that,

510
00:26:36.230 --> 00:26:40.029
and then the third, I think third major consideration

511
00:26:40.029 --> 00:26:43.963
was that we believed, wrongly as it turned out,

512
00:26:43.963 --> 00:26:48.041
that the writ of habeas corpus would not extend

513
00:26:48.041 --> 00:26:51.410
to detainees who were outside U.S. soil.

514
00:26:51.410 --> 00:26:54.420
There was a debate to be had over whether Guantanamo

515
00:26:54.420 --> 00:26:57.000
was or was not U.S. soil given the terms

516
00:26:57.000 --> 00:27:00.650
of our lease with Cuba, but our best view

517
00:27:00.650 --> 00:27:02.300
and the collective view of the people inside

518
00:27:02.300 --> 00:27:03.760
the administration at the time was that

519
00:27:03.760 --> 00:27:08.320
that remained Cuban soil, and as such under what seemed

520
00:27:08.320 --> 00:27:13.090
to us at the time very clear and unequivocal precedence,

521
00:27:13.090 --> 00:27:15.272
there would have been no ability on the part

522
00:27:15.272 --> 00:27:18.770
of the U.S. federal courts to review

523
00:27:18.770 --> 00:27:22.670
these battlefield detentions to entertain petitions

524
00:27:22.670 --> 00:27:26.670
for writs of habeas Corpus and to embroil the administration

525
00:27:26.670 --> 00:27:28.650
and the country in the kind of lawfare

526
00:27:28.650 --> 00:27:32.352
that subsequently became absolutely endemic

527
00:27:32.352 --> 00:27:36.070
and which the people prosecuting it, you know,

528
00:27:36.070 --> 00:27:38.153
ultimately I would say won,

529
00:27:39.240 --> 00:27:43.950
much to our surprise and frankly, chagrin as time went on.

530
00:27:43.950 --> 00:27:48.020
The way the Supreme Court ended up ruling in the major,

531
00:27:48.020 --> 00:27:50.470
in the four or five major terrorism cases

532
00:27:50.470 --> 00:27:53.750
starting with Rasul was a surprise, I think,

533
00:27:53.750 --> 00:27:55.750
and by and large a disappointment to most of

534
00:27:55.750 --> 00:27:59.330
the administration lawyers, including myself.

535
00:27:59.330 --> 00:28:00.492
<v Interviewer>I was just going to ask you that.</v>

536
00:28:00.492 --> 00:28:04.258
So it was pretty much unanimous among the attorneys

537
00:28:04.258 --> 00:28:07.546
you've worked with that Guantanamo was secure

538
00:28:07.546 --> 00:28:09.648
and that habeas probably would not.

539
00:28:09.648 --> 00:28:12.170
<v ->That was the strongly held view.</v>

540
00:28:12.170 --> 00:28:15.950
With the benefit of hindsight I can identify a very clear

541
00:28:15.950 --> 00:28:20.870
blind spot that we all had, which led this group,

542
00:28:20.870 --> 00:28:22.790
not just the small group in the White House,

543
00:28:22.790 --> 00:28:26.120
but a much larger group including senior level appointees

544
00:28:26.120 --> 00:28:28.459
in the Justice Department, State Department,

545
00:28:28.459 --> 00:28:33.459
Defense Department, to the wrong conclusion

546
00:28:34.060 --> 00:28:37.010
with respect to the availability of habeas.

547
00:28:37.010 --> 00:28:42.010
That blind spot was mistaking our belief in how the law

548
00:28:42.880 --> 00:28:47.880
and the courts ought to work for a belief in how the law

549
00:28:48.470 --> 00:28:50.803
and the courts really do work.

550
00:28:50.803 --> 00:28:53.200
That is, I think a lot of us learned quite a bit

551
00:28:53.200 --> 00:28:56.070
from the years of litigation that ensued.

552
00:28:56.070 --> 00:29:00.610
There was a, if memory serves, there was a unanimous

553
00:29:00.610 --> 00:29:03.210
Supreme Court decision directly on point

554
00:29:03.210 --> 00:29:04.810
with respect to habeas corpus.

555
00:29:04.810 --> 00:29:07.115
I believe it was Johnson versus Eisentrager,

556
00:29:07.115 --> 00:29:10.508
and we all looked at that very carefully,

557
00:29:10.508 --> 00:29:15.508
read it the way strict constructionists and believers

558
00:29:15.520 --> 00:29:20.330
in judicial restraint read Supreme Court opinions and said,

559
00:29:20.330 --> 00:29:22.370
this is easy, this is ironclad.

560
00:29:22.370 --> 00:29:25.480
There's a, you know, a modern, unanimous

561
00:29:25.480 --> 00:29:28.720
Supreme Court decision saying that habeas corpus

562
00:29:28.720 --> 00:29:32.010
does not extend outside the territorial United States.

563
00:29:32.010 --> 00:29:34.640
There were other cases too that gave us comfort that

564
00:29:34.640 --> 00:29:37.985
from a legal perspective, that was a settled question,

565
00:29:37.985 --> 00:29:42.797
and we radically underestimated extent to which a change

566
00:29:42.797 --> 00:29:46.410
in the zeitgeist, in the temper of the times,

567
00:29:46.410 --> 00:29:49.990
could make its way into judicial consideration of issues

568
00:29:49.990 --> 00:29:53.090
like that and undermine what seemed

569
00:29:53.090 --> 00:29:55.700
to be well-settled precedence.

570
00:29:55.700 --> 00:29:59.037
We were all political and judicial conservatives

571
00:29:59.037 --> 00:30:02.010
working for the Bush administration and in

572
00:30:02.010 --> 00:30:06.370
the judicial sphere, what that means is believing

573
00:30:06.370 --> 00:30:11.100
that judges have relatively less discretion to indulge

574
00:30:11.100 --> 00:30:14.666
their views of good policy, that they are more constrained

575
00:30:14.666 --> 00:30:19.490
by the positive law, by the words of the Constitution,

576
00:30:19.490 --> 00:30:22.608
by the texts of statutes and by existing precedents

577
00:30:22.608 --> 00:30:24.630
than judicial liberals believe.

578
00:30:24.630 --> 00:30:27.660
Judicial liberals believe that judges have much more

579
00:30:27.660 --> 00:30:30.730
latitude to quote unquote work justice,

580
00:30:30.730 --> 00:30:33.634
and that the fabric of the law is much more plastic

581
00:30:33.634 --> 00:30:37.100
than a judicial conservative believes,

582
00:30:37.100 --> 00:30:42.100
and laboring under that view, all of us took,

583
00:30:43.070 --> 00:30:45.870
with the benefit of hindsight, far too much comfort

584
00:30:45.870 --> 00:30:48.260
from the fact that there was an existing, modern,

585
00:30:48.260 --> 00:30:51.880
unanimous Supreme Court precedent essentially providing,

586
00:30:51.880 --> 00:30:55.020
subject to a few smaller bore questions,

587
00:30:55.020 --> 00:30:56.690
that Guantanamo would be outside

588
00:30:56.690 --> 00:31:00.040
the jurisdiction of the federal courts.

589
00:31:00.040 --> 00:31:05.040
As, as time went on and the litigation continued

590
00:31:05.130 --> 00:31:09.050
and there was a backlash against some of these policies

591
00:31:09.050 --> 00:31:12.187
that gained traction internationally and domestically,

592
00:31:12.187 --> 00:31:16.476
that very much seeped into the thinking of the judiciary

593
00:31:16.476 --> 00:31:20.565
and I think an honest accounting of Rasul versus Bush

594
00:31:20.565 --> 00:31:25.010
is that it overruled Johnson versus Eisenrager

595
00:31:25.010 --> 00:31:27.160
on this point sub silentio.

596
00:31:27.160 --> 00:31:28.656
<v Interviewer>True.</v>

597
00:31:28.656 --> 00:31:29.846
<v ->That was a little bit beyond the imagining</v>

598
00:31:29.846 --> 00:31:33.574
of the Bush White House lawyers at the time, and I think

599
00:31:33.574 --> 00:31:35.884
that's the biggest mistake we made

600
00:31:35.884 --> 00:31:38.793
as a matter of legal craftsmanship.

601
00:31:40.047 --> 00:31:42.010
<v Interviewer>So you were a clerk on the court.</v>

602
00:31:42.010 --> 00:31:44.440
You said you clerked for Justice Kennedy.

603
00:31:44.440 --> 00:31:46.553
You must have seen that these justices do think

604
00:31:46.553 --> 00:31:50.100
outside of just precedent.

605
00:31:50.100 --> 00:31:54.640
I mean, that's their job so, and, and many of the attorneys

606
00:31:54.640 --> 00:31:56.590
who worked in the Bush administration all were clerks.

607
00:31:56.590 --> 00:31:57.864
They all saw that.

608
00:31:57.864 --> 00:31:58.737
<v ->Yeah.</v>

609
00:31:58.737 --> 00:31:59.570
<v Interviewer>So I'm surprised there was no one there</v>

610
00:31:59.570 --> 00:32:00.770
who just spoke and said, look, you know,

611
00:32:00.770 --> 00:32:01.970
it's not black and white.

612
00:32:01.970 --> 00:32:03.360
There could be an argument about that.

613
00:32:03.360 --> 00:32:08.360
<v ->Yeah, so that did come up in the context of some</v>

614
00:32:08.780 --> 00:32:11.810
other legal issues that we had to cope with over time.

615
00:32:11.810 --> 00:32:16.810
For example, once it had been established that courts

616
00:32:16.900 --> 00:32:19.840
were hearing habeas petitions in the U.S.

617
00:32:19.840 --> 00:32:23.880
brought by Guantanamo detainees, the question of the extent

618
00:32:23.880 --> 00:32:26.870
to which the U.S. government could deny counsel

619
00:32:26.870 --> 00:32:30.380
to those people was one in which there was quite

620
00:32:30.380 --> 00:32:32.790
a vigorous difference of opinion within

621
00:32:32.790 --> 00:32:35.856
the White House Counsel's office about what the courts

622
00:32:35.856 --> 00:32:37.910
would do with that question,

623
00:32:37.910 --> 00:32:39.400
not so much what they should do.

624
00:32:39.400 --> 00:32:43.130
We were of similar mind about that, but, you know,

625
00:32:43.130 --> 00:32:45.700
two of us had clerked for Justice Kennedy who was kind of

626
00:32:45.700 --> 00:32:48.200
the balance wheel of the Court then as he is

627
00:32:48.200 --> 00:32:52.680
even today in 2015 and, you know, we were very much

628
00:32:52.680 --> 00:32:55.657
of the view that whatever the right answer was

629
00:32:55.657 --> 00:32:59.070
to the habeas question, that Justice Kennedy

630
00:32:59.070 --> 00:33:01.690
would be very, very troubled by an, a bill,

631
00:33:01.690 --> 00:33:04.817
by an effort to deny the assistance of counsel

632
00:33:04.817 --> 00:33:09.600
to these detainees but on the, on the initial question,

633
00:33:09.600 --> 00:33:14.600
the availability of the writ, even with the experience,

634
00:33:15.360 --> 00:33:18.810
which I think was common to seven out of the eight

635
00:33:18.810 --> 00:33:22.100
associate counsels of having clerked at the Supreme Court,

636
00:33:22.100 --> 00:33:24.530
it was also an experience that the deputy

637
00:33:24.530 --> 00:33:27.324
White House counsel Tim Flanagan had had,

638
00:33:27.324 --> 00:33:30.647
that both of the main lawyers working these issues

639
00:33:30.647 --> 00:33:33.600
at the Office of Legal Counsel in the Justice Department

640
00:33:33.600 --> 00:33:36.858
had had, even with the benefit of that experience,

641
00:33:36.858 --> 00:33:41.690
we thought the habeas issue was clear, straightforward,

642
00:33:41.690 --> 00:33:45.650
relatively easy, and that the courts would not have

643
00:33:45.650 --> 00:33:48.770
much difficulty with it, in part because you could

644
00:33:48.770 --> 00:33:51.418
pretty easily count to five on the Supreme Court

645
00:33:51.418 --> 00:33:56.200
of justices who were not in general

646
00:33:56.200 --> 00:33:58.526
favorable to an expansive interpretation

647
00:33:58.526 --> 00:34:02.210
of habeas corpus and the writ in general,

648
00:34:02.210 --> 00:34:03.730
and that included Justice Kennedy.

649
00:34:03.730 --> 00:34:07.294
Justice Kennedy had very strict views and jurisprudence

650
00:34:07.294 --> 00:34:10.140
about the jurisdiction of the federal courts

651
00:34:10.140 --> 00:34:12.760
when it came to affording habeas relief.

652
00:34:12.760 --> 00:34:16.080
He had been the author of a number of opinions

653
00:34:16.080 --> 00:34:21.080
that had tightly reigned in the scope of, of the writ,

654
00:34:21.190 --> 00:34:23.940
including one, I think, maybe called Stringer versus Black

655
00:34:23.940 --> 00:34:28.940
back in the '80s, so we were really not very concerned

656
00:34:29.140 --> 00:34:32.310
that the court would go running off in the direction

657
00:34:32.310 --> 00:34:35.574
that Justice Stevens ultimately took it to

658
00:34:35.574 --> 00:34:37.163
in a case like Rasul.

659
00:34:38.120 --> 00:34:39.667
<v Interviewer>So there was, just one more time,</v>

660
00:34:39.667 --> 00:34:41.050
'cause this is fascinating.

661
00:34:41.050 --> 00:34:41.890
We haven't heard this before.

662
00:34:41.890 --> 00:34:44.140
There was no one devil's advocate.

663
00:34:44.140 --> 00:34:45.510
No one person has said, wait,

664
00:34:45.510 --> 00:34:47.923
let's just consider that possibility.

665
00:34:47.923 --> 00:34:52.923
<v ->I don't recall a single lawyer involved in these debates</v>

666
00:34:53.330 --> 00:34:58.330
at the time who believed either A, that habeas corpus

667
00:34:58.940 --> 00:35:02.160
jurisdiction did extend to Guantanamo Bay,

668
00:35:02.160 --> 00:35:05.100
or B, that the courts would say that it did,

669
00:35:05.100 --> 00:35:07.030
whatever our personal beliefs about whether

670
00:35:07.030 --> 00:35:10.300
it did or did not work.

671
00:35:10.300 --> 00:35:14.410
So I don't remember any debate or dissent on that point.

672
00:35:14.410 --> 00:35:19.180
We all believed that Guantanamo Bay was beyond the reach

673
00:35:19.180 --> 00:35:23.030
of the U.S. federal courts and believed that

674
00:35:23.030 --> 00:35:27.400
the U.S. court system would quickly reach that conclusion.

675
00:35:27.400 --> 00:35:30.584
There were plenty of other issues as the years wore on

676
00:35:30.584 --> 00:35:34.210
where there was debate, disagreement, discussion, dissent

677
00:35:34.210 --> 00:35:36.540
about some of these big legal issues,

678
00:35:36.540 --> 00:35:38.140
Constitutional or otherwise.

679
00:35:38.140 --> 00:35:40.550
That threshold issue was not one of them.

680
00:35:40.550 --> 00:35:41.940
<v Interviewer>So when you, going back,</v>

681
00:35:41.940 --> 00:35:45.778
when you said that Guantanamo surfaced in your discussions,

682
00:35:45.778 --> 00:35:49.350
was that immediately noticed that in fact,

683
00:35:49.350 --> 00:35:52.810
who raised Guantanamo also said, look, you know,

684
00:35:52.810 --> 00:35:55.780
this would also provide the habeas sanctuary?

685
00:35:55.780 --> 00:35:59.670
<v ->So I can't remember exactly, you know,</v>

686
00:35:59.670 --> 00:36:03.017
who first mentioned Guantanamo Bay

687
00:36:03.017 --> 00:36:06.990
or how soon after 9/11 or in what context.

688
00:36:06.990 --> 00:36:10.250
My general recollection is that it was an option

689
00:36:10.250 --> 00:36:12.980
on the table more or less immediately.

690
00:36:12.980 --> 00:36:15.520
It was a place that people thought about.

691
00:36:15.520 --> 00:36:19.840
All of us had been around for the issues

692
00:36:19.840 --> 00:36:22.178
involving Guantanamo that reached the Supreme Court

693
00:36:22.178 --> 00:36:25.600
back in the '80s in the immigration context.

694
00:36:25.600 --> 00:36:29.230
So, you know, we were cognizant of its existence there

695
00:36:29.230 --> 00:36:31.124
and of its rather unique status,

696
00:36:31.124 --> 00:36:36.124
and so I think it was very, very early on that

697
00:36:37.780 --> 00:36:40.310
it was a candidate and that it was discussed

698
00:36:40.310 --> 00:36:44.000
among the options and in terms of the awareness

699
00:36:44.000 --> 00:36:47.520
that there was in addition to the practical advantages

700
00:36:47.520 --> 00:36:51.900
that I described, also potentially this legal advantage,

701
00:36:51.900 --> 00:36:54.485
which was also a practical advantage,

702
00:36:54.485 --> 00:36:58.370
I recall being aware of that, you know,

703
00:36:58.370 --> 00:37:02.280
roughly contemporaneously with the earliest discussions

704
00:37:02.280 --> 00:37:04.470
of these, of these issues.

705
00:37:04.470 --> 00:37:07.410
It's not as though we went along for a month

706
00:37:07.410 --> 00:37:11.590
and then somebody said, hey, Johnson versus Eisentrager.

707
00:37:11.590 --> 00:37:13.790
In addition to all the other things weighing in favor

708
00:37:13.790 --> 00:37:16.481
of Guantanamo, we're not going to have to worry about

709
00:37:16.481 --> 00:37:19.793
al Qaeda terrorists suing the President there.

710
00:37:20.870 --> 00:37:23.870
We were all aware of that as a factor

711
00:37:23.870 --> 00:37:25.930
from very, very early on, I would say

712
00:37:25.930 --> 00:37:29.233
within the first couple of days after 9/11.

713
00:37:30.150 --> 00:37:31.810
<v Interviewer>In the first couple of days after 9/11.</v>

714
00:37:31.810 --> 00:37:32.716
<v ->I think so.</v>

715
00:37:32.716 --> 00:37:33.800
<v Interviewer>Your team thought Guantanamo was an option.</v>

716
00:37:33.800 --> 00:37:34.633
<v ->I think so.</v>

717
00:37:34.633 --> 00:37:38.260
I mean, again, a lot of time has passed and I couldn't swear

718
00:37:38.260 --> 00:37:40.930
that it was a couple of days as opposed to a week

719
00:37:40.930 --> 00:37:45.920
or two weeks, but I don't think it was, I'm sure it was

720
00:37:45.920 --> 00:37:48.727
well before the end of October and probably before

721
00:37:48.727 --> 00:37:53.240
the end of September, that Guantanamo was in the mix

722
00:37:53.240 --> 00:37:57.027
and that the habeas issue was part of the discussion.

723
00:37:57.027 --> 00:37:58.890
<v Interviewer>And it sounds like habeas tipped it</v>

724
00:37:58.890 --> 00:38:00.797
because some of the other locations

725
00:38:00.797 --> 00:38:03.376
might've been more problematic with habeas,

726
00:38:03.376 --> 00:38:05.690
partly because they might have other countries

727
00:38:05.690 --> 00:38:08.760
supervising them or within their jurisdiction.

728
00:38:08.760 --> 00:38:11.850
<v ->Yeah, no, I don't remember a lot of consideration</v>

729
00:38:11.850 --> 00:38:15.440
being given at the time to setting up prisons

730
00:38:15.440 --> 00:38:18.703
in other countries as we now know happened

731
00:38:18.703 --> 00:38:23.430
in the black sites, the CIA black sites in eastern Europe.

732
00:38:23.430 --> 00:38:27.530
I wasn't part of any discussion of anything like that,

733
00:38:27.530 --> 00:38:31.140
and I don't recall consideration being given to that

734
00:38:31.140 --> 00:38:32.410
as an option at the time.

735
00:38:32.410 --> 00:38:36.250
Maybe it was, particularly in one of the departments

736
00:38:36.250 --> 00:38:40.771
or agencies, but I remember the options being Afghanistan,

737
00:38:40.771 --> 00:38:45.520
a ship, Guantanamo, or here in the U.S.

738
00:38:45.520 --> 00:38:49.080
<v Interviewer>What about an island in the Pacific or?</v>

739
00:38:49.080 --> 00:38:52.120
<v ->Yeah, that may have come up, that may have come up.</v>

740
00:38:52.120 --> 00:38:56.210
There may have been other island options considered.

741
00:38:56.210 --> 00:39:01.210
I can't recall specifically an island or a couple of islands

742
00:39:02.350 --> 00:39:05.237
that people were talking about, but that rings a vague bell.

743
00:39:05.237 --> 00:39:06.697
That might've been in the mix.

744
00:39:06.697 --> 00:39:07.800
<v Interviewer>The way you're describing,</v>

745
00:39:07.800 --> 00:39:09.349
which is really fascinating to me, is that Guantanamo

746
00:39:09.349 --> 00:39:14.349
surfaced early and clearly people focused on it and if they.

747
00:39:14.350 --> 00:39:19.030
<v ->Yeah, people focused on it early because it seemed to have</v>

748
00:39:19.030 --> 00:39:21.370
a unique combination of advantages.

749
00:39:21.370 --> 00:39:25.887
You know, completely secure, a U.S. military base,

750
00:39:25.887 --> 00:39:30.887
not on U.S. soil and separated by ocean water

751
00:39:31.120 --> 00:39:36.120
from the nearest bit of U.S. soil and yet accessible,

752
00:39:38.060 --> 00:39:41.400
accessible to, to the policy makers and to the people

753
00:39:41.400 --> 00:39:44.400
who worked in the U.S. government, accessible to those

754
00:39:44.400 --> 00:39:46.800
who might be trying to extract intelligence

755
00:39:46.800 --> 00:39:50.590
from these detainees, far away from home for these folks

756
00:39:50.590 --> 00:39:52.784
so there would be no hope or thought of escape

757
00:39:52.784 --> 00:39:57.784
on their part, and the legal advantage of taking away

758
00:39:57.970 --> 00:40:00.650
from them the possibility they would otherwise have

759
00:40:00.650 --> 00:40:03.860
if we brought them here to the U.S. of suing the President

760
00:40:03.860 --> 00:40:06.893
to challenge their confinement on one or another ground.

761
00:40:07.836 --> 00:40:08.700
<v Interviewer>I hadn't thought of this</v>

762
00:40:08.700 --> 00:40:10.470
but I'm going to ask you and you don't have to answer,

763
00:40:10.470 --> 00:40:14.390
but knowing what you know now, would the committee

764
00:40:14.390 --> 00:40:16.217
have not chosen Guantanamo, do you think?

765
00:40:16.217 --> 00:40:17.450
(chuckles)

766
00:40:17.450 --> 00:40:22.450
<v ->Yeah, well, you know, all of this did not turn out</v>

767
00:40:23.370 --> 00:40:27.290
the way we wanted it to or thought it would.

768
00:40:27.290 --> 00:40:29.550
There was much more litigation,

769
00:40:29.550 --> 00:40:31.580
much more intensive litigation,

770
00:40:31.580 --> 00:40:36.580
much more unsuccessful litigation from our standpoint

771
00:40:36.830 --> 00:40:41.226
than any of us envisioned in those weeks right after 9/11.

772
00:40:41.226 --> 00:40:44.570
You know, military commissions is another major issue

773
00:40:44.570 --> 00:40:48.290
about which that's a totally fair question.

774
00:40:48.290 --> 00:40:50.640
You know, the assumptions that led to the decision

775
00:40:50.640 --> 00:40:55.150
to stand up military commissions and use them, and a number

776
00:40:55.150 --> 00:40:58.530
of the important assumptions did not prove to be true

777
00:40:58.530 --> 00:41:01.010
over time and what the decision would have been

778
00:41:01.010 --> 00:41:02.760
if we had known that those assumptions

779
00:41:02.760 --> 00:41:05.757
were incorrect, very hard to say.

780
00:41:05.757 --> 00:41:10.757
I think most of the people who favored using Guantanamo

781
00:41:12.100 --> 00:41:16.411
as the site to detain the captured al Qaeda terrorists,

782
00:41:16.411 --> 00:41:21.180
I think most of those people would stand by that decision

783
00:41:21.180 --> 00:41:23.710
today as the best of the available options.

784
00:41:23.710 --> 00:41:27.650
I don't know of any of my former colleagues that now think,

785
00:41:27.650 --> 00:41:31.230
knowing what we know today even, a better choice

786
00:41:31.230 --> 00:41:34.160
would have been to bring these folks into the U.S.

787
00:41:34.160 --> 00:41:38.250
I think most people felt pretty comfortable that from

788
00:41:38.250 --> 00:41:41.070
a policy perspective, that was the best

789
00:41:41.070 --> 00:41:43.180
of the available options.

790
00:41:43.180 --> 00:41:45.510
The difference may be that while we regarded it as

791
00:41:45.510 --> 00:41:49.630
quite a good option back then, we might describe it now

792
00:41:49.630 --> 00:41:53.233
as the least bad among a group of bad options,

793
00:41:53.233 --> 00:41:56.233
but that's a nuance, I guess.

794
00:41:57.170 --> 00:41:58.778
<v Interviewer>Do you think the,</v>

795
00:41:58.778 --> 00:42:00.980
the way you're describing it sounds like, do you think

796
00:42:00.980 --> 00:42:03.050
the lawyers in the White House or perhaps in

797
00:42:03.050 --> 00:42:04.909
the entire administration were somewhat naive as to

798
00:42:04.909 --> 00:42:07.860
the way the world was moving?

799
00:42:07.860 --> 00:42:12.860
<v ->Yes, I think some of it was naiveté and some of it was,</v>

800
00:42:13.426 --> 00:42:17.020
was just a, a wrong guess about the way

801
00:42:17.020 --> 00:42:18.710
the world was moving.

802
00:42:18.710 --> 00:42:22.600
The naivete consisted of that blind spot I was describing

803
00:42:22.600 --> 00:42:27.600
in terms of approaching these legal questions very much

804
00:42:28.130 --> 00:42:32.170
with a firmly held belief in judicial restraint

805
00:42:32.170 --> 00:42:36.110
as the right way for the courts to approach legal questions

806
00:42:36.110 --> 00:42:39.990
and insufficient appreciation for the extent

807
00:42:39.990 --> 00:42:43.070
to which what are known as the legal realists

808
00:42:43.070 --> 00:42:46.090
really had it right as a descriptive matter,

809
00:42:46.090 --> 00:42:48.411
if not a normative matter in terms of how

810
00:42:48.411 --> 00:42:52.300
the courts actually do work.

811
00:42:52.300 --> 00:42:55.570
The, the part that was not naivete, but rather just

812
00:42:55.570 --> 00:43:00.570
a failure of imagination or a failure to predict accurately

813
00:43:00.680 --> 00:43:03.810
what would happen in the future is that when

814
00:43:03.810 --> 00:43:06.070
these discussions were all going on,

815
00:43:06.070 --> 00:43:11.070
the country was powerfully united behind the need

816
00:43:11.430 --> 00:43:15.980
to respond to the 9/11 attacks, to do so forcefully,

817
00:43:15.980 --> 00:43:19.170
to do so in a way that elevated the value

818
00:43:19.170 --> 00:43:23.150
of safeguarding American lives above most other values,

819
00:43:23.150 --> 00:43:27.509
no matter how worthy those other values would be,

820
00:43:27.509 --> 00:43:30.680
and with approval ratings for the President up

821
00:43:30.680 --> 00:43:32.810
in the 90s or the 80s.

822
00:43:32.810 --> 00:43:36.399
So we felt that there were gale force political winds

823
00:43:36.399 --> 00:43:41.089
at our back at the time, that the President had

824
00:43:41.089 --> 00:43:46.089
the kind of intense, incredible support domestically

825
00:43:46.610 --> 00:43:51.610
that comes along, you know, once every several generations,

826
00:43:51.710 --> 00:43:55.350
and in part because we probably didn't think as much

827
00:43:55.350 --> 00:43:58.831
as we should have about the global legal community

828
00:43:58.831 --> 00:44:02.178
and in part because I think we underestimated

829
00:44:02.178 --> 00:44:07.070
the determination and resolve of the left

830
00:44:07.070 --> 00:44:12.070
in the United States, we didn't think we would end up

831
00:44:12.820 --> 00:44:16.730
being on the wrong side of this debate from a public opinion

832
00:44:16.730 --> 00:44:19.840
or political or sociological perspective.

833
00:44:19.840 --> 00:44:22.646
That was very hard to imagine,

834
00:44:22.646 --> 00:44:26.210
you know, on October one, 2001.

835
00:44:26.210 --> 00:44:29.650
It turned out to be true but I don't think

836
00:44:29.650 --> 00:44:32.670
any of us thought that was the way

837
00:44:32.670 --> 00:44:34.790
things were going in those first weeks.

838
00:44:34.790 --> 00:44:36.650
<v Interviewer>Not even the members, the liberal</v>

839
00:44:36.650 --> 00:44:39.253
State Department members, they even didn't?

840
00:44:41.447 --> 00:44:45.930
<v ->You know, we had our frictions with Will Taft,</v>

841
00:44:45.930 --> 00:44:49.360
who was then the State Department legal advisor.

842
00:44:49.360 --> 00:44:52.780
I don't remember them being over this issue.

843
00:44:52.780 --> 00:44:56.365
Within that working group that Pierre Prosper

844
00:44:56.365 --> 00:45:01.365
was, was chairing, I don't remember a lot of dissent

845
00:45:02.730 --> 00:45:06.920
from the State Department on these basic issues.

846
00:45:06.920 --> 00:45:08.357
I don't know that they would have been listened to

847
00:45:08.357 --> 00:45:11.830
for more than a second if disagreement or dissent

848
00:45:11.830 --> 00:45:14.650
had been expressed about this,

849
00:45:14.650 --> 00:45:18.650
but on these foundational questions in that period

850
00:45:18.650 --> 00:45:22.710
of immediate aftermath, I don't recall even the folks

851
00:45:22.710 --> 00:45:25.224
at the State Department who are much more attuned

852
00:45:25.224 --> 00:45:30.006
to international opinion, the views of the global elites

853
00:45:30.006 --> 00:45:34.050
tend to be much more skeptical and much more liberal

854
00:45:34.050 --> 00:45:36.330
than a conservative Republican White House.

855
00:45:36.330 --> 00:45:39.740
I don't remember even those people sounding alarms

856
00:45:39.740 --> 00:45:41.600
or even raising serious questions.

857
00:45:41.600 --> 00:45:44.770
They did about other things, the Geneva Conventions,

858
00:45:44.770 --> 00:45:49.770
for example absolutely, but this question of, you know,

859
00:45:50.570 --> 00:45:54.960
do we treat these people as unlawful enemy combatants?

860
00:45:54.960 --> 00:45:59.037
Do we house them at Guantanamo Bay, will habeas apply,

861
00:45:59.037 --> 00:46:04.037
there was pretty uniform thinking among every,

862
00:46:04.040 --> 00:46:06.750
every voice that I heard and these were the voices

863
00:46:06.750 --> 00:46:11.750
of a group of very smart, thoughtful, conscientious lawyers.

864
00:46:12.001 --> 00:46:12.897
<v Interviewer>And were you involved in,</v>

865
00:46:12.897 --> 00:46:14.381
when you mentioned military commission,

866
00:46:14.381 --> 00:46:19.381
were you involved in the Bush declaration in November 2001?

867
00:46:20.299 --> 00:46:21.132
<v ->Very much so.</v>

868
00:46:21.132 --> 00:46:25.440
Yeah, I was, I was Judge Gonzales' point person on that so.

869
00:46:25.440 --> 00:46:26.437
<v Interviewer>Did you write the draft?</v>

870
00:46:26.437 --> 00:46:28.297
<v ->The four people who were involved in that</v>

871
00:46:28.297 --> 00:46:31.150
in the White House were Judge Gonzales himself,

872
00:46:31.150 --> 00:46:34.000
his deputy Tim Flanagan, David Addington,

873
00:46:34.000 --> 00:46:36.977
the counsel to the Vice President, and then me.

874
00:46:36.977 --> 00:46:40.840
A lot of the action on that was in the State Department

875
00:46:40.840 --> 00:46:42.730
working group to begin with.

876
00:46:42.730 --> 00:46:45.350
It got vacuumed up into the White House

877
00:46:45.350 --> 00:46:49.660
when frustration developed among Gonzalez, Addington,

878
00:46:49.660 --> 00:46:52.727
and Flanagan about the pace of the deliberations

879
00:46:52.727 --> 00:46:56.600
that this inter-ag, agency working group had set,

880
00:46:56.600 --> 00:46:59.350
which were just at that time in the atmosphere

881
00:46:59.350 --> 00:47:02.970
of continuing emergency, regarded as just too slow.

882
00:47:02.970 --> 00:47:05.520
<v Interviewer>And did you have any doubts, or did anyone</v>

883
00:47:05.520 --> 00:47:08.640
have any doubts that maybe Congress should get involved

884
00:47:08.640 --> 00:47:11.780
in drafting legislation for the military commissions?

885
00:47:11.780 --> 00:47:14.970
<v ->Yeah, so here on this issue, there was</v>

886
00:47:14.970 --> 00:47:17.241
much more debate and discussion.

887
00:47:17.241 --> 00:47:19.640
The Department of Defense, for example,

888
00:47:19.640 --> 00:47:23.439
was very leery of using military commissions.

889
00:47:23.439 --> 00:47:26.691
They, they favored an approach that would have

890
00:47:26.691 --> 00:47:31.640
used courts martial, the Uniform Code of Military Justice,

891
00:47:31.640 --> 00:47:35.630
and the established laws and procedures that applied

892
00:47:35.630 --> 00:47:38.330
to military trials for our own service members

893
00:47:38.330 --> 00:47:40.950
for these enemy combatants.

894
00:47:40.950 --> 00:47:44.789
So whether it was the, the State Department

895
00:47:44.789 --> 00:47:47.360
or the Department of Defense, there was a lot more

896
00:47:47.360 --> 00:47:50.770
inter-agency debate and disagreement

897
00:47:50.770 --> 00:47:53.100
over military commissions.

898
00:47:53.100 --> 00:47:57.508
I would say the White House and the Justice Department

899
00:47:57.508 --> 00:48:01.120
were sort of aligned in favoring having them

900
00:48:01.120 --> 00:48:04.630
in the President's toolbox in part because the right

901
00:48:04.630 --> 00:48:07.660
default setting on any question was, hey,

902
00:48:07.660 --> 00:48:10.210
if there was an available tool for the President to have

903
00:48:10.210 --> 00:48:12.810
in the toolbox, we should put it there in case

904
00:48:12.810 --> 00:48:16.024
he needed to use it, but in part for substantive

905
00:48:16.024 --> 00:48:19.877
legal reasons, whereas the Department of Defense

906
00:48:19.877 --> 00:48:22.901
and the State Department were much more cautious

907
00:48:22.901 --> 00:48:27.340
and much more worried about what establishing

908
00:48:27.340 --> 00:48:29.776
military commissions for the first time since I think

909
00:48:29.776 --> 00:48:33.300
World War II might do.

910
00:48:33.300 --> 00:48:35.280
They were much more cognizant of the risks

911
00:48:35.280 --> 00:48:38.137
and the downsides, which I think we in the White House

912
00:48:38.137 --> 00:48:40.060
and the folks in the Justice Department

913
00:48:40.060 --> 00:48:43.867
from a policy perspective probably undervalued.

914
00:48:43.867 --> 00:48:47.490
That's part of the reason why the inter-agency process

915
00:48:47.490 --> 00:48:50.920
was moving so slowly and which led to the frustration

916
00:48:50.920 --> 00:48:53.630
that caused the White House to just simply grab the reigns

917
00:48:53.630 --> 00:48:56.633
on that question in late October, early November.

918
00:48:57.680 --> 00:48:58.919
<v Interviewer>Can you tell us who with</v>

919
00:48:58.919 --> 00:49:03.487
the Department of Defense was an advocate for moving slower?

920
00:49:03.487 --> 00:49:08.348
<v ->Well, you know, Jim Haynes was the general counsel.</v>

921
00:49:08.348 --> 00:49:11.799
So I don't think any of these views would have been

922
00:49:11.799 --> 00:49:16.120
contrary to his wishes.

923
00:49:16.120 --> 00:49:18.670
I don't remember him as an active participant

924
00:49:18.670 --> 00:49:20.250
in the working group.

925
00:49:20.250 --> 00:49:22.560
I could be wrong about this but if memory serves,

926
00:49:22.560 --> 00:49:26.500
a member of the uniformed military, a colonel

927
00:49:26.500 --> 00:49:30.101
by the name of Bill Lietzau was involved,

928
00:49:30.101 --> 00:49:35.101
and I think Jim Haynes' deputy, Whit Cobb,

929
00:49:35.540 --> 00:49:37.120
may have been involved.

930
00:49:37.120 --> 00:49:39.621
So I think it might've been Whit or Bill,

931
00:49:39.621 --> 00:49:43.740
maybe some others, who were sounding some of these notes

932
00:49:43.740 --> 00:49:48.120
of caution from the DOD, but, but the, you know,

933
00:49:48.120 --> 00:49:52.780
the military is very proud of the military justice system

934
00:49:52.780 --> 00:49:57.000
and takes great umbrage at the derision and ridicule

935
00:49:57.000 --> 00:50:00.400
that is sometimes directed at it by its critics.

936
00:50:00.400 --> 00:50:03.710
They feel it's a very professional, well-functioning,

937
00:50:03.710 --> 00:50:07.500
fair system, and I think part of, part of the reaction

938
00:50:07.500 --> 00:50:11.410
from the career uniform military, you know,

939
00:50:11.410 --> 00:50:13.850
below the level of the political appointees but which

940
00:50:13.850 --> 00:50:17.717
the political appointees in the Pentagon heard a lot

941
00:50:17.717 --> 00:50:21.397
was a worry that in some way or another,

942
00:50:21.397 --> 00:50:25.681
the establishment of military commissions would either

943
00:50:25.681 --> 00:50:29.286
effectively be interpreted as a disparagement

944
00:50:29.286 --> 00:50:32.296
in the sense of an identification of inadequacy

945
00:50:32.296 --> 00:50:36.620
with the existing system of, of courts martial

946
00:50:36.620 --> 00:50:41.620
or would, if they didn't work well, reflect discredit

947
00:50:42.290 --> 00:50:47.270
on the permanent system of courts martial.

948
00:50:47.270 --> 00:50:49.691
So there was, there was a lot of nervousness

949
00:50:49.691 --> 00:50:53.019
within the military about military commissions.

950
00:50:53.019 --> 00:50:53.852
<v Interviewer>Fascinating.</v>

951
00:50:53.852 --> 00:50:56.890
Then did you, you must have, I just wanted to put it

952
00:50:56.890 --> 00:51:00.920
on camera that you met somebody must've said to you

953
00:51:00.920 --> 00:51:03.870
or you found it yourself that this would be unique

954
00:51:03.870 --> 00:51:06.100
where a president establishes the military commissions

955
00:51:06.100 --> 00:51:08.960
on his own without Congressional support.

956
00:51:08.960 --> 00:51:11.860
Was that of a concern or again?

957
00:51:11.860 --> 00:51:15.030
<v ->No, it wasn't a concern primarily because once again,</v>

958
00:51:15.030 --> 00:51:17.650
we had a pretty good-looking Supreme Court opinion

959
00:51:20.060 --> 00:51:23.280
and here I may be confusing Johnson vs Eisentrager

960
00:51:23.280 --> 00:51:26.400
and ex parte Quirin, one of those cases was unanimous.

961
00:51:26.400 --> 00:51:28.500
I think it was Eisentrager,

962
00:51:28.500 --> 00:51:30.000
but it might be the other way around.

963
00:51:30.000 --> 00:51:31.710
It could be that Quirin was unanimous

964
00:51:31.710 --> 00:51:34.480
and Eisentrager was 5-4 or 6-3,

965
00:51:34.480 --> 00:51:39.480
I'm not quite sure now, but ex parte Quirin was the case

966
00:51:39.610 --> 00:51:43.510
from World War II where a submarine had dropped off

967
00:51:43.510 --> 00:51:47.188
a bunch of Nazi saboteurs on Long Island.

968
00:51:47.188 --> 00:51:51.510
Those people had been very quickly rounded up by the FBI,

969
00:51:51.510 --> 00:51:53.259
I think because one of them lost his nerve

970
00:51:53.259 --> 00:51:58.259
and essentially turned himself and his confederates in,

971
00:51:58.960 --> 00:52:01.239
and the President had on his own order,

972
00:52:01.239 --> 00:52:06.110
again without a statute, any different from what existed

973
00:52:06.110 --> 00:52:10.960
in the statutes in 2001, had on his own order

974
00:52:10.960 --> 00:52:15.960
set up military commissions, which very quickly tried

975
00:52:16.230 --> 00:52:21.230
and convicted the Quirin saboteurs, and most of them

976
00:52:22.070 --> 00:52:26.130
had been executed within a few months of their capture.

977
00:52:26.130 --> 00:52:30.400
These trials took place in a room in the Justice Department

978
00:52:30.400 --> 00:52:31.759
that you can go see.

979
00:52:31.759 --> 00:52:36.430
There was not a, a, a public outcry over either the use

980
00:52:36.430 --> 00:52:39.010
of the military commissions or the way they functioned

981
00:52:39.010 --> 00:52:44.010
in practice or what was done by them to the Nazi saboteurs,

982
00:52:44.790 --> 00:52:47.770
and the case had been the subject of legal challenge

983
00:52:47.770 --> 00:52:50.398
that had gone all the way up to the Supreme Court,

984
00:52:50.398 --> 00:52:53.270
which had held either unanimously or,

985
00:52:53.270 --> 00:52:56.820
or in a divided opinion, I can no longer remember,

986
00:52:56.820 --> 00:53:00.095
that the President did in fact have authority to do this

987
00:53:00.095 --> 00:53:03.138
when it came to unlawful enemy combatants

988
00:53:03.138 --> 00:53:06.470
and that there had been essentially nothing wrong

989
00:53:06.470 --> 00:53:09.106
from a Constitutional or legal standpoint

990
00:53:09.106 --> 00:53:11.980
with having tried the Nazi saboteurs this way.

991
00:53:11.980 --> 00:53:16.000
So again, hearkening back to that blind spot,

992
00:53:16.000 --> 00:53:21.000
for a politically and judicially conservative lawyer,

993
00:53:21.580 --> 00:53:24.768
having a World War II era Supreme Court decision

994
00:53:24.768 --> 00:53:28.408
that appeared to be right on point and came out

995
00:53:28.408 --> 00:53:31.819
validating the President's authority to do this,

996
00:53:31.819 --> 00:53:36.090
if you were advising the President, it's not that hard.

997
00:53:36.090 --> 00:53:38.260
You say, actually, this isn't a new question.

998
00:53:38.260 --> 00:53:39.920
Supreme Court's already looked at it.

999
00:53:39.920 --> 00:53:42.216
They say you have the authority to do this

1000
00:53:42.216 --> 00:53:46.580
and here's President Roosevelt's order doing it,

1001
00:53:46.580 --> 00:53:49.730
and in fact, if you compare the order that President Bush

1002
00:53:49.730 --> 00:53:52.510
signed in early November, what was it,

1003
00:53:52.510 --> 00:53:54.135
the 13th of November, maybe,

1004
00:53:54.135 --> 00:53:57.560
with President Roosevelt's order,

1005
00:53:57.560 --> 00:54:00.398
you will notice startling similarities.

1006
00:54:00.398 --> 00:54:03.710
We wanted to use as closely as possible,

1007
00:54:03.710 --> 00:54:06.610
the same form of order that had already been reviewed

1008
00:54:06.610 --> 00:54:09.370
and approved by the U.S. Supreme Court on the theory

1009
00:54:09.370 --> 00:54:12.470
that the less you deviate from it, the less risk there is

1010
00:54:12.470 --> 00:54:15.890
of a different result, and so President Bush's order

1011
00:54:15.890 --> 00:54:20.130
of November 13, 2001 was patterned after FDR's order

1012
00:54:20.130 --> 00:54:23.465
from 1943 or '44, whatever it was,

1013
00:54:23.465 --> 00:54:26.920
and we thought it had already been blessed

1014
00:54:26.920 --> 00:54:28.225
by the federal judiciary.

1015
00:54:28.225 --> 00:54:31.210
Once again, stupid us.

1016
00:54:31.210 --> 00:54:33.210
<v Interviewer>Fascinating, this is fascinating for me.</v>

1017
00:54:33.210 --> 00:54:36.186
So then one more memo we'll look at is,

1018
00:54:36.186 --> 00:54:40.130
Bush's memo of February 7th, you know, where he said,

1019
00:54:40.130 --> 00:54:42.447
we're not going to honor the Geneva Conventions

1020
00:54:42.447 --> 00:54:44.140
except in principle.

1021
00:54:44.140 --> 00:54:45.760
We're going to treat the men well,

1022
00:54:45.760 --> 00:54:49.346
even if we don't adhere to them under the law.

1023
00:54:49.346 --> 00:54:51.830
How did that evolve, and how did it?

1024
00:54:51.830 --> 00:54:53.476
<v ->I know much less about this one.</v>

1025
00:54:53.476 --> 00:54:56.570
I was not personally involved.

1026
00:54:56.570 --> 00:54:59.490
I was not Judge Gonzales' guy on that one in the way

1027
00:54:59.490 --> 00:55:03.160
that I was for military commissions or for some of

1028
00:55:03.160 --> 00:55:05.950
these unlawful enemy combatant issues.

1029
00:55:05.950 --> 00:55:09.260
I can't remember who was besides Tim Flanagan,

1030
00:55:09.260 --> 00:55:10.220
the deputy at the time.

1031
00:55:10.220 --> 00:55:11.570
I know he was deeply involved.

1032
00:55:11.570 --> 00:55:14.370
I know David Addington, Vice President Cheney's counsel,

1033
00:55:14.370 --> 00:55:15.770
was deeply involved.

1034
00:55:15.770 --> 00:55:18.131
I can't remember whether one of my colleagues

1035
00:55:18.131 --> 00:55:21.425
at the associate counsel level

1036
00:55:21.425 --> 00:55:23.189
had been seized of that issue.

1037
00:55:23.189 --> 00:55:27.790
So what I know about this is much more as a fly on the wall.

1038
00:55:27.790 --> 00:55:31.556
We had a staff meeting every morning early

1039
00:55:31.556 --> 00:55:34.440
where we were all kind of discussing what the issues are,

1040
00:55:34.440 --> 00:55:36.920
were what was going on, getting the benefit

1041
00:55:36.920 --> 00:55:40.550
of the group's thinking on particularly difficult questions.

1042
00:55:40.550 --> 00:55:42.750
So I have a little bit of an understanding of what

1043
00:55:42.750 --> 00:55:45.660
the overall reasoning was but I cannot give you much

1044
00:55:45.660 --> 00:55:48.520
on the back and forth with the other agencies,

1045
00:55:48.520 --> 00:55:50.895
who held what views, what the arguments were,

1046
00:55:50.895 --> 00:55:54.730
where individual people lined up or exactly

1047
00:55:54.730 --> 00:55:56.470
what was done or why, but I have

1048
00:55:56.470 --> 00:55:58.315
a general understanding of that.

1049
00:55:58.315 --> 00:55:59.188
<v Interviewer>Can you give us that?</v>

1050
00:55:59.188 --> 00:56:04.188
<v ->Yeah, the, I think the view there, I know there was</v>

1051
00:56:04.380 --> 00:56:07.940
a substantial difference of opinion between the White House

1052
00:56:07.940 --> 00:56:10.380
and the State Department on this, and I think it went up

1053
00:56:10.380 --> 00:56:14.080
as high as the Secretary of State who at that time

1054
00:56:14.080 --> 00:56:18.560
was General Colin Powell, obviously a senior military leader

1055
00:56:18.560 --> 00:56:23.310
before he was a senior civilian leader and someone

1056
00:56:23.310 --> 00:56:26.189
therefore very attuned to the laws of war,

1057
00:56:26.189 --> 00:56:28.680
to the importance of the Geneva Conventions,

1058
00:56:28.680 --> 00:56:30.930
to the ways in which they were applied

1059
00:56:30.930 --> 00:56:35.120
and regarded around the world by us and by our allies.

1060
00:56:35.120 --> 00:56:38.630
So he had a much more personal stake in this issue

1061
00:56:38.630 --> 00:56:41.620
than someone who might've had a different background

1062
00:56:41.620 --> 00:56:45.370
would have had, and the State Department view,

1063
00:56:45.370 --> 00:56:47.990
I think was very much in favor

1064
00:56:47.990 --> 00:56:52.020
of applying the Geneva Conventions.

1065
00:56:52.020 --> 00:56:54.175
From the perspective of the people at the White House

1066
00:56:54.175 --> 00:56:57.760
and at the Justice Department, because again the politicals

1067
00:56:57.760 --> 00:56:59.859
at the White House and at the Justice Department

1068
00:56:59.859 --> 00:57:03.238
were very closely aligned on this issue as well.

1069
00:57:03.238 --> 00:57:08.238
It seemed crazy to afford the protections of

1070
00:57:08.570 --> 00:57:12.310
the Geneva Conventions to a group of people who by the terms

1071
00:57:12.310 --> 00:57:17.080
of those Conventions really did not qualify for them.

1072
00:57:17.080 --> 00:57:20.860
The Geneva Conventions are meant to protect soldiers

1073
00:57:20.860 --> 00:57:25.705
fighting in uniform as part of an organized army that itself

1074
00:57:25.705 --> 00:57:29.100
respects and adheres to the laws of war, and therefore

1075
00:57:29.100 --> 00:57:33.650
tries to minimize civilian casualties, fights fair

1076
00:57:33.650 --> 00:57:36.470
in the sense that they wear insignia and uniforms,

1077
00:57:36.470 --> 00:57:39.640
so you can distinguish them from civilians

1078
00:57:39.640 --> 00:57:44.080
on the battlefield, and so when you look at

1079
00:57:44.080 --> 00:57:47.529
the protections available to POWs

1080
00:57:47.529 --> 00:57:51.840
under the Geneva Conventions, the idea that we were going

1081
00:57:51.840 --> 00:57:55.400
to afford those to al Qaeda terrorists

1082
00:57:55.400 --> 00:57:57.680
struck some people as absurd.

1083
00:57:57.680 --> 00:58:02.140
For example, they're entitled to cooking utensils

1084
00:58:02.140 --> 00:58:05.980
including knives, not so good for the U.S. servicemembers

1085
00:58:05.980 --> 00:58:10.023
who would be guarding the al Qaeda terrorists.

1086
00:58:10.023 --> 00:58:13.570
They're entitled to scrip to use at a store

1087
00:58:13.570 --> 00:58:15.482
so they can buy things.

1088
00:58:15.482 --> 00:58:19.630
You know, things like that, people would trot out and say,

1089
00:58:19.630 --> 00:58:20.800
you know, are you kidding me?

1090
00:58:20.800 --> 00:58:23.730
We're going to give, we're going to give, you know,

1091
00:58:23.730 --> 00:58:27.440
Bin Laden or his lieutenants scrip so they can buy Doritos

1092
00:58:27.440 --> 00:58:29.376
at the PX and we're going to give them a knife

1093
00:58:29.376 --> 00:58:32.400
so they can whip up their food.

1094
00:58:32.400 --> 00:58:33.270
It seems silly.

1095
00:58:33.270 --> 00:58:37.390
Now, if the law had required the Geneva Conventions

1096
00:58:37.390 --> 00:58:41.080
to apply to these folks, I don't think any lawyer

1097
00:58:41.080 --> 00:58:44.450
in the administration would have hesitated to apply them,

1098
00:58:44.450 --> 00:58:47.220
again going back to the fact that we were law people.

1099
00:58:47.220 --> 00:58:50.320
We were strict constructionists and you know,

1100
00:58:50.320 --> 00:58:52.600
where the law applies, we were going to apply it

1101
00:58:52.600 --> 00:58:55.930
and not get too funky and creative trying to avoid it,

1102
00:58:55.930 --> 00:58:58.931
but by the very terms of the convention

1103
00:58:58.931 --> 00:59:03.931
it did not seem like they should apply, you know,

1104
00:59:04.050 --> 00:59:07.040
first and foremost because these were not

1105
00:59:07.040 --> 00:59:08.360
people fighting fair.

1106
00:59:08.360 --> 00:59:09.976
These were terrorists.

1107
00:59:09.976 --> 00:59:14.350
They were walking violations of the laws of war.

1108
00:59:14.350 --> 00:59:16.470
They had intentionally attacked thousands

1109
00:59:16.470 --> 00:59:19.560
of civilian office workers in an area

1110
00:59:19.560 --> 00:59:22.800
far removed from any combat zone or battlefield

1111
00:59:22.800 --> 00:59:24.740
and killed thousands of them.

1112
00:59:24.740 --> 00:59:28.530
So, so it didn't look to us like the requirements

1113
00:59:28.530 --> 00:59:31.370
for application of the Geneva Conventions applied

1114
00:59:31.370 --> 00:59:33.986
and the most important policy consideration

1115
00:59:33.986 --> 00:59:36.613
against applying the Geneva Conventions

1116
00:59:36.613 --> 00:59:39.130
had to do with interrogation.

1117
00:59:39.130 --> 00:59:41.230
If you're entitled to be treated as a POW,

1118
00:59:42.280 --> 00:59:45.210
when you're interrogated by your captors,

1119
00:59:45.210 --> 00:59:48.530
you're allowed to give your name, rank, and serial number,

1120
00:59:48.530 --> 00:59:50.506
and say nothing further.

1121
00:59:50.506 --> 00:59:55.506
The overriding objective of everyone involved in this effort

1122
00:59:55.900 --> 00:59:58.650
in the months right after 9/11 was to get

1123
00:59:58.650 --> 01:00:02.720
actionable intelligence from the detainees to try

1124
01:00:02.720 --> 01:00:06.560
to disrupt any plots that were in the works.

1125
01:00:06.560 --> 01:00:10.020
It's hard to put your mind back to that time period

1126
01:00:10.020 --> 01:00:13.923
with the benefit of 14 years now without a successful

1127
01:00:13.923 --> 01:00:18.923
mass casualty attack by Islamic militants on U.S. soil,

1128
01:00:19.570 --> 01:00:21.950
but at the time we didn't know that's the way

1129
01:00:21.950 --> 01:00:26.950
it was going to plan, pan out, and at the time

1130
01:00:27.040 --> 01:00:30.760
there was very much the feeling that they, you know,

1131
01:00:30.760 --> 01:00:32.860
if they pulled off 9/11, they could have something

1132
01:00:32.860 --> 01:00:35.090
even more spectacular in the works,

1133
01:00:35.090 --> 01:00:37.540
a nuclear attack on an American city

1134
01:00:37.540 --> 01:00:41.250
or a biological attack on an American city were regarded

1135
01:00:41.250 --> 01:00:44.491
as quite feasible, quite possible, and something

1136
01:00:44.491 --> 01:00:48.730
to be feared horribly, and the general feeling was

1137
01:00:48.730 --> 01:00:50.960
that if the President and by extension, the people

1138
01:00:50.960 --> 01:00:53.543
serving him were not doing everything they could

1139
01:00:53.543 --> 01:00:57.220
to try to prevent that from happening, that history

1140
01:00:57.220 --> 01:01:00.670
would never forgive us if it did in fact happen.

1141
01:01:00.670 --> 01:01:03.970
So the overriding objective was to get intelligence

1142
01:01:03.970 --> 01:01:07.070
to try to figure out what else al Qaeda might be planning

1143
01:01:07.070 --> 01:01:09.610
so that we could get in and disrupt it and break it up

1144
01:01:09.610 --> 01:01:12.120
and protect Americans from another attack

1145
01:01:12.120 --> 01:01:15.100
like 9/11 or God forbid worse.

1146
01:01:15.100 --> 01:01:20.100
So with that frame of mind, the fact that you would have

1147
01:01:20.410 --> 01:01:23.760
to say, you're really not going to tell me anything else

1148
01:01:23.760 --> 01:01:25.342
other than your name, rank and serial number.

1149
01:01:25.342 --> 01:01:29.552
No, my name is, my rank is, my serial number is

1150
01:01:29.552 --> 01:01:32.290
and then you, you say, well, thank you very much.

1151
01:01:32.290 --> 01:01:33.710
We'll see you tomorrow when we can ask you

1152
01:01:33.710 --> 01:01:37.500
this same question did not seem like a good outcome

1153
01:01:37.500 --> 01:01:39.610
from a policy perspective.

1154
01:01:39.610 --> 01:01:43.000
So the compromise that I believe was eventually worked out

1155
01:01:43.000 --> 01:01:46.883
which accommodated the State Department's concerns about

1156
01:01:46.883 --> 01:01:50.690
not totally disregarding the accepted

1157
01:01:50.690 --> 01:01:53.020
international norms for detainee treatment

1158
01:01:53.020 --> 01:01:55.880
in the Geneva Conventions but still allowed us

1159
01:01:55.880 --> 01:02:00.310
to avoid some of the absurdities of affording cutlery

1160
01:02:00.310 --> 01:02:04.690
and scrip to al Qaeda terrorists and to gain

1161
01:02:04.690 --> 01:02:07.368
some of the advantages in interrogation that you could have

1162
01:02:07.368 --> 01:02:10.957
when you had an unlawful enemy combatant in your hands

1163
01:02:10.957 --> 01:02:15.957
was to, was to declare that the conventions

1164
01:02:16.200 --> 01:02:20.356
did not apply as such but that we were going to apply

1165
01:02:20.356 --> 01:02:23.734
as a matter of executive grace and policy

1166
01:02:23.734 --> 01:02:28.734
every aspect of them that wasn't absurd

1167
01:02:29.460 --> 01:02:31.770
and didn't deprive us of, of those advantages.

1168
01:02:31.770 --> 01:02:34.620
So treat people in a manner broadly consistent

1169
01:02:34.620 --> 01:02:37.460
with the Geneva Conventions, but do not accept

1170
01:02:37.460 --> 01:02:39.070
that as a purely legal matter,

1171
01:02:39.070 --> 01:02:43.290
the terms of those conventions applied in every particular.

1172
01:02:43.290 --> 01:02:44.664
<v Interviewer>When it didn't quite turn out that way,</v>

1173
01:02:44.664 --> 01:02:49.664
do, did people in the Bush's White House regret

1174
01:02:50.290 --> 01:02:52.117
that they made that kind of decision?

1175
01:02:52.117 --> 01:02:54.640
<v ->When you say it didn't turn out that way,</v>

1176
01:02:54.640 --> 01:02:55.473
what do you mean?

1177
01:02:55.473 --> 01:02:58.016
I'm not aware of the Geneva Conventions

1178
01:02:58.016 --> 01:03:01.760
ever really applying to these folks.

1179
01:03:01.760 --> 01:03:03.550
<v Interviewer>Well, because there was abuse</v>

1180
01:03:03.550 --> 01:03:05.230
in Guantanamo and had.

1181
01:03:05.230 --> 01:03:07.410
<v ->Oh, oh, I see what you mean, when it,</v>

1182
01:03:07.410 --> 01:03:09.080
when it didn't turn out that people

1183
01:03:09.080 --> 01:03:11.297
were treated in a humanitarian way.

1184
01:03:11.297 --> 01:03:12.260
<v Interviewer>That's right, that's right.</v>

1185
01:03:12.260 --> 01:03:15.058
<v ->I was long gone by the time Abu Ghraib happened,</v>

1186
01:03:15.058 --> 01:03:19.350
and by the time the investigations into Abu Ghraib

1187
01:03:19.350 --> 01:03:22.030
revealed more of what had happened behind the scenes

1188
01:03:22.030 --> 01:03:24.170
in Guantanamo and elsewhere.

1189
01:03:24.170 --> 01:03:27.346
I left believing that we did not employ

1190
01:03:27.346 --> 01:03:32.346
any rough or coercive techniques even against

1191
01:03:32.690 --> 01:03:35.097
these, these al Qaeda guys.

1192
01:03:35.097 --> 01:03:37.670
In fact, someone, I can't remember who,

1193
01:03:37.670 --> 01:03:40.840
had affirmatively told me that in the context

1194
01:03:40.840 --> 01:03:43.604
of policy debates over access to counsel.

1195
01:03:43.604 --> 01:03:46.013
We had a case.

1196
01:03:46.013 --> 01:03:46.846
<v Interviewer>Told you what?</v>

1197
01:03:46.846 --> 01:03:50.478
<v ->Told me that we did not employ any coercive</v>

1198
01:03:50.478 --> 01:03:55.478
or rough or, you know, physically uncomfortable techniques

1199
01:03:57.828 --> 01:04:00.240
with the detainees.

1200
01:04:00.240 --> 01:04:05.240
I had been told that all the U.S. did was essentially

1201
01:04:05.730 --> 01:04:09.780
use psychological techniques to over time try to break down

1202
01:04:09.780 --> 01:04:11.497
the will of these guys.

1203
01:04:11.497 --> 01:04:14.980
That was one of the reasons that we believed,

1204
01:04:14.980 --> 01:04:18.707
and we told the courts, we believed it was important

1205
01:04:18.707 --> 01:04:21.640
that they not be given access to lawyers,

1206
01:04:21.640 --> 01:04:23.766
not be allowed to sue the President.

1207
01:04:23.766 --> 01:04:28.150
It was, I can't remember whether it was someone

1208
01:04:28.150 --> 01:04:30.923
from the Department of Defense, I think it was,

1209
01:04:30.923 --> 01:04:35.610
or someone from the CIA or both, but at, but at one point

1210
01:04:35.610 --> 01:04:37.770
in a meeting over in the Justice Department,

1211
01:04:37.770 --> 01:04:40.210
as we were discussing the arguments to use

1212
01:04:40.210 --> 01:04:44.574
in this litigation before Judge Doumar down in, in Norfolk,

1213
01:04:44.574 --> 01:04:49.574
it was explained that the way you could get information

1214
01:04:50.114 --> 01:04:55.114
out of these detainees was essentially to cultivate

1215
01:04:55.940 --> 01:04:59.640
a psychological sense of complete isolation,

1216
01:04:59.640 --> 01:05:03.250
hopelessness, and despair so that in the end,

1217
01:05:03.250 --> 01:05:05.415
the only people they really had to talk to

1218
01:05:05.415 --> 01:05:08.423
were their captors, and they eventually wanted

1219
01:05:08.423 --> 01:05:11.460
to please their captors, try to form a relationship

1220
01:05:11.460 --> 01:05:13.660
with their captors and would begin telling

1221
01:05:13.660 --> 01:05:17.628
their captors things, and that what I believed

1222
01:05:17.628 --> 01:05:22.628
the day I left the White House in late January of, of 2003.

1223
01:05:23.270 --> 01:05:26.976
So what people thought and felt when the abuses

1224
01:05:26.976 --> 01:05:29.337
at Abu Ghraib and elsewhere emerged?

1225
01:05:29.337 --> 01:05:30.530
I couldn't say.

1226
01:05:30.530 --> 01:05:33.467
I can tell you that I was shocked and appalled

1227
01:05:33.467 --> 01:05:38.467
and felt that I had been lied to, intentionally or not,

1228
01:05:40.300 --> 01:05:43.703
way back when, when we were litigating those cases.

1229
01:05:45.210 --> 01:05:47.540
<v Interviewer>And you had mentioned you worked</v>

1230
01:05:47.540 --> 01:05:49.376
in another litigation or other matters

1231
01:05:49.376 --> 01:05:54.340
after you worked on the military commissions proposal.

1232
01:05:54.340 --> 01:05:56.510
Can you tell us of a couple?

1233
01:05:56.510 --> 01:05:58.990
<v ->Well, the, the, the creation of the Department</v>

1234
01:05:58.990 --> 01:06:03.140
of Homeland Security was really the next big thing

1235
01:06:03.140 --> 01:06:05.360
that I tackled after military commissions.

1236
01:06:05.360 --> 01:06:06.790
<v Interviewer>That came up that early?</v>

1237
01:06:06.790 --> 01:06:11.090
<v ->Well, it was, it was in the early spring of 2002</v>

1238
01:06:11.090 --> 01:06:13.910
that we began working on that.

1239
01:06:13.910 --> 01:06:16.974
There was a group formed at the White House,

1240
01:06:16.974 --> 01:06:21.608
essentially in secret, totally confidential,

1241
01:06:21.608 --> 01:06:24.620
met after hours in the President's emergency

1242
01:06:24.620 --> 01:06:27.520
operations center without the knowledge of many

1243
01:06:27.520 --> 01:06:30.910
of the most senior members of the White House staff

1244
01:06:30.910 --> 01:06:34.690
to consider whether the government should be restructured

1245
01:06:34.690 --> 01:06:38.464
to better meet the threat of terrorism.

1246
01:06:38.464 --> 01:06:40.030
<v Interviewer>Who chaired that movement?</v>

1247
01:06:40.030 --> 01:06:43.630
<v ->Andy Card, the White House chief of staff at the time,</v>

1248
01:06:43.630 --> 01:06:46.967
I think with the President's knowledge and blessing.

1249
01:06:46.967 --> 01:06:48.840
So a group was convened.

1250
01:06:48.840 --> 01:06:52.410
There were nine people, four principals, and then what was

1251
01:06:52.410 --> 01:06:55.876
referred to colloquially by us as the G5, the group of five

1252
01:06:55.876 --> 01:07:00.876
who were subordinates of those four more senior officials,

1253
01:07:03.160 --> 01:07:07.910
and the nine of us met throughout the spring of 2002

1254
01:07:07.910 --> 01:07:11.810
to try to consider the question, blue sky,

1255
01:07:11.810 --> 01:07:16.500
leave aside political feasibility, what is the best answer

1256
01:07:16.500 --> 01:07:19.498
for the country and for the structure of our government

1257
01:07:19.498 --> 01:07:22.037
to dealing with the threat of terrorism,

1258
01:07:22.037 --> 01:07:25.090
and it had been provoked in part by

1259
01:07:25.090 --> 01:07:29.070
some congressional criticism of our unwillingness

1260
01:07:29.070 --> 01:07:32.010
as an administration to have Tom Ridge,

1261
01:07:32.010 --> 01:07:34.800
the Homeland Security Advisor, who was then a member

1262
01:07:34.800 --> 01:07:38.156
of the White House staff, go up to Congress and testify

1263
01:07:38.156 --> 01:07:40.270
about what we were doing.

1264
01:07:40.270 --> 01:07:43.500
There's a longstanding position that incumbent members

1265
01:07:43.500 --> 01:07:48.000
of the White House staff are covered by executive privilege,

1266
01:07:48.000 --> 01:07:51.662
do not have to go up to Congress and answer their questions

1267
01:07:51.662 --> 01:07:55.130
in the interest of protecting the institutional interests

1268
01:07:55.130 --> 01:07:57.020
of the presidency.

1269
01:07:57.020 --> 01:07:59.170
We were not allowing Ridge to go up and testify,

1270
01:07:59.170 --> 01:08:01.670
but there was a recognition by Andy Card

1271
01:08:01.670 --> 01:08:04.440
and by the President and by judge Gonzales

1272
01:08:04.440 --> 01:08:06.627
that Congress had a legitimate interest

1273
01:08:06.627 --> 01:08:09.324
and a legitimate need and desire to hear more

1274
01:08:09.324 --> 01:08:13.560
about what was happening and one of the possible solutions

1275
01:08:13.560 --> 01:08:16.096
to that was in fact to go ahead and create

1276
01:08:16.096 --> 01:08:18.965
either a statutory office within the White House

1277
01:08:18.965 --> 01:08:22.120
or a department or agency of government.

1278
01:08:22.120 --> 01:08:25.333
I think Joe Lieberman had been one of the guys at the time

1279
01:08:25.333 --> 01:08:30.290
who was critical of our views on this issue.

1280
01:08:30.290 --> 01:08:32.580
People around the White House respected him

1281
01:08:32.580 --> 01:08:37.580
and his, his opinions and I think, I think it got through

1282
01:08:38.208 --> 01:08:43.208
and so I think catalyzed, at least in part by that issue

1283
01:08:43.530 --> 01:08:46.370
of who can we have go up to Congress and testify,

1284
01:08:46.370 --> 01:08:48.070
but in part by considerations of,

1285
01:08:48.070 --> 01:08:51.388
okay, this is a good time to sit back and look at whether

1286
01:08:51.388 --> 01:08:54.507
we really are optimally structured to meet

1287
01:08:54.507 --> 01:08:57.030
the modern threat of terrorism.

1288
01:08:57.030 --> 01:09:01.746
This working group was, was formed and developed the policy

1289
01:09:01.746 --> 01:09:05.400
in the spring of 2002 that ultimately led to

1290
01:09:05.400 --> 01:09:09.556
the President's announcement on June sixth or seventh, 2002

1291
01:09:09.556 --> 01:09:12.620
that he was going to be sending Congress a bill

1292
01:09:12.620 --> 01:09:15.810
to create the Department of Homeland Security.

1293
01:09:15.810 --> 01:09:18.940
The four senior officials who were part of this group

1294
01:09:18.940 --> 01:09:20.790
were Andy Card himself representing

1295
01:09:20.790 --> 01:09:23.910
the Chief of Staff's office, my boss, Judge Gonzales,

1296
01:09:23.910 --> 01:09:28.910
the counsel to the President, Tom Ridge, who was the,

1297
01:09:30.050 --> 01:09:35.050
the Homeland Security Advisor and the fourth,

1298
01:09:38.390 --> 01:09:42.740
I don't know why I'm having trouble remembering this,

1299
01:09:42.740 --> 01:09:45.812
oh, the, the, the Office of Management and Budget,

1300
01:09:45.812 --> 01:09:50.812
Mitch Daniels and 'cause 'cause OMB has responsibility

1301
01:09:51.370 --> 01:09:54.987
for the organization of government among other things.

1302
01:09:54.987 --> 01:09:59.987
Each of those principals was allowed to pick one person

1303
01:10:00.240 --> 01:10:03.320
to help them with this with the exception of Ridge,

1304
01:10:03.320 --> 01:10:07.970
who was allowed to pick two because obviously they were

1305
01:10:07.970 --> 01:10:11.430
the central policy driver on this question,

1306
01:10:11.430 --> 01:10:12.950
the Office of Homeland Security within

1307
01:10:12.950 --> 01:10:14.440
the White House at the time.

1308
01:10:14.440 --> 01:10:17.574
So I was Gonzales's designee and I worked with the G5

1309
01:10:17.574 --> 01:10:21.391
over those months, reported into the four principals,

1310
01:10:21.391 --> 01:10:25.670
and eventually we, we achieved consensus on

1311
01:10:25.670 --> 01:10:27.257
what to recommend to the President.

1312
01:10:27.257 --> 01:10:30.550
Andy Card took that into the President,

1313
01:10:30.550 --> 01:10:32.890
Andy Card and Tom Ridge, he approved,

1314
01:10:32.890 --> 01:10:34.340
and it was announced in June.

1315
01:10:35.237 --> 01:10:37.230
<v Interviewer>And was there any input at all</v>

1316
01:10:37.230 --> 01:10:40.310
from the DOJ or the DOD or the State Department?

1317
01:10:40.310 --> 01:10:43.250
Did any of the non-members know?

1318
01:10:43.250 --> 01:10:44.440
It was entirely a.

1319
01:10:44.440 --> 01:10:47.868
<v ->It was entirely a White House operation,</v>

1320
01:10:47.868 --> 01:10:52.868
and that is not an approach that in general is designed

1321
01:10:54.970 --> 01:10:58.337
to maximize the accuracy of the decision,

1322
01:10:58.337 --> 01:11:01.050
the quality of the decision.

1323
01:11:01.050 --> 01:11:06.050
What it does maximize is speed, and also the ability

1324
01:11:08.220 --> 01:11:11.580
to make a big change as to which there might otherwise

1325
01:11:11.580 --> 01:11:14.340
be a lot of internal resistance.

1326
01:11:14.340 --> 01:11:17.460
Andy Card's calculation, as I understood it at the time,

1327
01:11:17.460 --> 01:11:21.700
was that if word got out, forget about the press,

1328
01:11:21.700 --> 01:11:25.730
but to the Cabinet secretaries and the heads of the agencies

1329
01:11:25.730 --> 01:11:28.010
that this was under consideration,

1330
01:11:28.010 --> 01:11:31.100
immediately turf wars would break out

1331
01:11:31.100 --> 01:11:34.666
and the Cabinet secretaries and other appointees

1332
01:11:34.666 --> 01:11:38.600
and the career civil servants at senior levels

1333
01:11:38.600 --> 01:11:41.527
in the departments and agencies would throw so much sand

1334
01:11:41.527 --> 01:11:43.711
into the works, we'd never be able to do anything big.

1335
01:11:43.711 --> 01:11:48.020
So the calculation was made that to preserve

1336
01:11:48.020 --> 01:11:50.560
our freedom of action, this small group of nine of us

1337
01:11:50.560 --> 01:11:53.300
would try to figure out what the best answer was,

1338
01:11:53.300 --> 01:11:56.340
and after we decided what the best answer was

1339
01:11:56.340 --> 01:12:01.230
we would announce it in, in broad strokes and take input

1340
01:12:01.230 --> 01:12:05.210
at that point from the Cabinet departments and agencies,

1341
01:12:05.210 --> 01:12:09.410
as well as from interested parties on Capitol Hill,

1342
01:12:09.410 --> 01:12:11.680
and we would be flexible and make changes

1343
01:12:11.680 --> 01:12:13.498
where they made sense but at that point,

1344
01:12:13.498 --> 01:12:16.130
we'd have the momentum behind us.

1345
01:12:16.130 --> 01:12:18.400
All of the President's appointees would know that

1346
01:12:18.400 --> 01:12:21.440
this was a signature initiative that they were expected

1347
01:12:21.440 --> 01:12:23.870
to fall behind and support, except to the extent

1348
01:12:23.870 --> 01:12:26.590
they really felt we were making a huge mistake,

1349
01:12:26.590 --> 01:12:30.210
and in fact, that's, that's the way it worked and I think

1350
01:12:30.210 --> 01:12:33.910
everybody involved in that process including, Andy Card,

1351
01:12:33.910 --> 01:12:37.107
felt that it really would not have worked any other way.

1352
01:12:37.107 --> 01:12:39.430
<v Interviewer>Were, I, the way you mentioned</v>

1353
01:12:39.430 --> 01:12:41.900
Joe Lieberman, was he aware of this?

1354
01:12:41.900 --> 01:12:44.438
<v ->He was not aware and he was royally pissed off</v>

1355
01:12:44.438 --> 01:12:47.210
after the President's announcement.

1356
01:12:47.210 --> 01:12:50.430
I guess, to be fair it was a mixture of pissed off

1357
01:12:50.430 --> 01:12:53.640
and gratified because he had been working on this issue

1358
01:12:53.640 --> 01:12:57.330
a long time, he and his staff, and they had proposals

1359
01:12:57.330 --> 01:13:00.160
for doing something like this on the shelf

1360
01:13:00.160 --> 01:13:02.150
that they had been advocating.

1361
01:13:02.150 --> 01:13:05.530
So on the one hand, he was happy to see that,

1362
01:13:05.530 --> 01:13:09.060
that the President ultimately agreed with the drift

1363
01:13:09.060 --> 01:13:11.550
of his thinking and was going to get behind doing something

1364
01:13:11.550 --> 01:13:16.060
that he thought made sense, but also I think angry

1365
01:13:16.060 --> 01:13:19.530
that all the good work and thinking that he and his staff

1366
01:13:19.530 --> 01:13:22.540
had done over a long period of time had not really

1367
01:13:22.540 --> 01:13:24.680
been taken into account by the White House

1368
01:13:24.680 --> 01:13:26.600
in formulating the policy.

1369
01:13:26.600 --> 01:13:28.650
They were only half right about that.

1370
01:13:28.650 --> 01:13:31.439
We did study all of the work that had been done on this

1371
01:13:31.439 --> 01:13:34.677
to the extent it was embodied in public reports,

1372
01:13:34.677 --> 01:13:37.420
whether emanating from Capitol Hill

1373
01:13:37.420 --> 01:13:39.470
or from academic experts.

1374
01:13:39.470 --> 01:13:43.168
So there, there were five or six major proposals

1375
01:13:43.168 --> 01:13:47.368
to do something like this that had been floating around

1376
01:13:47.368 --> 01:13:50.020
in the think tank world, the academic world,

1377
01:13:50.020 --> 01:13:53.860
and on Capitol Hill for years and the G5

1378
01:13:53.860 --> 01:13:56.890
and the broader group took careful stock of those,

1379
01:13:56.890 --> 01:13:58.671
analyzed those, we made presentations

1380
01:13:58.671 --> 01:14:02.000
to the senior leadership of the White House involved in this

1381
01:14:02.000 --> 01:14:05.006
on what the solutions were that were recommended

1382
01:14:05.006 --> 01:14:08.900
by those other folks, but needless to say, the lack

1383
01:14:08.900 --> 01:14:12.800
of real-time consultation and collaboration and cooperation

1384
01:14:12.800 --> 01:14:17.440
with Senator Lieberman and his staff stuck in their craw,

1385
01:14:17.440 --> 01:14:21.210
and when we sent them up a bill, an actual draft bill,

1386
01:14:21.210 --> 01:14:25.170
they were pretty unhappy about it too.

1387
01:14:25.170 --> 01:14:27.630
This was the first piece of legislation the President

1388
01:14:27.630 --> 01:14:29.370
had actually sent up to Capitol Hill.

1389
01:14:29.370 --> 01:14:31.030
He had set up the outlines

1390
01:14:31.030 --> 01:14:34.897
of policy proposals before, never bill text.

1391
01:14:34.897 --> 01:14:37.150
Right after the President's announcement,

1392
01:14:37.150 --> 01:14:40.650
I think that night, we watched it in the Roosevelt Room

1393
01:14:40.650 --> 01:14:43.760
in the West Wing, I think that night Andy tasked me

1394
01:14:43.760 --> 01:14:46.217
with taking charge of actually writing the legislation

1395
01:14:46.217 --> 01:14:49.640
and I got a group together and over the next

1396
01:14:51.570 --> 01:14:54.160
very short period of time, just a few weeks,

1397
01:14:54.160 --> 01:14:57.870
one of the most intense weeks of work in a career

1398
01:14:57.870 --> 01:15:01.356
that has involved many, very intense periods

1399
01:15:01.356 --> 01:15:06.356
of weeks of work, we did draft a bill, but it was short

1400
01:15:06.750 --> 01:15:10.690
and it maximized executive flexibility to make

1401
01:15:10.690 --> 01:15:12.640
the department work and to reorganize it

1402
01:15:12.640 --> 01:15:13.850
if it wasn't working.

1403
01:15:13.850 --> 01:15:17.610
You know, it might've been 38 pages, 39 pages.

1404
01:15:17.610 --> 01:15:21.096
You know, Lieberman had 250 pages of bill text

1405
01:15:21.096 --> 01:15:25.540
sitting in his committee offices, and so we had

1406
01:15:25.540 --> 01:15:28.077
some tough meetings with them in the immediate aftermath

1407
01:15:28.077 --> 01:15:32.137
of sending it up in which the staff was quizzing us

1408
01:15:32.137 --> 01:15:37.137
about why we hadn't adopted this or that section, part,

1409
01:15:37.210 --> 01:15:42.210
subpart of the bills that they had already written up.

1410
01:15:42.450 --> 01:15:45.570
You know, there was a little bit of a bridling at the fact

1411
01:15:45.570 --> 01:15:47.980
that we had just started with a clean sheet of paper.

1412
01:15:47.980 --> 01:15:50.216
<v Interviewer>And you were, you were the lead.</v>

1413
01:15:50.216 --> 01:15:52.610
From what you're explaining, you were the lead

1414
01:15:52.610 --> 01:15:56.140
Bush White House person on this legislation.

1415
01:15:56.140 --> 01:15:57.980
<v ->On drafting it, on drafting it.</v>

1416
01:15:57.980 --> 01:16:02.980
The proposal, the policy was driven by Tom Ridge

1417
01:16:03.410 --> 01:16:08.360
and his two staffers, Richard Falconwrath, who subsequently

1418
01:16:08.360 --> 01:16:11.700
became White House Homeland Security Advisor

1419
01:16:11.700 --> 01:16:15.397
after Ridge went over to become Homeland Security Secretary.

1420
01:16:15.397 --> 01:16:20.106
General Bruce Lawler was Ridge's second person

1421
01:16:20.106 --> 01:16:21.868
working on that and then Joel Kaplan,

1422
01:16:21.868 --> 01:16:26.868
who was working for Andy Card was really instrumental

1423
01:16:27.850 --> 01:16:30.080
in the policy development as well.

1424
01:16:30.080 --> 01:16:32.388
He subsequently became deputy chief of staff

1425
01:16:32.388 --> 01:16:35.630
later in the administration.

1426
01:16:35.630 --> 01:16:39.250
So I was not the policy lead for figuring out whether

1427
01:16:39.250 --> 01:16:41.590
there should be a department and what it should look like,

1428
01:16:41.590 --> 01:16:43.190
although I was part of the small group

1429
01:16:43.190 --> 01:16:45.217
that deliberated on those questions.

1430
01:16:45.217 --> 01:16:49.360
Where I did have the lead was in actually drafting

1431
01:16:49.360 --> 01:16:51.605
the legislation to send up to the Congress.

1432
01:16:51.605 --> 01:16:54.260
Why, because I was the lawyer.

1433
01:16:54.260 --> 01:16:56.210
<v Interviewer>Well, who, when you said you had a staff,</v>

1434
01:16:56.210 --> 01:16:58.427
who was your staff if you were associate?

1435
01:16:58.427 --> 01:17:00.640
<v ->Well, it was not comprised of other members</v>

1436
01:17:00.640 --> 01:17:02.990
of the White House Counsel's office.

1437
01:17:02.990 --> 01:17:06.060
I had never drafted a bill in my life.

1438
01:17:06.060 --> 01:17:08.560
I'd never worked on Capitol Hill.

1439
01:17:08.560 --> 01:17:10.810
I had never drafted a bit of bill text.

1440
01:17:10.810 --> 01:17:13.570
I was certainly familiar with legislation from my work

1441
01:17:13.570 --> 01:17:16.070
as a lawyer over the years but I reached

1442
01:17:16.070 --> 01:17:19.720
into the departments and agency, departments and agencies,

1443
01:17:19.720 --> 01:17:23.030
and put together a dream team of some of

1444
01:17:23.030 --> 01:17:27.970
the best bill draftsmen from within the federal government.

1445
01:17:27.970 --> 01:17:30.250
There, there were people very expert in this.

1446
01:17:30.250 --> 01:17:31.890
There was one from the Justice Department,

1447
01:17:31.890 --> 01:17:36.580
one from the Treasury Department, and we set up a war room

1448
01:17:36.580 --> 01:17:38.960
in the old executive office building and worked around

1449
01:17:38.960 --> 01:17:42.496
the clock for weeks until we had a bill.

1450
01:17:42.496 --> 01:17:45.430
<v Interviewer>Was there any discussion on whether</v>

1451
01:17:45.430 --> 01:17:50.430
the agency was too large, in fact, maybe in absorbing

1452
01:17:50.650 --> 01:17:53.620
these other agencies into Homeland Security,

1453
01:17:53.620 --> 01:17:56.897
you were actually creating something that was two mammoth?

1454
01:17:56.897 --> 01:18:00.900
<v ->Would, would create dysfunction or clumsiness</v>

1455
01:18:00.900 --> 01:18:02.590
or cause problems, rather than solve problems?

1456
01:18:02.590 --> 01:18:03.967
Sure, of course.

1457
01:18:03.967 --> 01:18:08.967
We were very much concerned with optimizing the thing.

1458
01:18:09.220 --> 01:18:12.930
At the same time, we knew two things.

1459
01:18:12.930 --> 01:18:14.950
One, that it would be a political loser

1460
01:18:14.950 --> 01:18:16.650
in the short term for President Bush.

1461
01:18:16.650 --> 01:18:19.660
None of us thought this was going to be a big political win.

1462
01:18:19.660 --> 01:18:21.784
Why, because we knew it wouldn't work

1463
01:18:21.784 --> 01:18:24.450
all that well in the early going.

1464
01:18:24.450 --> 01:18:27.538
Nothing that big, that ambitious, or that complex

1465
01:18:27.538 --> 01:18:29.740
ever does or ever could.

1466
01:18:29.740 --> 01:18:33.780
Among the things we studied were the, the creation

1467
01:18:33.780 --> 01:18:36.990
of the most recent Cabinet departments, the Department

1468
01:18:36.990 --> 01:18:39.634
of Energy, I think the Department of Transportation.

1469
01:18:39.634 --> 01:18:42.210
We got, we went back and looked at the history

1470
01:18:42.210 --> 01:18:44.425
of those things, and you could look in every case

1471
01:18:44.425 --> 01:18:47.900
two, three, four years out on the anniversary

1472
01:18:47.900 --> 01:18:50.342
of their creation Time Magazine would run a big story

1473
01:18:50.342 --> 01:18:54.453
talking about how dysfunctional and what a screwed up mess

1474
01:18:54.453 --> 01:18:56.800
the new department was.

1475
01:18:56.800 --> 01:19:00.100
It was almost a, a law of nature that you create

1476
01:19:00.100 --> 01:19:01.960
a new government department and it's gonna take

1477
01:19:01.960 --> 01:19:04.760
a few years to really work well.

1478
01:19:04.760 --> 01:19:08.110
So we were keenly aware of the political downsides

1479
01:19:08.110 --> 01:19:09.620
for the President as was he.

1480
01:19:09.620 --> 01:19:12.320
It's very much to his credit he decided to move forward

1481
01:19:12.320 --> 01:19:15.300
because he felt it was the right thing to do

1482
01:19:15.300 --> 01:19:18.950
notwithstanding some of the disadvantages to him personally

1483
01:19:18.950 --> 01:19:22.420
as a political matter and, and very concerned

1484
01:19:22.420 --> 01:19:24.306
with trying to get it right.

1485
01:19:24.306 --> 01:19:27.530
We would not have done it if we thought it would make

1486
01:19:27.530 --> 01:19:30.083
the country more vulnerable in the short run,

1487
01:19:30.083 --> 01:19:32.820
even to get those long-term advantages.

1488
01:19:32.820 --> 01:19:37.140
We did have to satisfy ourselves that things would work

1489
01:19:37.140 --> 01:19:41.454
at least as well in the immediate post-creation period

1490
01:19:41.454 --> 01:19:46.160
as they were working previously.

1491
01:19:46.160 --> 01:19:48.722
So, you know, not everything that was proposed to go

1492
01:19:48.722 --> 01:19:51.520
into the department ended up in the department.

1493
01:19:51.520 --> 01:19:55.530
It wasn't the maximalist answer that rolled out at the end.

1494
01:19:55.530 --> 01:19:57.620
For example, there was a time when we were thinking

1495
01:19:57.620 --> 01:20:02.360
about having the Coast Guard as part of this department

1496
01:20:02.360 --> 01:20:05.210
and it did not end up in the department.

1497
01:20:05.210 --> 01:20:09.500
So, so yes, there was sensitivity to the problems

1498
01:20:09.500 --> 01:20:11.711
of size, of scope, of coordination.

1499
01:20:11.711 --> 01:20:15.112
I would say the big drivers, the big reason it was done

1500
01:20:15.112 --> 01:20:20.112
was a unity of command, centering authority over

1501
01:20:22.570 --> 01:20:27.202
all the pieces of the puzzle for prevention of threats,

1502
01:20:27.202 --> 01:20:31.702
detection of threats, and responses to attacks

1503
01:20:31.702 --> 01:20:36.702
under a single Cabinet officer who could be accountable

1504
01:20:37.270 --> 01:20:41.010
for the results across that range of activities,

1505
01:20:41.010 --> 01:20:43.980
who could be accountable to his boss, his or her boss,

1506
01:20:43.980 --> 01:20:47.640
the President, also accountable to Capitol Hill

1507
01:20:47.640 --> 01:20:50.020
and to the public, and who would have the authority

1508
01:20:50.020 --> 01:20:53.940
to make them all work together, to break down the silos

1509
01:20:53.940 --> 01:20:55.610
that were otherwise separating them

1510
01:20:55.610 --> 01:20:57.610
and preventing effective coordination.

1511
01:20:57.610 --> 01:21:02.210
So centralizing that responsibility and that authority

1512
01:21:02.210 --> 01:21:05.034
in a single Cabinet department was the overriding

1513
01:21:05.034 --> 01:21:09.960
policy reason why that group of nine people

1514
01:21:09.960 --> 01:21:11.700
ultimately recommended to the President

1515
01:21:11.700 --> 01:21:13.693
that the department be created.

1516
01:21:14.733 --> 01:21:15.606
<v Interviewer>You know, I listen to you.</v>

1517
01:21:15.606 --> 01:21:17.250
I'm thinking, and I'm not sure you wanna answer this,

1518
01:21:17.250 --> 01:21:19.438
but I'm thinking, you're a lawyer and lawyers are paid

1519
01:21:19.438 --> 01:21:21.925
by their clients to do the work of their clients,

1520
01:21:21.925 --> 01:21:24.430
but it sounds like you grew in this job.

1521
01:21:24.430 --> 01:21:26.666
Did you really believe in this powerful executive

1522
01:21:26.666 --> 01:21:29.350
when you started or did you come to believe it

1523
01:21:29.350 --> 01:21:32.343
as you observed what was going on post-9/11?

1524
01:21:33.220 --> 01:21:35.370
<v ->Yeah, that's a very interesting question.</v>

1525
01:21:36.400 --> 01:21:38.890
The short answer is both.

1526
01:21:38.890 --> 01:21:43.762
I came in a believer in executive power, especially in

1527
01:21:43.762 --> 01:21:47.369
the field of foreign affairs and national security,

1528
01:21:47.369 --> 01:21:51.882
and left an even more convinced and more passionate believer

1529
01:21:51.882 --> 01:21:54.593
in executive power, again, especially in

1530
01:21:54.593 --> 01:21:57.950
foreign affairs and national security.

1531
01:21:57.950 --> 01:22:01.229
I think I had, have always had and continue to have

1532
01:22:01.229 --> 01:22:04.330
a healthy respect for the rights and prerogatives

1533
01:22:04.330 --> 01:22:09.330
of Congress as the people closest to the public

1534
01:22:10.230 --> 01:22:13.000
and closest to their constituencies, whether in

1535
01:22:13.000 --> 01:22:16.430
an entire state or in a congressional district.

1536
01:22:16.430 --> 01:22:20.700
I wouldn't say I ever felt a disrespect for Congress

1537
01:22:20.700 --> 01:22:24.082
as an institution or the members of Congress,

1538
01:22:24.082 --> 01:22:28.600
but I was a Hamiltonian and very much believed

1539
01:22:28.600 --> 01:22:31.712
in the advantages laid out in the Federalist papers

1540
01:22:31.712 --> 01:22:36.080
for executive supremacy in the field of foreign affairs

1541
01:22:36.080 --> 01:22:39.900
and national security as a complement and parallel

1542
01:22:39.900 --> 01:22:43.593
to real legislative suprematy, supremacy in the field

1543
01:22:43.593 --> 01:22:45.260
of domestic affairs.

1544
01:22:46.463 --> 01:22:48.232
<v Interviewer>So you were comfortable watching,</v>

1545
01:22:48.232 --> 01:22:51.121
watching yourself evolving, growing during these two years,

1546
01:22:51.121 --> 01:22:53.462
you were comfortable in what you were.

1547
01:22:53.462 --> 01:22:57.462
<v ->Yeah, I was, and you can't possibly be sitting</v>

1548
01:23:00.029 --> 01:23:04.670
in the White House during an event like 9/11 and then watch

1549
01:23:04.670 --> 01:23:08.341
what unfolds in the days and weeks after 9/11

1550
01:23:08.341 --> 01:23:13.341
from that vantage point and not become a passionate believer

1551
01:23:14.113 --> 01:23:17.990
in the ability of the President to respond.

1552
01:23:17.990 --> 01:23:22.990
I imagine it's how FDR's staffers felt in the middle of,

1553
01:23:23.213 --> 01:23:27.609
of the Depression as he was cranking up the New Deal.

1554
01:23:27.609 --> 01:23:32.030
One thing that I observed when I was there is that

1555
01:23:32.030 --> 01:23:37.030
in a true crisis, power immediately floods into the center.

1556
01:23:38.192 --> 01:23:43.080
The appointees, most of them become a little bit paralyzed

1557
01:23:43.080 --> 01:23:46.103
and worried for a combination of reasons,

1558
01:23:46.103 --> 01:23:50.863
and the normal processes by which policy gets made

1559
01:23:50.863 --> 01:23:55.863
are generally not fast enough and not efficient enough

1560
01:23:56.463 --> 01:23:59.620
to respond to the exigencies of a crisis.

1561
01:23:59.620 --> 01:24:04.310
So of necessity, power rushes to the center of government

1562
01:24:04.310 --> 01:24:08.380
or of a big corporation like this in a crisis,

1563
01:24:08.380 --> 01:24:11.023
and the leader of that organization begins exercising it

1564
01:24:11.023 --> 01:24:16.023
much more personally, and his or her immediate staff,

1565
01:24:16.640 --> 01:24:19.400
the people who are his right and left arm

1566
01:24:19.400 --> 01:24:22.370
and right and left leg, began exercising it

1567
01:24:22.370 --> 01:24:24.972
much more directly in his name than they would

1568
01:24:24.972 --> 01:24:27.822
under ordinary circumstances,

1569
01:24:27.822 --> 01:24:31.160
and that's a good thing, not a bad thing.

1570
01:24:31.160 --> 01:24:34.931
There's a price to be paid for it when you go fast

1571
01:24:34.931 --> 01:24:38.900
and you're acting on less complete information

1572
01:24:38.900 --> 01:24:40.920
than you would otherwise have, and you're acting

1573
01:24:40.920 --> 01:24:43.650
without the benefit of the fuller, more robust,

1574
01:24:43.650 --> 01:24:46.180
thoughtful debates you would otherwise have.

1575
01:24:46.180 --> 01:24:48.450
Some of your decisions are going to be worse.

1576
01:24:48.450 --> 01:24:49.970
You're going to make more mistakes.

1577
01:24:49.970 --> 01:24:52.940
Your policies are going to be less perfect.

1578
01:24:52.940 --> 01:24:54.990
I'm pretty sure I understood that at the time,

1579
01:24:54.990 --> 01:24:57.662
and I think other people understood it at the time

1580
01:24:57.662 --> 01:25:00.510
but it's an absolute necessity.

1581
01:25:00.510 --> 01:25:04.820
You just can't stand around and wait when there

1582
01:25:04.820 --> 01:25:09.212
might be another mass casualty attack just around the corner

1583
01:25:09.212 --> 01:25:12.560
to achieve consensus within your own administration,

1584
01:25:12.560 --> 01:25:17.540
much less on Capitol Hill, and the founders,

1585
01:25:17.540 --> 01:25:20.081
in drafting the Constitution, had actually been

1586
01:25:20.081 --> 01:25:24.803
very mindful of that because of the experience

1587
01:25:24.803 --> 01:25:26.939
that they had had during the Revolution

1588
01:25:26.939 --> 01:25:31.939
when General Washington's leadership had been essential

1589
01:25:33.060 --> 01:25:38.060
to, to victory, during the Articles of Confederation period

1590
01:25:38.670 --> 01:25:42.190
after the Revolution when the lack of a strong executive

1591
01:25:42.190 --> 01:25:46.720
had really hampered the country's ability to be effective,

1592
01:25:46.720 --> 01:25:51.720
especially on the world stage, and, and so the Constitution

1593
01:25:51.940 --> 01:25:56.850
is informed very much by the view that as much

1594
01:25:56.850 --> 01:26:00.420
as we want checks and balances in the domestic sphere

1595
01:26:00.420 --> 01:26:02.589
to ensure that our own citizens' rights

1596
01:26:02.589 --> 01:26:07.500
are not lightly abused, that in the foreign sphere

1597
01:26:07.500 --> 01:26:09.390
and in national security affairs

1598
01:26:09.390 --> 01:26:10.907
we need what Hamilton called

1599
01:26:10.907 --> 01:26:12.421
"the secrecy and dispatch

1600
01:26:12.421 --> 01:26:16.560
"that only a unitary executive could provide."

1601
01:26:16.560 --> 01:26:19.179
You needed an executive that could make decisions,

1602
01:26:19.179 --> 01:26:23.970
act quickly, respond to things happening around the world,

1603
01:26:23.970 --> 01:26:27.351
and since the time of the Constitution's adoption,

1604
01:26:27.351 --> 01:26:32.050
those fundamental policy imperatives that lie behind

1605
01:26:32.050 --> 01:26:36.329
the structure of the Constitution had only become stronger

1606
01:26:36.329 --> 01:26:40.220
as the speed of information and the speed of foreign affairs

1607
01:26:40.220 --> 01:26:43.411
and the nature of national security threats

1608
01:26:43.411 --> 01:26:47.200
just grew and grew and grew.

1609
01:26:47.200 --> 01:26:50.222
It all happens at warp speed now and so, yeah,

1610
01:26:50.222 --> 01:26:53.700
I left a very convinced believer, an even

1611
01:26:53.700 --> 01:26:56.592
more convinced believer than I had been at the outset

1612
01:26:56.592 --> 01:27:01.592
of that, of that basic principle, but subject to restraints.

1613
01:27:01.610 --> 01:27:04.870
So I testified in Congress a few times in the years

1614
01:27:04.870 --> 01:27:07.143
after I left the White House in, including on issues

1615
01:27:07.143 --> 01:27:12.143
like Congress' ability to end a war that they didn't like,

1616
01:27:15.280 --> 01:27:20.000
and I like to think that I articulated pretty nuanced views

1617
01:27:20.000 --> 01:27:22.420
of a question like that, consistent with the text

1618
01:27:22.420 --> 01:27:24.431
and structure of the Constitution so it's not

1619
01:27:24.431 --> 01:27:29.431
a blind executive supremacy or an unlimited view

1620
01:27:30.120 --> 01:27:31.863
of, of executive authority.

1621
01:27:32.817 --> 01:27:37.817
<v Interviewer>Okay, did you see any pushback from Cheney</v>

1622
01:27:39.670 --> 01:27:42.790
or push forward from Cheney when if you were working

1623
01:27:42.790 --> 01:27:45.710
for President Bush, was there any,

1624
01:27:45.710 --> 01:27:47.523
maybe you don't want to respond much on that,

1625
01:27:47.523 --> 01:27:50.400
but was there conflict in that sense?

1626
01:27:50.400 --> 01:27:53.670
'Cause obviously as an outsider, we hear that Cheney

1627
01:27:53.670 --> 01:27:57.047
did make policy and did sometimes lead policy.

1628
01:27:57.047 --> 01:28:01.200
Did that affect the way you, your role?

1629
01:28:01.200 --> 01:28:06.010
<v ->So bearing in mind that I was there from January 2001</v>

1630
01:28:06.010 --> 01:28:11.010
to January 2003, I never saw conflict between

1631
01:28:13.230 --> 01:28:16.100
the office of the Vice President and the executive office

1632
01:28:16.100 --> 01:28:19.320
of the President on these kinds of issues.

1633
01:28:19.320 --> 01:28:22.040
There was very much a feeling that the President

1634
01:28:22.040 --> 01:28:25.310
and the Vice President shared the same basic view

1635
01:28:25.310 --> 01:28:28.259
of the world, the same basic policy objectives,

1636
01:28:28.259 --> 01:28:32.120
that they were in the boat together,

1637
01:28:32.120 --> 01:28:34.300
rowing in the same direction, and that we

1638
01:28:34.300 --> 01:28:37.430
as their respective staffs were in that boat,

1639
01:28:37.430 --> 01:28:39.961
rowing in that direction too.

1640
01:28:39.961 --> 01:28:42.907
It is certainly the case that the Vice President

1641
01:28:42.907 --> 01:28:45.792
and his lawyer, David Addington, had a serious

1642
01:28:45.792 --> 01:28:50.269
and meaningful voice on this whole range of issues.

1643
01:28:50.269 --> 01:28:53.870
President Bush, at least in those early years

1644
01:28:53.870 --> 01:28:56.390
from what I observed, had great respect

1645
01:28:56.390 --> 01:28:59.310
for his Vice President, who did after all have one

1646
01:28:59.310 --> 01:29:03.590
of the more incredible resumes in the history of government

1647
01:29:03.590 --> 01:29:06.509
and was a very wise and tough character.

1648
01:29:06.509 --> 01:29:10.910
By luck really, he's someone who had spent much more of

1649
01:29:10.910 --> 01:29:13.003
his time in public service thinking about national

1650
01:29:13.003 --> 01:29:16.350
security threats and things like terrorism than most,

1651
01:29:16.350 --> 01:29:18.890
and I think the President was grateful to have

1652
01:29:18.890 --> 01:29:21.540
his expertise and his advice.

1653
01:29:21.540 --> 01:29:24.112
So when he wanted to play in an issue, he did,

1654
01:29:24.112 --> 01:29:28.010
and his lawyer, David Addington, who was also

1655
01:29:28.010 --> 01:29:31.300
a very experienced government guy, very smart,

1656
01:29:31.300 --> 01:29:34.620
very tough, had worked with the Vice President

1657
01:29:34.620 --> 01:29:39.210
on Capitol Hill and also in the Department of Defense

1658
01:29:39.210 --> 01:29:42.454
when Vice President Cheney had been Secretary of Defense,

1659
01:29:42.454 --> 01:29:47.131
was very active in these issues, was an incredible workhorse

1660
01:29:47.131 --> 01:29:51.363
capable of producing a lot of creative thinking.

1661
01:29:51.363 --> 01:29:56.363
I didn't always agree with all of the ways in which

1662
01:29:56.560 --> 01:29:59.270
the Vice President or David Addington went about trying

1663
01:29:59.270 --> 01:30:03.931
to get their way in policy disputes or fights or issues,

1664
01:30:03.931 --> 01:30:08.800
but that was a matter of means, not ends.

1665
01:30:08.800 --> 01:30:13.300
On the ends, there was almost total synchronicity

1666
01:30:13.300 --> 01:30:14.893
during the time I was there.

1667
01:30:16.055 --> 01:30:18.060
<v Interviewer>I'm almost finished, but can we just</v>

1668
01:30:18.060 --> 01:30:19.415
change cause for a moment?

1669
01:30:19.415 --> 01:30:20.292
<v ->Of course.</v>

1670
01:30:20.292 --> 01:30:22.050
<v Interviewer>And then take a moment, then we'll go back.</v>

1671
01:30:22.050 --> 01:30:23.400
<v ->Yeah, how we doing?</v>

1672
01:30:23.400 --> 01:30:25.040
<v Interviewer>Okay, I wanted to ask you</v>

1673
01:30:25.040 --> 01:30:26.611
about Judge Gonzales.

1674
01:30:26.611 --> 01:30:30.200
You know that he had a reputation among people

1675
01:30:30.200 --> 01:30:32.120
who didn't know him at all that perhaps

1676
01:30:32.120 --> 01:30:34.800
he wasn't fit for the job.

1677
01:30:34.800 --> 01:30:36.530
Is that how you saw him?

1678
01:30:36.530 --> 01:30:38.282
<v ->It's not how I saw him.</v>

1679
01:30:38.282 --> 01:30:43.282
I thought that he was an incredibly good and wise counselor

1680
01:30:43.443 --> 01:30:47.060
to President Bush as White House counsel,

1681
01:30:47.060 --> 01:30:50.470
which is all I observed up close from the inside.

1682
01:30:50.470 --> 01:30:52.683
I think he's one of the administration officials

1683
01:30:52.683 --> 01:30:57.061
I would point to out of, you know, the top two or three

1684
01:30:57.061 --> 01:31:00.440
whose reputations and careers and lives suffered

1685
01:31:00.440 --> 01:31:05.440
most unfairly from their service in the administration.

1686
01:31:05.860 --> 01:31:09.510
I knew him to be an incredibly smart man

1687
01:31:09.510 --> 01:31:13.330
and incredibly decent man, a very fine lawyer

1688
01:31:13.330 --> 01:31:15.345
with a, with a good mind.

1689
01:31:15.345 --> 01:31:19.010
You know, there are grounds on which you could criticize

1690
01:31:19.010 --> 01:31:22.010
his performance in one or another respect,

1691
01:31:22.010 --> 01:31:26.652
but he's, he's nowhere near the incompetent that

1692
01:31:26.652 --> 01:31:31.652
Senator Schumer successfully portrayed him as in the fight

1693
01:31:32.590 --> 01:31:35.550
over the U.S. attorney firings in which ultimately led

1694
01:31:35.550 --> 01:31:39.170
to his stepping down as U.S. Attorney General.

1695
01:31:39.170 --> 01:31:42.033
He's a, he's a good man and a really good lawyer

1696
01:31:42.033 --> 01:31:44.470
and deserved better than what he got.

1697
01:31:44.470 --> 01:31:49.470
I saw him work tirelessly through 9/11 and its aftermath

1698
01:31:50.102 --> 01:31:55.102
in unfailing good humor, maintaining an even keel

1699
01:31:56.430 --> 01:31:59.272
and a calm demeanor and good leadership of the office,

1700
01:31:59.272 --> 01:32:03.295
a relatively young man in his 40s at the time

1701
01:32:03.295 --> 01:32:06.482
under the most pressure, difficult circumstances

1702
01:32:06.482 --> 01:32:11.210
one can imagine, and I think I can speak for the whole

1703
01:32:11.210 --> 01:32:14.480
White House Counsel's office in professing

1704
01:32:14.480 --> 01:32:18.740
great admiration for Judge Gonzales and regret

1705
01:32:18.740 --> 01:32:22.160
that his public reputation ended up being what it was

1706
01:32:22.160 --> 01:32:24.300
by virtue of that political conflict

1707
01:32:24.300 --> 01:32:26.433
with the Senate Judiciary Committee.

1708
01:32:27.540 --> 01:32:28.911
<v Interviewer>Thank you, that was good.</v>

1709
01:32:28.911 --> 01:32:32.860
Did you have, did you have anything, were you aware

1710
01:32:32.860 --> 01:32:35.620
when Jose Pedilla was put into the Naval brig?

1711
01:32:35.620 --> 01:32:37.280
Is that something that the White House counsel

1712
01:32:37.280 --> 01:32:39.223
was aware of or involved in?

1713
01:32:39.223 --> 01:32:41.863
<v ->Yes, I think so.</v>

1714
01:32:44.460 --> 01:32:46.330
Was it his case that ended up in front

1715
01:32:46.330 --> 01:32:49.690
of Doumar in Norfolk, Judge Doumar?

1716
01:32:49.690 --> 01:32:53.030
Yeah, so then we were for sure, because.

1717
01:32:53.030 --> 01:32:54.586
<v Interviewer>When you were describing that earlier,</v>

1718
01:32:54.586 --> 01:32:59.250
to use psychological approach to a holy man.

1719
01:32:59.250 --> 01:33:04.250
<v ->Yeah, yeah, so my memory on this is a little bit hazy</v>

1720
01:33:06.500 --> 01:33:11.060
but if it was his case that was in front of Judge Doumar

1721
01:33:11.060 --> 01:33:14.140
in Norfolk, then I'm, I'm quite sure that at least.

1722
01:33:14.140 --> 01:33:15.080
<v Interviewer>Actually it might've been well,</v>

1723
01:33:15.080 --> 01:33:16.670
he might've been in Norf.

1724
01:33:16.670 --> 01:33:20.010
He, actually he might've been the person

1725
01:33:20.010 --> 01:33:24.723
who was first in Guantanamo, al-Marri who went to Norfolk.

1726
01:33:24.723 --> 01:33:26.250
<v ->You may be right.</v>

1727
01:33:26.250 --> 01:33:27.995
It might've been al-Marri.

1728
01:33:27.995 --> 01:33:30.210
It might've been al-Marri.

1729
01:33:30.210 --> 01:33:35.210
Yeah, I do believe that I knew about and was involved

1730
01:33:35.290 --> 01:33:38.759
in some way in Padilla's situation, not so much

1731
01:33:38.759 --> 01:33:42.180
in the initial decision about what to do with him,

1732
01:33:42.180 --> 01:33:45.410
because if memory serves his case came along

1733
01:33:45.410 --> 01:33:46.980
a little bit later.

1734
01:33:46.980 --> 01:33:51.080
The running rules were more well-established at that time.

1735
01:33:51.080 --> 01:33:53.389
The government was functioning more normally,

1736
01:33:53.389 --> 01:33:58.130
and the bureaucracy, the Department of Defense was able

1737
01:33:58.130 --> 01:34:00.450
to make some initial calls working with

1738
01:34:00.450 --> 01:34:02.367
the Department of Justice and others about

1739
01:34:02.367 --> 01:34:07.367
what to do with him but litigation rapidly ensued

1740
01:34:07.490 --> 01:34:10.991
on his behalf, I think, because he was a U.S. citizen

1741
01:34:10.991 --> 01:34:15.070
and was therefore detained in the U.S.

1742
01:34:15.070 --> 01:34:16.890
I should have said earlier.

1743
01:34:16.890 --> 01:34:19.914
Yeah, I think I should have said earlier

1744
01:34:19.914 --> 01:34:22.247
that there was never any consideration

1745
01:34:22.247 --> 01:34:27.247
of housing U.S. citizens in Guantanamo nor was there

1746
01:34:28.510 --> 01:34:32.590
ever any consideration of trying U.S. citizens

1747
01:34:32.590 --> 01:34:34.390
in military commissions.

1748
01:34:34.390 --> 01:34:37.070
All of the policy makers and lawyers in the White House

1749
01:34:37.070 --> 01:34:41.160
and Justice Department believed that U.S. citizens

1750
01:34:41.160 --> 01:34:45.400
did and should have a more robust complement

1751
01:34:45.400 --> 01:34:50.400
of legal rights than foreign terrorists.

1752
01:34:50.770 --> 01:34:54.200
Nobody believed, for example, that a U.S. court

1753
01:34:54.200 --> 01:34:57.990
would not have jurisdiction to consider a petition for writ

1754
01:34:57.990 --> 01:35:02.410
of habeas corpus brought by a U.S. citizen at Guantanamo.

1755
01:35:02.410 --> 01:35:06.600
So in the case of the relatively few U.S. citizens

1756
01:35:06.600 --> 01:35:09.357
that were detained as as unlawful enemy combatants,

1757
01:35:09.357 --> 01:35:14.061
there was a pretty clear understanding all the way along

1758
01:35:14.061 --> 01:35:18.000
that they were going to be brought to the United States,

1759
01:35:18.000 --> 01:35:21.950
detained in the United States, afforded the rights

1760
01:35:21.950 --> 01:35:25.680
of U.S. citizens to gain access to the U.S. courts

1761
01:35:25.680 --> 01:35:30.549
and would be tried, you know, either in courts martial

1762
01:35:30.549 --> 01:35:35.290
or in civilian courts, but, but not in military commissions.

1763
01:35:35.290 --> 01:35:37.390
The critics ended up using some of that

1764
01:35:37.390 --> 01:35:40.190
against the administration saying, well,

1765
01:35:40.190 --> 01:35:41.850
if the military commissions are not good enough

1766
01:35:41.850 --> 01:35:44.231
for U.S. citizens, why is it fair to apply them

1767
01:35:44.231 --> 01:35:48.610
to Afghans or Iraqis, to which I think

1768
01:35:49.850 --> 01:35:51.030
the administration's answer would have been,

1769
01:35:51.030 --> 01:35:53.340
well, because these guys are U.S. citizens

1770
01:35:53.340 --> 01:35:56.750
and those guys are not, but that was not an answer

1771
01:35:56.750 --> 01:36:00.290
that satisfied a lot of critics, especially foreign critics.

1772
01:36:00.290 --> 01:36:02.900
So they ended up using it a little bit politically

1773
01:36:02.900 --> 01:36:05.500
and in the courts against the administration.

1774
01:36:05.500 --> 01:36:07.138
<v Interviewer>But you're saying that in your discussions</v>

1775
01:36:07.138 --> 01:36:10.580
on Guantanamo and the president, that it was very clear

1776
01:36:10.580 --> 01:36:12.628
that U.S. citizens would not.

1777
01:36:12.628 --> 01:36:13.620
<v ->Were different, they were legally different.</v>

1778
01:36:13.620 --> 01:36:16.760
They were different as a policy matter, even if they

1779
01:36:16.760 --> 01:36:20.382
had turned against the United States and were trying

1780
01:36:20.382 --> 01:36:24.410
to harm the U.S. and harm U.S. citizens,

1781
01:36:24.410 --> 01:36:28.499
their status as citizens gave them a full complement

1782
01:36:28.499 --> 01:36:31.773
of Constitutional protections that we did not believe

1783
01:36:31.773 --> 01:36:36.580
foreigners were entitled to or should be entitled to.

1784
01:36:36.580 --> 01:36:38.370
Now, that didn't mean that they were not

1785
01:36:38.370 --> 01:36:40.031
unlawful enemy combatants.

1786
01:36:40.031 --> 01:36:44.441
The Civil War had afforded plenty of examples and precedents

1787
01:36:44.441 --> 01:36:47.731
of people who were regarded as simply rebellious

1788
01:36:47.731 --> 01:36:51.330
or disloyal U.S. citizens being treated

1789
01:36:51.330 --> 01:36:53.350
as unlawful enemy combatants.

1790
01:36:53.350 --> 01:36:57.240
Back then in the colorful language of, of the 1860s,

1791
01:36:57.240 --> 01:36:58.890
they were variously called things

1792
01:36:58.890 --> 01:37:01.400
like jayhawkers or bandidi.

1793
01:37:01.400 --> 01:37:03.710
If you look at those old opinions, those are the kinds

1794
01:37:03.710 --> 01:37:07.970
of words that you'll see, but they were U.S. citizens

1795
01:37:07.970 --> 01:37:10.303
nonetheless in the eyes of President Lincoln,

1796
01:37:10.303 --> 01:37:14.940
and, and so we believed that a Pedilla or an al-Marri

1797
01:37:16.711 --> 01:37:20.100
could be treated as unlawful enemy combatants,

1798
01:37:20.100 --> 01:37:21.510
but with an important distinction.

1799
01:37:21.510 --> 01:37:24.950
Unlawful enemy combatants, entitled to all the protections

1800
01:37:24.950 --> 01:37:28.470
of the U.S. Constitution, unlike a foreign terrorist.

1801
01:37:28.470 --> 01:37:30.290
<v Interviewer>I will say that Pedilla wasn't allowed</v>

1802
01:37:30.290 --> 01:37:33.371
to see his attorney for several years or wasn't allowed

1803
01:37:33.371 --> 01:37:35.220
access to an attorney for several years.

1804
01:37:35.220 --> 01:37:37.587
So that wasn't afforded to him.

1805
01:37:37.587 --> 01:37:40.931
So there were some restrictions put on him.

1806
01:37:40.931 --> 01:37:42.720
<v ->Yeah, there were vigorous debates</v>

1807
01:37:42.720 --> 01:37:46.230
over the access to counsel issue.

1808
01:37:46.230 --> 01:37:51.230
If, if memory serves, there was no law and no decision

1809
01:37:52.530 --> 01:37:57.260
of the U.S. Supreme Court saying that anyone had a right

1810
01:37:57.260 --> 01:38:00.530
to the assistance of counsel in the habeas context.

1811
01:38:00.530 --> 01:38:05.530
It was, in that respect, very much unlike indigent Americans

1812
01:38:06.635 --> 01:38:10.364
confronted with the criminal system.

1813
01:38:10.364 --> 01:38:14.270
If we had charged Jose Padilla with a crime, as I think

1814
01:38:14.270 --> 01:38:17.275
we ultimately did, then he would have absolutely

1815
01:38:17.275 --> 01:38:20.240
had a right to counsel under the Sixth Amendment

1816
01:38:20.240 --> 01:38:23.410
and no one ever doubted that, but the question of whether

1817
01:38:23.410 --> 01:38:26.760
an unlawful enemy combatant who happened to be

1818
01:38:26.760 --> 01:38:30.740
a U.S. citizen was entitled to counsel to pursue

1819
01:38:30.740 --> 01:38:35.720
a habeas petition was unresolved as a legal matter,

1820
01:38:35.720 --> 01:38:37.900
and the administration took the position

1821
01:38:37.900 --> 01:38:40.865
for a while at least that they were not.

1822
01:38:40.865 --> 01:38:45.865
Why, because the view was that that was the position

1823
01:38:46.540 --> 01:38:49.840
that was going to allow us to interrogate someone like that

1824
01:38:49.840 --> 01:38:53.292
most effectively and disrupt attacks.

1825
01:38:53.292 --> 01:38:56.220
If, and when the courts told us that, that we were wrong

1826
01:38:56.220 --> 01:38:59.500
about that, obviously everybody from David Addington

1827
01:38:59.500 --> 01:39:02.551
and Judge Gonzales on down would comply then

1828
01:39:02.551 --> 01:39:06.770
with that ruling, but without any law telling us that

1829
01:39:06.770 --> 01:39:10.180
that was the wrong position and a pretty uniform belief

1830
01:39:10.180 --> 01:39:13.650
that from a policy perspective, i.e. from the perspective

1831
01:39:13.650 --> 01:39:17.010
of trying to protect Americans from future attacks

1832
01:39:17.010 --> 01:39:18.650
that might be in the works that this was

1833
01:39:18.650 --> 01:39:22.030
the most protective approach, the administration decided

1834
01:39:22.030 --> 01:39:25.945
to try to not permit someone like that to have

1835
01:39:25.945 --> 01:39:29.070
the assistance of a lawyer so that they could be

1836
01:39:29.070 --> 01:39:31.582
interrogated without feeling like,

1837
01:39:31.582 --> 01:39:34.950
I have a champion in my corner, I am empowered.

1838
01:39:34.950 --> 01:39:36.550
I can sue the President.

1839
01:39:36.550 --> 01:39:38.162
I might get released.

1840
01:39:38.162 --> 01:39:40.210
You know, those were the kinds of things

1841
01:39:40.210 --> 01:39:42.730
that would undermine effective interrogation,

1842
01:39:42.730 --> 01:39:45.840
but on that issue, unlike some of the others

1843
01:39:45.840 --> 01:39:49.130
which we've discussed, there was vigorous disagreement

1844
01:39:49.130 --> 01:39:52.760
and debate among the Bush administration lawyers,

1845
01:39:52.760 --> 01:39:55.578
both about the normative right answer

1846
01:39:55.578 --> 01:40:00.240
from a legal perspective and about what the courts

1847
01:40:00.240 --> 01:40:04.060
would ultimately do with that question,

1848
01:40:04.060 --> 01:40:06.820
and that was one where some of the former

1849
01:40:06.820 --> 01:40:10.270
Supreme Court clerks who had clerked for swing justices

1850
01:40:10.270 --> 01:40:14.523
said this probably is not going to fly ultimately.

1851
01:40:16.158 --> 01:40:17.890
<v Interviewer>And the fact that Padilla was kept</v>

1852
01:40:17.890 --> 01:40:20.360
in isolation is consistent with what you were saying

1853
01:40:20.360 --> 01:40:23.738
is the idea is to keep him trusting

1854
01:40:23.738 --> 01:40:26.070
only his interrogators and no one else,

1855
01:40:26.070 --> 01:40:28.460
and I assume you didn't and no one in administration

1856
01:40:28.460 --> 01:40:30.330
really knew how he was being treated.

1857
01:40:30.330 --> 01:40:31.870
<v ->I certainly didn't.</v>

1858
01:40:31.870 --> 01:40:36.870
I never, the, the first time I ever went to Guantanamo

1859
01:40:37.100 --> 01:40:41.610
or, or saw a detainee in the flesh myself was several years

1860
01:40:41.610 --> 01:40:45.514
after I left the government, after I left the White House,

1861
01:40:45.514 --> 01:40:48.544
when the DOD took me and a few other people

1862
01:40:48.544 --> 01:40:52.810
who were active in the public debate over these issues

1863
01:40:52.810 --> 01:40:55.503
down to Guantanamo to show us the place.

1864
01:40:55.503 --> 01:41:00.503
So I went as kind of a VIP or influencer or whatever

1865
01:41:00.953 --> 01:41:04.766
who the government felt it was in their interests

1866
01:41:04.766 --> 01:41:09.420
to give more direct observation of what was happening to,

1867
01:41:09.420 --> 01:41:12.940
but by then the whole thing was fully up and running.

1868
01:41:12.940 --> 01:41:15.110
Camp X-ray had long been shut down.

1869
01:41:15.110 --> 01:41:17.856
It was Camp Delta and other things down there.

1870
01:41:17.856 --> 01:41:22.640
So, no, I had no idea exactly what was, what,

1871
01:41:22.640 --> 01:41:26.700
what the conditions of confinement were for Jose Padilla.

1872
01:41:26.700 --> 01:41:31.360
I vaguely recall being assured that he was generally

1873
01:41:31.360 --> 01:41:36.360
receiving treatment condition consistent with the way

1874
01:41:36.966 --> 01:41:41.966
U.S. service members would be treated with respect

1875
01:41:43.070 --> 01:41:45.740
being paid to his religious needs as well,

1876
01:41:45.740 --> 01:41:48.900
prayer mat and arrow on the floor pointing to Mecca

1877
01:41:48.900 --> 01:41:52.204
and the like, but I don't remember knowing much at all

1878
01:41:52.204 --> 01:41:56.140
about exactly what was happening with him

1879
01:41:56.140 --> 01:41:59.050
in the, in the South Carolina naval brig.

1880
01:41:59.050 --> 01:42:01.503
<v Interviewer>And did you have any awareness</v>

1881
01:42:01.503 --> 01:42:04.546
of John Walker Lindh when he was captured?

1882
01:42:04.546 --> 01:42:05.437
Was that something that?

1883
01:42:05.437 --> 01:42:06.270
<v ->Hmm.</v>

1884
01:42:10.706 --> 01:42:14.123
I don't remember knowing much about that.

1885
01:42:16.260 --> 01:42:17.320
I don't.

1886
01:42:17.320 --> 01:42:19.474
Do you remember, do you know when he was captured?

1887
01:42:19.474 --> 01:42:20.347
<v Interviewer>I think he was captured,</v>

1888
01:42:20.347 --> 01:42:21.224
December 3rd I think is when it.

1889
01:42:21.224 --> 01:42:22.057
<v ->Of 2001?</v>

1890
01:42:22.057 --> 01:42:23.516
<v Interviewer>Yeah, when it hit the news,</v>

1891
01:42:23.516 --> 01:42:25.074
and he was captured a few days before then

1892
01:42:25.074 --> 01:42:28.120
and then held on a ship.

1893
01:42:28.120 --> 01:42:29.540
<v ->For a while.</v>

1894
01:42:29.540 --> 01:42:34.540
Yeah, I must have, I must have been aware and probably aware

1895
01:42:35.119 --> 01:42:38.146
beyond whatever was in the papers but I don't remember

1896
01:42:38.146 --> 01:42:43.146
having any substantive involvement in his case,

1897
01:42:43.650 --> 01:42:45.934
either the litigation or the.

1898
01:42:45.934 --> 01:42:46.767
<v Interviewer>So ultimately, it was negotiated</v>

1899
01:42:46.767 --> 01:42:49.390
with the White House and his prison sentence,

1900
01:42:49.390 --> 01:42:51.060
so you could have been involved in.

1901
01:42:51.060 --> 01:42:53.620
<v ->Yeah. I don't remember knowing anything about that</v>

1902
01:42:53.620 --> 01:42:54.920
or being involved in that.

1903
01:42:56.140 --> 01:42:59.190
<v Interviewer>Just looking back, were you surprised</v>

1904
01:42:59.190 --> 01:43:01.403
when Obama said he was going to close Guantanamo

1905
01:43:01.403 --> 01:43:03.223
or did you expect him to?

1906
01:43:04.871 --> 01:43:07.823
<v ->I wasn't surprised when he said it.</v>

1907
01:43:08.750 --> 01:43:12.350
It had been a cause celebre on the left for a long time.

1908
01:43:12.350 --> 01:43:16.140
Obama is a man of the left, and so it was certainly

1909
01:43:16.140 --> 01:43:19.960
no surprise that, that, that he would be playing

1910
01:43:19.960 --> 01:43:24.130
to that constituency by stating that objective.

1911
01:43:24.130 --> 01:43:29.130
I was very impressed and at least mildly surprised

1912
01:43:30.630 --> 01:43:35.630
when his review of the situation early in his first year

1913
01:43:36.480 --> 01:43:40.580
concluded that in fact, he really couldn't

1914
01:43:40.580 --> 01:43:45.580
successfully close Guantanamo without bringing

1915
01:43:45.730 --> 01:43:48.706
some of these terrorists onto U.S. soil.

1916
01:43:48.706 --> 01:43:52.450
To me, that was a sign that he was taking the weighty

1917
01:43:52.450 --> 01:43:56.090
national security concerns here seriously

1918
01:43:56.090 --> 01:43:59.820
because I knew from my work that there were people

1919
01:43:59.820 --> 01:44:03.010
among those detainees, maybe not everyone,

1920
01:44:03.010 --> 01:44:06.380
but plenty of people who were hardcore terrorists,

1921
01:44:06.380 --> 01:44:10.073
very dangerous, that you could not release,

1922
01:44:10.073 --> 01:44:14.670
and that you could not try, certainly in

1923
01:44:14.670 --> 01:44:19.000
a U.S. civilian court for a variety of technical

1924
01:44:19.000 --> 01:44:21.732
legal reasons having to do with the type of evidence

1925
01:44:21.732 --> 01:44:25.073
that's available in a normal court versus

1926
01:44:25.073 --> 01:44:30.073
in a military commission, and so when his review agreed

1927
01:44:33.390 --> 01:44:36.720
with that sentiment and said, well, what we're going

1928
01:44:36.720 --> 01:44:39.590
to have to do if we close Guantanomo is bring a bunch

1929
01:44:39.590 --> 01:44:42.710
of these guys into the U.S. and hold them here

1930
01:44:42.710 --> 01:44:45.462
indefinitely without trial, I was encouraged

1931
01:44:45.462 --> 01:44:48.243
because I took it as a sign that he and his team

1932
01:44:48.243 --> 01:44:51.374
were not just playing politics with these really

1933
01:44:51.374 --> 01:44:53.876
life and death issues but were in fact serious

1934
01:44:53.876 --> 01:44:57.166
about trying to protect the country

1935
01:44:57.166 --> 01:45:01.800
even where it risked some political damage to him

1936
01:45:01.800 --> 01:45:06.390
and forced him to, in effect, agree with something

1937
01:45:06.390 --> 01:45:09.100
President Bush had been doing which he was quite loath

1938
01:45:09.100 --> 01:45:12.180
to do early on, and even in the cases where he did it,

1939
01:45:12.180 --> 01:45:15.856
he usually denied he was doing it and explained something

1940
01:45:15.856 --> 01:45:19.490
in a cosmetically different way to try to make it

1941
01:45:19.490 --> 01:45:22.700
appear as though he was not validating a Bush era policy,

1942
01:45:22.700 --> 01:45:27.080
but in that respect he was, so I was mildly surprised

1943
01:45:27.080 --> 01:45:28.490
and encouraged by that.

1944
01:45:28.490 --> 01:45:31.070
<v Interviewer>And John Bellinger told us that maybe Bush</v>

1945
01:45:31.070 --> 01:45:32.938
was involved in a torture business,

1946
01:45:32.938 --> 01:45:36.251
but Obama killed them with drones.

1947
01:45:36.251 --> 01:45:37.820
(chuckling)

1948
01:45:37.820 --> 01:45:42.380
<v ->Well, you know, schadenfreude is sort of</v>

1949
01:45:42.380 --> 01:45:47.380
an unattractive emotion but there was a little

1950
01:45:47.660 --> 01:45:51.963
among former Bush officials when we saw our former critics

1951
01:45:51.963 --> 01:45:55.360
take positions in the Justice Department,

1952
01:45:55.360 --> 01:45:58.910
grapple with these very hard issues and either

1953
01:45:58.910 --> 01:46:02.710
come to similar conclusions or do things themselves

1954
01:46:02.710 --> 01:46:05.920
that we knew they would have called us war criminals

1955
01:46:05.920 --> 01:46:08.620
for doing when we were in office, you know,

1956
01:46:08.620 --> 01:46:13.220
like killing American citizens in Yemen with, with a drone.

1957
01:46:13.220 --> 01:46:17.810
You know, Anwar al-Awlaki and his son

1958
01:46:17.810 --> 01:46:20.870
are the classic example, and, and there were, you know,

1959
01:46:20.870 --> 01:46:25.600
particular individuals who were involved in that decision

1960
01:46:25.600 --> 01:46:28.292
and validating the legal basis for it,

1961
01:46:28.292 --> 01:46:32.670
who had been very aggressive and very critical of a lot

1962
01:46:32.670 --> 01:46:37.670
of good, conscientious Bush lawyers for making decisions

1963
01:46:38.989 --> 01:46:42.050
no worse and arguably not nearly that bad

1964
01:46:42.050 --> 01:46:46.230
during the time of the Bush administration.

1965
01:46:46.230 --> 01:46:48.750
Now, these are also good, decent people

1966
01:46:48.750 --> 01:46:52.050
and very fine lawyers, people, some of whom I know

1967
01:46:52.050 --> 01:46:55.229
personally and like personally, but there was

1968
01:46:55.229 --> 01:46:58.630
a little bit of schadenfreude seeing them get

1969
01:46:58.630 --> 01:47:03.070
the black armband treatment when they finally had

1970
01:47:03.070 --> 01:47:04.900
to grapple with these issues and make

1971
01:47:04.900 --> 01:47:07.070
some of these hard decisions.

1972
01:47:07.070 --> 01:47:10.010
Mind you, we didn't think their decisions were wrong

1973
01:47:10.010 --> 01:47:14.719
and we were not critical of them or of their decisions,

1974
01:47:14.719 --> 01:47:19.719
just sort of gratified on some level that they could now see

1975
01:47:21.809 --> 01:47:26.809
what it was like to be a decision-maker and actor

1976
01:47:26.921 --> 01:47:31.020
with weighty national security concerns in the balance

1977
01:47:31.020 --> 01:47:34.160
rather than merely a critic and a political opponent.

1978
01:47:34.160 --> 01:47:36.920
<v Interviewer>So when you were inside the White House</v>

1979
01:47:36.920 --> 01:47:40.050
as opposed to being an outsider, did you also see things

1980
01:47:40.050 --> 01:47:43.490
very differently in how you saw it from, because apparently

1981
01:47:43.490 --> 01:47:46.840
when Obama, you know, realized that what he was thinking

1982
01:47:46.840 --> 01:47:48.709
outside was very different from what he.

1983
01:47:48.709 --> 01:47:49.582
<v ->Oh, yeah.</v>

1984
01:47:49.582 --> 01:47:54.140
You can't, you can't not have a different perspective

1985
01:47:54.140 --> 01:47:56.633
on these issues when you've spent some time

1986
01:47:56.633 --> 01:48:00.060
inside government grappling with them.

1987
01:48:00.060 --> 01:48:03.950
You just have access to a different quality

1988
01:48:03.950 --> 01:48:06.611
and quantity of information about them.

1989
01:48:06.611 --> 01:48:10.770
You feel the real burden of making those decisions,

1990
01:48:10.770 --> 01:48:14.208
having to, having to make them and execute them.

1991
01:48:14.208 --> 01:48:18.710
There's a sense of responsibility that you don't have

1992
01:48:18.710 --> 01:48:21.730
if you're just a critic on the outside

1993
01:48:21.730 --> 01:48:23.700
grinding a political ax.

1994
01:48:23.700 --> 01:48:27.220
I had been a vociferous critic of President Clinton

1995
01:48:27.220 --> 01:48:30.780
during his term in office, largely based on

1996
01:48:30.780 --> 01:48:34.640
the personal scandals in which he had been involved.

1997
01:48:34.640 --> 01:48:38.058
I, I really had great distaste for the man and,

1998
01:48:38.058 --> 01:48:42.480
and the way he behaved in office but after

1999
01:48:42.480 --> 01:48:46.820
my White House service, I regretted some of that

2000
01:48:46.820 --> 01:48:51.820
and feel like I would not do or say some of the things

2001
01:48:52.370 --> 01:48:55.227
I did back in the 90s if those circumstances

2002
01:48:55.227 --> 01:48:57.260
were to be repeated because you just,

2003
01:48:57.260 --> 01:48:59.803
you understand what's at stake for the country

2004
01:48:59.803 --> 01:49:04.128
and having a President beleaguered and distracted

2005
01:49:04.128 --> 01:49:08.690
and, you know, it's not that I came around to the view

2006
01:49:08.690 --> 01:49:11.088
that President Clinton was a paragon of virtue,

2007
01:49:11.088 --> 01:49:15.480
but I did come to understand how weighty

2008
01:49:15.480 --> 01:49:18.760
the responsibilities of that office are and how dangerous

2009
01:49:18.760 --> 01:49:23.760
it is for all of us to attack its incumbent

2010
01:49:24.600 --> 01:49:28.880
if the incumbent is, you know, trying to do the best job

2011
01:49:28.880 --> 01:49:32.810
he or she can and is trying to make difficult decisions.

2012
01:49:32.810 --> 01:49:33.960
<v Interviewer>So Lawrence Wilkinson,</v>

2013
01:49:33.960 --> 01:49:35.090
who was Colin Powell's

2014
01:49:35.090 --> 01:49:39.380
chief of staff said during those early years, said to us

2015
01:49:39.380 --> 01:49:43.810
that he thinks President Obama particularly was captured,

2016
01:49:43.810 --> 01:49:45.850
Obama was captured, and he meant by that

2017
01:49:45.850 --> 01:49:49.181
that strong interests control them in that he was not aware

2018
01:49:49.181 --> 01:49:51.282
of those interests 'til he came into office.

2019
01:49:51.282 --> 01:49:55.230
Do you see that as true for most?

2020
01:49:55.230 --> 01:49:57.733
<v ->I wouldn't use the language of capture.</v>

2021
01:49:59.399 --> 01:50:02.056
You know, when one talks about agency capture

2022
01:50:02.056 --> 01:50:07.056
or executive capture, it connotes co-optation

2023
01:50:07.520 --> 01:50:11.930
and the undermining of a theoretically pure set of views

2024
01:50:11.930 --> 01:50:14.797
by vested interests that work their will on,

2025
01:50:14.797 --> 01:50:18.010
on the person in question.

2026
01:50:18.010 --> 01:50:22.850
I see it much more as education than capture.

2027
01:50:22.850 --> 01:50:25.660
I think when President Obama came into office,

2028
01:50:25.660 --> 01:50:28.720
had his first briefings from the intelligence community

2029
01:50:28.720 --> 01:50:33.550
in the Situation Room, had to make decisions, many of which

2030
01:50:33.550 --> 01:50:35.960
never even see the light of day about what to do

2031
01:50:35.960 --> 01:50:39.590
in the face of emerging national security threats,

2032
01:50:39.590 --> 01:50:44.376
his perspective simply changed for good and valid reasons,

2033
01:50:44.376 --> 01:50:46.110
and in a way that I would hope

2034
01:50:46.110 --> 01:50:48.730
anybody's perspective would change.

2035
01:50:48.730 --> 01:50:51.373
It would take a total ideologue or dogmatist

2036
01:50:51.373 --> 01:50:55.790
to move into the Oval Office and have the experience

2037
01:50:55.790 --> 01:50:58.600
that any president's going to have in the first six months

2038
01:50:58.600 --> 01:51:01.453
in office and remain of the view that

2039
01:51:01.453 --> 01:51:04.870
the National Security Agency is a bigger threat

2040
01:51:04.870 --> 01:51:07.840
to American liberty than al Qaeda or ISIS.

2041
01:51:07.840 --> 01:51:10.870
It's, it's pure poppycock once you've had a chance

2042
01:51:10.870 --> 01:51:12.293
to really see it up close.

2043
01:51:14.010 --> 01:51:18.183
<v Interviewer>And did you, so did you, when we were told</v>

2044
01:51:18.183 --> 01:51:22.110
that there were many threats, this kind of brought it up,

2045
01:51:22.110 --> 01:51:25.190
many threats to the U.S. that the Bush administration

2046
01:51:25.190 --> 01:51:28.674
was able to curtail through insider knowledge,

2047
01:51:28.674 --> 01:51:31.360
that's the kind of information that

2048
01:51:31.360 --> 01:51:33.501
you were aware of as well?

2049
01:51:33.501 --> 01:51:37.540
<v ->I was not a recipient of the daily threat matrix</v>

2050
01:51:37.540 --> 01:51:41.680
or seeing the PDB or the, the intelligence briefings

2051
01:51:41.680 --> 01:51:43.270
the President was getting.

2052
01:51:43.270 --> 01:51:45.040
The people in the office of Homeland Security

2053
01:51:45.040 --> 01:51:47.400
and Department of Homeland security, yes.

2054
01:51:47.400 --> 01:51:50.210
Me in and my role, no, thank goodness.

2055
01:51:50.210 --> 01:51:52.044
I think it allowed me to sleep a lot better

2056
01:51:52.044 --> 01:51:54.150
through all of those years.

2057
01:51:54.150 --> 01:51:57.430
So I can't give you any worthwhile perspective on

2058
01:51:57.430 --> 01:52:00.589
what the threat profile looked like at that time

2059
01:52:00.589 --> 01:52:05.430
or whether we successfully disrupted plots.

2060
01:52:05.430 --> 01:52:09.010
I know about that issue only what I read in the papers.

2061
01:52:09.010 --> 01:52:11.120
The only time I think I was seeing that kind

2062
01:52:11.120 --> 01:52:14.080
of real-time intelligence was on the night

2063
01:52:14.080 --> 01:52:17.486
of the State of the Union Address in, in 2002,

2064
01:52:17.486 --> 01:52:22.160
where I was the lawyer in the undisclosed location

2065
01:52:22.160 --> 01:52:25.560
with the successor President who would have been responsible

2066
01:52:25.560 --> 01:52:28.320
for ensuring the orderly transfer of power

2067
01:52:28.320 --> 01:52:30.530
to the new President in the event the Capitol

2068
01:52:30.530 --> 01:52:33.880
had been blown up, and in order to do that, we had

2069
01:52:33.880 --> 01:52:37.969
a pretty extensive briefing that day from the CIA

2070
01:52:37.969 --> 01:52:41.629
in this location, and I'm happy to report that on that day

2071
01:52:41.629 --> 01:52:45.620
there were no very serious threats which is probably why

2072
01:52:45.620 --> 01:52:48.643
I was the lawyer in that location.

2073
01:52:50.170 --> 01:52:51.969
<v Interviewer>So how do you make sure?</v>

2074
01:52:51.969 --> 01:52:52.802
<v Director>I just wanna make sure you're okay on time.</v>

2075
01:52:52.802 --> 01:52:53.770
It's quarter of now.

2076
01:52:53.770 --> 01:52:57.416
<v ->Yeah, I, I need to bounce, another question or two, yeah.</v>

2077
01:52:57.416 --> 01:52:58.936
<v Interviewer>Why don't we, two more questions.</v>

2078
01:52:58.936 --> 01:53:00.303
One is, so how have you evolved over these years?

2079
01:53:01.670 --> 01:53:03.700
Have you changed through working

2080
01:53:03.700 --> 01:53:05.571
for the Bush administration?

2081
01:53:05.571 --> 01:53:07.773
<v ->Sure, I.</v>

2082
01:53:07.773 --> 01:53:09.096
<v Interviewer>Yeah, and then one more question after that.</v>

2083
01:53:09.096 --> 01:53:13.394
<v ->I th, I'm, I'm unquestionably older today than I was then</v>

2084
01:53:13.394 --> 01:53:18.394
and I think somewhat wiser, somewhat wiser about litigation

2085
01:53:22.180 --> 01:53:25.040
and Constitutional litigation and a certain category

2086
01:53:25.040 --> 01:53:28.351
of issues that have maximum political saliency,

2087
01:53:28.351 --> 01:53:32.840
more realistic probably about how the courts work.

2088
01:53:32.840 --> 01:53:37.560
I think I have a much richer understanding of the way

2089
01:53:37.560 --> 01:53:42.560
civil society works in the West and the way

2090
01:53:42.991 --> 01:53:45.700
the global community, legal community,

2091
01:53:45.700 --> 01:53:47.960
human rights community can influence

2092
01:53:47.960 --> 01:53:50.834
domestic debates in the United States.

2093
01:53:50.834 --> 01:53:54.500
In terms of my own personal views, I, I remain

2094
01:53:54.500 --> 01:53:59.500
a conservative Republican mostly from an economic

2095
01:53:59.874 --> 01:54:04.232
and foreign policy and national security standpoint.

2096
01:54:04.232 --> 01:54:08.136
My views, my substantive views about what constitutes

2097
01:54:08.136 --> 01:54:11.300
good policy have not changed.

2098
01:54:11.300 --> 01:54:14.160
With the benefit of hindsight, I have a very different view

2099
01:54:14.160 --> 01:54:19.160
on the war in Iraq than I had at the time that was launched.

2100
01:54:19.210 --> 01:54:22.840
I recognized it as a big gamble and a difficult decision

2101
01:54:22.840 --> 01:54:27.840
then and so, you know, I was not confident

2102
01:54:28.000 --> 01:54:30.370
it was the right thing to do but I was a supporter.

2103
01:54:30.370 --> 01:54:32.690
With the benefit of hindsight, I think you'd have to say

2104
01:54:32.690 --> 01:54:34.870
that if we could take that back, we would,

2105
01:54:34.870 --> 01:54:37.540
and that the world would probably overall

2106
01:54:37.540 --> 01:54:41.850
be a lot safer today if Saddam Hussein were still

2107
01:54:41.850 --> 01:54:46.733
in power in Iraq and that old status quo, however ugly,

2108
01:54:46.733 --> 01:54:51.733
were still being, you know, maintained in three yards

2109
01:54:52.500 --> 01:54:57.500
and a pile of dust through the exercise of, of U.S. power.

2110
01:54:57.816 --> 01:55:02.816
I think I gained an appreciation over time

2111
01:55:03.352 --> 01:55:06.694
for the importance of listening to one's critics

2112
01:55:06.694 --> 01:55:09.772
and taking seriously what they say.

2113
01:55:09.772 --> 01:55:13.176
You know, Neal Katyal was my big antagonist

2114
01:55:13.176 --> 01:55:15.180
on military commissions.

2115
01:55:15.180 --> 01:55:17.592
He was the one who ultimately argued and won

2116
01:55:17.592 --> 01:55:20.120
the Hamdan decision on military commissions

2117
01:55:20.120 --> 01:55:22.010
in the U.S. Supreme Court.

2118
01:55:22.010 --> 01:55:24.792
In the course of debating one another over the years,

2119
01:55:24.792 --> 01:55:27.530
he and I became close friends.

2120
01:55:27.530 --> 01:55:28.930
We had been friendly before that.

2121
01:55:28.930 --> 01:55:32.320
We knew one another before that, but I have enormous respect

2122
01:55:32.320 --> 01:55:35.689
and affection for Neal, and I think we would have benefited

2123
01:55:35.689 --> 01:55:39.613
from hearing a voice like his inside the administration

2124
01:55:39.613 --> 01:55:43.110
while we were deliberating on those policies.

2125
01:55:43.110 --> 01:55:47.192
Sometimes, I think a lot of times, maybe most of the time,

2126
01:55:47.192 --> 01:55:50.440
people in politics and government have a bit

2127
01:55:50.440 --> 01:55:52.800
of tunnel vision, particularly when they're surrounded

2128
01:55:52.800 --> 01:55:54.970
by those who are like-minded and they don't have

2129
01:55:54.970 --> 01:55:58.376
enough trust in people with differing views

2130
01:55:58.376 --> 01:56:01.543
to kind of really invite them in and really listen to them,

2131
01:56:01.543 --> 01:56:05.410
and, and that's a big lesson that I drew from those years

2132
01:56:05.410 --> 01:56:10.270
and I think I'm very, very open to opposing views

2133
01:56:10.270 --> 01:56:13.896
and opposing voices in weighty debates now

2134
01:56:13.896 --> 01:56:17.800
in a way that I probably wouldn't have been certainly not

2135
01:56:17.800 --> 01:56:19.880
to the same extent back then.

2136
01:56:19.880 --> 01:56:21.780
So that's a bit of hard earned wisdom.

2137
01:56:22.740 --> 01:56:24.470
<v Interviewer>And is there something I didn't ask you,</v>

2138
01:56:24.470 --> 01:56:27.280
Brad, that maybe you thought before you came here,

2139
01:56:27.280 --> 01:56:28.710
you'd like to talk about or?

2140
01:56:28.710 --> 01:56:29.906
<v ->It's been pretty comprehensive.</v>

2141
01:56:29.906 --> 01:56:32.113
I can't say you've missed much.

2142
01:56:33.220 --> 01:56:34.490
<v Interviewer>So then just last thing then.</v>

2143
01:56:34.490 --> 01:56:36.520
I'll just say, so Obama came in saying he was gonna

2144
01:56:36.520 --> 01:56:38.030
invite Republicans to work with him.

2145
01:56:38.030 --> 01:56:40.032
That would be consistent with what you just said

2146
01:56:40.032 --> 01:56:42.740
and that was, that would be a good thing.

2147
01:56:42.740 --> 01:56:44.340
That's the way Presidents should act.

2148
01:56:44.340 --> 01:56:45.933
<v ->I think that would be a good thing.</v>

2149
01:56:45.933 --> 01:56:50.130
In my view, it didn't happen, it didn't happen at all,

2150
01:56:50.130 --> 01:56:55.130
and in fact, he ended up being more of a divider

2151
01:56:55.656 --> 01:57:00.656
than most presidents, invited in Republicans and critics

2152
01:57:00.820 --> 01:57:02.350
to a far lesser extent.

2153
01:57:02.350 --> 01:57:06.194
The passage of Obamacare without a single Republican vote

2154
01:57:06.194 --> 01:57:08.434
is a classic example.

2155
01:57:08.434 --> 01:57:13.434
That requires a meta-political wisdom from a new president

2156
01:57:15.920 --> 01:57:19.220
that probably very few have.

2157
01:57:19.220 --> 01:57:21.790
It requires real wisdom and real strength

2158
01:57:21.790 --> 01:57:25.530
because every voice in your ear when you're a new president

2159
01:57:25.530 --> 01:57:28.750
and you've taken over from a president of the opposing party

2160
01:57:28.750 --> 01:57:32.100
tells you everything that guy did was bad.

2161
01:57:32.100 --> 01:57:36.760
Every idea you have is good, and the people you need

2162
01:57:36.760 --> 01:57:39.890
to please are the people who put you in that chair.

2163
01:57:39.890 --> 01:57:44.530
So there are powerful, powerful forces that encourage you

2164
01:57:44.530 --> 01:57:47.510
to play to your base, to listen to your supporters,

2165
01:57:47.510 --> 01:57:50.000
not to your critics, to do things that will get them

2166
01:57:50.000 --> 01:57:52.860
to cheer and make them feel that the money

2167
01:57:52.860 --> 01:57:55.330
they spent electing you and the time and the energy

2168
01:57:55.330 --> 01:57:58.317
they spent electing you was well-spent,

2169
01:57:58.317 --> 01:58:02.810
and to rise above that and to go against the advice

2170
01:58:02.810 --> 01:58:04.790
you're getting from your political advisors,

2171
01:58:04.790 --> 01:58:09.150
to conduct yourself in that way and really reach

2172
01:58:09.150 --> 01:58:12.850
across the aisle, reach out to critics not just

2173
01:58:12.850 --> 01:58:14.994
in a pro forma way, but to really listen to them,

2174
01:58:14.994 --> 01:58:19.810
to try to find the middle for the country

2175
01:58:19.810 --> 01:58:22.160
and to try to do something that'll enjoy

2176
01:58:22.160 --> 01:58:26.570
some broader public support, the real genius politicians

2177
01:58:26.570 --> 01:58:29.931
can do that, but I'm not sure especially for a new president

2178
01:58:29.931 --> 01:58:34.931
than anyone less than a genius politician is capable of it.

2179
01:58:35.140 --> 01:58:37.290
I mean, there have been the Lincolns and there have been

2180
01:58:37.290 --> 01:58:40.394
the FDRs and, but they don't come along that,

2181
01:58:40.394 --> 01:58:44.170
and I was very disappointed in the way Obama

2182
01:58:44.170 --> 01:58:47.010
conducted himself in his first term in this regard,

2183
01:58:47.010 --> 01:58:50.110
and I think by the definition I just laid out,

2184
01:58:50.110 --> 01:58:52.243
you couldn't call him a genius politician.

2185
01:58:53.550 --> 01:58:54.383
<v Interviewer>Would you like to be an advisor</v>

2186
01:58:54.383 --> 01:58:55.874
to the next president?

2187
01:58:55.874 --> 01:58:58.720
<v ->(laughing) You know, when I left Washington</v>

2188
01:58:58.720 --> 01:59:03.000
and my law practice to come up here to GE and take this job,

2189
01:59:03.000 --> 01:59:08.000
to some extent it was a conscious decision

2190
01:59:08.137 --> 01:59:13.110
to mostly say goodbye to all that and to devote my time

2191
01:59:13.110 --> 01:59:16.477
and energy to one of the things I've always believed

2192
01:59:16.477 --> 01:59:21.180
most firmly in, which is private enterprise and capitalism

2193
01:59:21.180 --> 01:59:23.770
in a, in a great global company.

2194
01:59:23.770 --> 01:59:27.416
I can't say I would never go back into government

2195
01:59:27.416 --> 01:59:32.416
if invited back, but I don't think I would be trying

2196
01:59:32.650 --> 01:59:35.610
to get a position in government.

2197
01:59:35.610 --> 01:59:39.010
I saw too many friends and colleagues whom I knew

2198
01:59:39.010 --> 01:59:44.010
to be very good, honorable people hurt too badly

2199
01:59:44.150 --> 01:59:47.190
by their service, realizing that quite apart

2200
01:59:47.190 --> 01:59:49.980
from the substantial income you leave behind

2201
01:59:49.980 --> 01:59:52.830
as a private lawyer when you go into government,

2202
01:59:52.830 --> 01:59:55.810
you put your entire reputation on the table

2203
01:59:55.810 --> 01:59:58.330
and to some extent you can lose it,

2204
01:59:58.330 --> 02:00:00.300
whether or not you do anything wrong.

2205
02:00:00.300 --> 02:00:02.090
You can become a political football.

2206
02:00:02.090 --> 02:00:04.380
I spent a lot of time in the years after I left

2207
02:00:04.380 --> 02:00:07.990
the White House, representing former friends and colleagues

2208
02:00:07.990 --> 02:00:10.820
in trouble through grand and, grand jury investigations,

2209
02:00:10.820 --> 02:00:12.834
Congressional investigations, and the like,

2210
02:00:12.834 --> 02:00:15.820
and most of them, maybe all of them

2211
02:00:15.820 --> 02:00:18.029
really didn't deserve it.

2212
02:00:18.029 --> 02:00:20.860
So that tarnished the experience

2213
02:00:20.860 --> 02:00:23.874
of government service a bit for me.

2214
02:00:23.874 --> 02:00:26.780
That having been said, I would say the two years I spent

2215
02:00:26.780 --> 02:00:30.180
in the White House were the headiest, most fascinating,

2216
02:00:30.180 --> 02:00:33.740
and in many ways, most satisfying years of my career,

2217
02:00:33.740 --> 02:00:37.030
and I feel enormously privileged to have had them.

2218
02:00:37.030 --> 02:00:39.736
Very few Americans get that chance, and I feel

2219
02:00:39.736 --> 02:00:42.870
enormously grateful to President Bush and Judge Gonzales

2220
02:00:42.870 --> 02:00:45.510
for having given me the chance to serve.

2221
02:00:45.510 --> 02:00:47.060
<v Interviewer>Yeah, and those two years especially.</v>

2222
02:00:47.060 --> 02:00:48.990
<v ->Yeah, well, no one knew those two years</v>

2223
02:00:48.990 --> 02:00:51.150
would be those two years but they turned out

2224
02:00:51.150 --> 02:00:53.380
to be quite consequential.

2225
02:00:53.380 --> 02:00:56.070
<v Interviewer>Well, we need 20 seconds of room tone</v>

2226
02:00:56.070 --> 02:00:59.398
and then we can turn it down.
<v ->Okay, sure, great.</v>

2227
02:00:59.398 --> 02:01:00.848
<v Director>Begin room tone.</v>