Corn, Geoffrey - Interview master file / Witness to Guantanamo / Duke Digital Repository

Interviewer

Good morning,

0:05

-

Morning.

0:07

Interviewer

We are very grateful to you for

0:08

participating in the Witness to Guantanamo Project.

0:09

We invite you to speak of your experiences

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at Guantanamo Bay, Cuba.

0:16

And we are hoping to provide you

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with an opportunity to tell your story in your own words.

0:20

We are creating an archive of stories

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so people around the world and in America will have

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a better understanding of what you and others have

0:28

experienced and observed.

0:31

Future generations must know what happened at Guantanamo.

0:34

And by telling the story you're contributing to history.

0:37

We appreciate your willingness

0:41

to share this with us today.

0:42

And anything you say you'd like us to remove

0:44

just let us know.

0:46

And if want to take a break, we can do that too.

0:47

And we'd like to begin with

0:51

some basic backup information including your name,

0:52

your hometown, your date of birth and age.

0:55

Maybe we can start with that.

0:58

-

Geoffrey Corn.

0:59

I was born in Queens and grew up

1:00

in eastern Long Island, little town called Bellport.

1:02

I was born in 1961, so I'm 50 years old.

1:06

Interviewer

And marital status?

1:10

-

I'm married.

1:12

I'm married to Jessica, formerly Patino.

1:13

I met Jessica in my first army assignment when

1:16

I was sent to Panama in 1984

1:19

and we've been married 27 years.

1:22

Interviewer

Children?

1:25

-

Two children.

1:26

My daughter, Jillian is 21

1:27

and she lives here with us in Houston,

1:29

she goes to school locally.

1:31

And our son Owen is 20,

1:33

and he's a first year cadet

1:35

at the United States Air Force Academy.

1:37

Interviewer

And your current occupation?

1:40

-

I'm a law professor

1:42

at South Texas College of Law in Houston.

1:43

Interviewer

Or maybe just quickly

1:46

a little background on your own education.

1:47

-

I was no scholar as a high school student,

1:50

sometimes I have nightmares that I wake up

1:54

and I say, I haven't graduated.

1:56

I got to go back and finish.

1:58

I went to a little school in Bellport,

1:59

Bellport High School

2:02

which was not a good school.

2:04

It was good socially.

2:06

It was very integrated school,

2:07

lots of social problems.

2:10

So I learned a lot about people.

2:12

I didn't learn a lot about much else.

2:14

I went to a small college

2:16

in upstate New York called Hartwick

2:17

which was a very good decision

2:20

because it really helped me find my kind of potential.

2:21

Academically, studied history and political science.

2:25

Graduated in '83 and I wanted to serve,

2:29

for some reason I wanted to serve my country.

2:33

I thought I'd go in the army

2:36

for a couple of years and kind of test myself,

2:37

I think there was an element of that.

2:40

They had no ROTC anywhere, the early '80s

2:41

it wasn't very popular.

2:46

So I enlisted in the army

2:47

and went to Officer Candidate School for the army

2:49

which was probably not a very smart decision

2:53

'cause I hadn't no real idea what I was getting into

2:55

and it was pretty miserable, but I made it through

2:58

and I started my career as a intelligence officer.

3:01

I was a tactical intelligence officer trained

3:04

at Fort Huachuca in Arizona

3:07

where the army has its intelligence school.

3:09

And then I was assigned to Panama.

3:11

A tactical intelligence means you're not

3:14

doing like spy stuff.

3:16

You're supporting infantry units,

3:19

providing the information that the commander needs

3:21

to plan and execute military operations.

3:24

It's a very interesting time in Panama.

3:27

I got there, everything was good

3:30

with the Panamanians with Noriega.

3:31

He was our ally.

3:33

We used to train with his army.

3:34

Frequently I'd met him a couple of times in the jungle.

3:36

And then I was there when the whole relationship

3:39

went down the tube.

3:41

I wasn't there for the war.

3:42

I was there for enough low-level hostility stuff

3:44

to get an understanding

3:49

that this business is not like playing G.I. Joe,

3:51

that there are real human stakes involved.

3:53

I bring this up because I find a lot

3:59

of the discussion we have now nationally

4:01

about counterinsurgency and low-level warfare,

4:04

it was very reminiscent to me because while most

4:08

of the military in '84 to '88 was focused

4:11

on the Soviet army and the full the gap in Germany.

4:15

There was this little group of us

4:19

in Panama that was really focused

4:21

on counterinsurgency and leftist insurgencies

4:24

and then when the problems with Noriega began,

4:27

it was a big issue.

4:31

But I applied for a program where the army sends you

4:32

to law school, full time.

4:35

I was turned down twice

4:38

and got it in my last year of eligibility.

4:40

So they sent me to George Washington University

4:42

where I earned my JD,

4:46

and then you're basically an indentured servant.

4:48

So I owed them six years of service as a JAG officer.

4:51

And I went for my first JAG assignment

4:56

to the 101st Airborne Division.

4:59

And then after four years there

5:01

the Army JAG school is the only accredited law school

5:05

in Department of Defense.

5:10

It's accredited to award an LLM.

5:11

So all the army officers

5:14

who stay beyond a certain point in their career,

5:16

usually beyond about six or seven years

5:18

go back to the JAG school and earn an LLM.

5:21

They go for 11 months.

5:24

I received my LLM in '97

5:26

and that was the end of my educational path.

5:31

Interviewer

So maybe you can take us up to

5:35

just before 9/11 'cause I think that's important

5:37

in terms of-?

5:40

-

So after I earned my LLM,

5:41

one of the great assignments in the JAG Corps

5:44

because the JAG school is

5:46

in Charlottesville, Virginia,

5:47

is to get selected to stay there as a faculty member.

5:49

So the faculty members,

5:52

the professors at the JAG school

5:53

are active officers on three year assignments.

5:56

And most of them are selected coming

6:00

out of the graduate course, the LLM program.

6:02

And I thought that if I was going to stay there

6:04

I would teach criminal law because that's pretty

6:08

much all I have done in my first assignment,

6:11

and I'd done a lot of it.

6:14

But I also applied for the International Law department

6:16

and it turned out that

6:20

that's the department that hired me.

6:21

And so I stayed on the faculty for three years

6:24

teaching what we call International and Operational Law.

6:26

And that was when I really started to get deep

6:30

into the whole Geneva Convention issue

6:33

and applicability of the law.

6:36

And at that time, the main mission

6:38

of the army was peacekeeping operations, Haiti, Bosnia

6:39

Kosovo, Somalia, East Timor, which were these

6:44

not really war, not really peace,

6:47

no one was really sure what rules applied.

6:50

But one of the key principles that we hammered

6:53

into our JAG students was

6:57

that no military operation can be conducted

6:59

in illegal vacuum.

7:03

There has to be a framework

7:04

of operational rules that regulate things

7:07

like the use of force, detention, interrogation.

7:11

So the army and DOD actually for many years

7:16

was very successful in a policy application

7:20

of law of war principles.

7:23

It is still the foundational directive of the army

7:27

or the Department of Defense

7:33

when it comes to regulating military operations.

7:34

And the regulation, the directive, you said

7:37

that the armed forces of the United States

7:41

follow the law of war in any armed conflict

7:44

and follow the principles of the law

7:47

in all other military options.

7:49

Now what those principles were was always a matter

7:52

of debate and analysis, but the basic premise was clear.

7:55

And I wrote a lot about that when I was

7:59

at the JAG school, that was one of my areas

8:02

of scholarship was to emphasize the fact that

8:05

the logic of this directive was very clear,

8:08

that it really, each is back,

8:11

its antecedents and such things

8:12

like the Martens Clause of the Hague regulations

8:15

that you cannot predict every type of war.

8:18

And that was one of the things I learned in Panama.

8:22

When you wake up one day and you're

8:26

a welcome ally and you wake up the next day

8:29

and suddenly you're the enemy.

8:32

And when I got there, if somebody had said

8:34

we're going to go to war with Panama in four years,

8:36

everybody would have said,

8:38

Get this guy drug tested.

8:41

I think of all the lessons I learned there

8:45

that was the one that was most significant.

8:47

And look at where we are today,

8:49

who could have predicted when we were younger

8:51

that the United States would be 10 years

8:54

on the ground in Afghanistan?

8:56

That was the Soviets problem.

8:58

So we hammered that.

9:00

Because we can't predict every military operation

9:03

there has to be a normative framework

9:05

that will kind of plug the interstitial gaps

9:08

between international armed conflict

9:13

and non international armed conflict

9:16

and peace versus war, et cetera, et cetera.

9:18

And from there, I did that for three years

9:23

and I left in 2000 and I went to

9:25

the Army Command and General Staff College

9:28

which is not for lawyers really,

9:30

that's where you learn planning

9:35

and execution of military operations at a certain level.

9:36

It's a good course.

9:40

And I remember a lecture we had at the beginning

9:43

where the deputy commandant got up

9:45

and he basically,

9:48

there are a thousand students in that auditorium

9:50

and he basically did this prediction of the future

9:53

where he was using language from Robert E. Lee

9:56

and Ulysses Grant about dispatches from the front,

10:00

and he was basically saying the same thing,

10:04

"We can't predict where you are

10:07

going to be called upon to serve,

10:10

but we can predict you will be called upon to serve,

10:12

and you will distinguish yourselves

10:15

and what you learn here

10:17

will help you prepare for that."

10:18

And I left there in the summer of 2001,

10:21

and I was assigned as the chief of International Law

10:24

for U.S. Army Europe,

10:27

the headquarters of U.S. Army Europe.

10:29

So I got there in July.

10:31

Main focus is Bosnia and Kosovo.

10:33

And then I remember I was at a meeting with Germans.

10:36

I forget what it was about, but I can't,

10:41

No, I was up in my office

10:43

and somebody came up and said,

10:44

"You got to come downstairs,

10:46

there's something on the news."

10:47

And we were all huddled around the TV

10:48

in the Colonel's office.

10:49

And we saw the second plane fly into the towers.

10:51

And one of my captains looked at me and said,

10:54

"What do you think's going to happen?"

10:56

And I said, I don't know everything

10:58

that's going to happen

11:00

but I guarantee you within one year

11:02

we'll have boots on the ground in Baghdad.

11:04

I mean, to me, it was what

11:07

whoever was responsible for that,

11:09

it was would become a casus belli to go back to Iraq.

11:11

And then, I was there and really

11:17

I was not particularly connected

11:20

with the war that was going on.

11:22

We did training, the unit across the street from us

11:25

was Fifth Corps and they were the Land Component Command

11:28

for the invasion of Iraq.

11:32

We had a lot of core international coordination issues

11:34

with the Germans, overflight and refueling in Ramstein

11:37

for aircraft that was coming and going to Afghanistan

11:41

including aircraft loaded with detainees

11:45

or back then they weren't called detainees,

11:47

they were called PUCs, persons under confinement

11:49

because we didn't know what to call them.

11:53

Interviewer

These detainees from Afghanistan?

11:55

-

The first residents of Gitmo.

11:58

Interviewer

They came from Afghanistan to Germany?

12:01

-

Well, they transited.

12:03

-

in Germany?

12:04

-

Oftentimes in Ramstein.

Interviewer

And were you there to watch them?

12:09

-

No, I wasn't there.

12:11

From the German side, from the MOD,

12:16

because the photos were getting out in the news,

12:21

you remember that one photo where they were

12:23

all sitting in the back of a C-130, strapped down,

12:25

remember that? Hoods, head shackled,

12:27

like these photos were coming out.

12:30

Interviewer

From Germany?

12:33

-

Well, from the media.

12:34

But then the question was,

12:36

what's on those planes that are coming and going?

12:37

But I'll tell you the biggest thing that

12:40

I remember was the confusion

12:42

of the younger JAG officers,

12:44

many of whom I had taught at the JAG school,

12:46

what's going on?

12:50

What is this PUC?

12:52

We've never heard of it.

12:54

I mean, we've either got prisoners of war or civilians.

12:56

And so we were all

12:59

at the middle rung of the totem pole.

13:01

We were trying to understand

13:05

what was going on legally.

13:08

And this was before any of the memos had been released.

13:10

It was very confusing now,

13:13

we had our own mission and it was fairly mundane.

13:15

I mean, our main mission was protect,

13:18

making sure that the installations were safe

13:20

from threat of terrorism

13:24

and a lot of coordination with the Germans.

13:25

After 9/11, the Germans were incredibly supportive

13:28

of the U.S. military.

13:32

Now you have to understand

13:36

that the Germans are hyper sensitive

13:37

about the role of the military

13:41

in their domestic affairs.

13:43

I mean, for obvious reasons, right?

13:45

The Bundeswehr, the German army is not known

13:48

for being aggressive in things like security,

13:51

counter-terrorism.

13:56

On 9/11 there were American bases where

13:58

young German officers, lieutenants and captains

14:01

just got their troops in their trucks

14:05

and drove to the base

14:07

and said to the American commander, "I'm here to help.

14:08

I'll do whatever I need to do,"

14:12

before they even got permission.

14:13

But then there was a lot of coordination

14:15

because there are very strict legal requirements

14:17

in German law before they can provide security.

14:19

And American forces in Germany,

14:22

the bases are still German territory.

14:25

So for example, if we wanted a German unit to help

14:28

with the security on the gate, we actually had to

14:32

coordinate, to designate that area a German military

14:35

security zone under German law.

14:39

And it was a lot of stuff.

14:41

And then really mundane stuff like

14:43

could they eat in the chow hall?

14:44

Interviewer

Can I go back to those (indistinct)

14:49

I need hold for 10 seconds.

14:50

The question is, obviously right

15:07

at the very beginning in January,

15:08

what were you thinking at that time

15:11

given what you had said to us early

15:13

in terms of the rule of law-?

15:15

-

I was perplexed.

15:18

Personally, I couldn't get it.

15:19

I saw the pictures.

15:23

I was listening to the news.

15:26

I was listening to Rumsfeld talking

15:29

about unlawful enemy combatants.

15:30

Now, personally, I think it's valid to say

15:33

that there is a category of an enemy belligerent

15:37

who doesn't qualify to be a prisoner of war

15:40

and therefore is an unprivileged belligerent.

15:43

I don't see that person as a civilian

15:45

because they're part of an organized armed group.

15:49

I mean, there's nothing radical here.

15:52

This is civil war.

15:55

To suggest that the FARC in Colombia

15:59

or the PDF in Panama are civilians who just happened

16:02

to be picking up a rifle

16:08

it's operationally preposterous.

16:11

The difference between a civilian

16:14

and a belligerent is agency.

16:15

A belligerent executes the will of a leader.

16:19

They're not autonomous actors.

16:23

I had actually written about this

16:25

and I had no problem with the suggestion that

16:27

these captives, the Al Qaeda. the Taliban

16:30

don't qualify for POW status.

16:33

I have a little more trouble with the Taliban

16:36

but that's a little bit too complex.

16:38

But what I couldn't understand was the suggestion

16:40

that they were not protected by any law,

16:43

because my understanding was always

16:47

that the baseline was Common Article 3.

16:49

And even if Common Article 3 was inapplicable

16:53

as a matter of treaty law, either as a matter

16:55

of custom or through the DOD policy, we would comply

16:58

with the provisions of Common Article 3.

17:03

Humane treatment.

17:05

Well, what does that mean?

17:06

It's a big debate.

17:08

When I was a young intelligence officer

17:09

we had an old interrogator, Vietnam veteran.

17:11

He made it very simple for us.

17:14

He said, It's more than do unto others.

17:16

It's more than the golden rule.

17:20

What you have to do when you're contemplating

17:22

an action towards a detainee,

17:24

is ask yourself if that were being done

17:26

to your subordinate, would you think it was wrong?

17:28

Don't ask if it's being done to you

17:33

'cause you, we all think we're Rambo

17:35

and we can endure anything.

17:37

But as leaders, we are instinctively paternalistic

17:39

over our subordinates, we demand

17:44

that they be treated fairly, humanely.

17:46

So for us, as an old experienced interrogator,

17:49

it was never a technical analysis.

17:53

It was a common sense analysis.

17:56

So I was perplexed by it all.

17:59

I couldn't really understand

18:01

until I started to see the legal theories come out

18:02

and then it was apparent.

18:07

What had happened was

18:09

a painful lesson to the military

18:13

that policy is malleable.

18:16

Those who give policy can take away policy.

18:19

Law is immutable.

18:24

So what they do, they interpreted the law

18:29

in a way that created a gap,

18:31

and then they overrode their own policy.

18:33

And then the JAGs who were saying, you can't do this

18:37

had the legs cut out from under them.

18:41

Because then if you're the policymaker, you say

18:43

where does it say I can't do this?

18:45

And there was no answer.

18:48

I've lectured on this before.

18:50

In the military operational doctrine,

18:53

as a former intelligence officer,

18:56

what I would do is you look

18:59

for gaps in the enemy positions.

19:01

The best example I can use as the Yom Kippur war.

19:04

The reason that Ariel Sharon was such a hero

19:09

was because in that invasion of the Sinai,

19:12

he found a gap between two Egyptian armies

19:15

at a place called the Chinese Farm

19:19

right on the Suez.

19:21

And the reason that gap is so significant is

19:26

because from an operational perspective,

19:28

that is the vulnerability,

19:31

that's the exploitation point.

19:32

'Cause this unit thinks this unit's covering it.

19:34

And this unit thinks this unit is covering it

19:37

and no one's covering it.

19:39

And Ariel Sharon led his division right

19:41

through that gap of two Egyptian armies,

19:44

cross the Suez before they even knew it

19:47

and achieved such tactical surprise

19:50

in the rear area that it ended the war.

19:53

It was genius.

19:56

So, when I tell my students about this

19:58

and I explain this gap between internal armed conflict

20:01

and international armed conflict

20:05

and you don't meet the right, I say

20:07

why would they be looking for a gap,

20:09

they're looking forward for the same reason

20:11

that a commander looks for it

20:14

because it's the exploitation point.

20:15

And that in my mind really explains

20:18

the legal story of 2001 to 2006.

20:22

By defining the law in a way

20:26

that created a gap in coverage,

20:29

it opened an opportunity to do stuff

20:31

to people that we never would have thought we could do.

20:34

Interviewer

The terminology "combatant" then

20:39

is an invented term to create that gap.

20:41

-

No, I don't think so.

20:43

I think the gap was created

20:44

by the very technical interpretation

20:46

of Common Article 2 and 3.

20:49

That because we're in a war,

20:51

we have the authority of the law of war;

20:55

but because it's not an internal war,

20:58

we're relieved from Common Article 3.

21:00

And because it's not an interstate war,

21:03

we're relieved from all those other rules

21:05

and therefore there's no law here.

21:07

Therefore, these guys are protected only by policy.

21:10

And so the enemy combatant was associated

21:17

with that.

21:19

Because then you say, well, if you're fighting

21:20

in this gap, you're not a prisoner of war.

21:22

And I think that's correct.

21:25

What's not correct is to say nothing protects you.

21:28

'Cause my view was always

21:32

that the principle of humane treatment filled that gap.

21:35

Interviewer

Two questions, one is who created

21:39

that policy in your mind?

21:43

And what did you do when you saw that policy?

21:44

-

I think the answer is pretty clear.

21:47

The Office of Legal Counsel created that policy

21:50

and it was ultimately adopted

21:53

by President Bush right now.

21:54

Interviewer

Did they come up with the term?

21:57

Do you know who came up with the term?

22:00

-

Unlawful enemy combatant?

22:01

No. I don't know exactly where

22:02

that term came from, but that-

22:04

Interviewer

When you saw it happen,

22:08

what did you do about it?

22:10

-

Fast forward a little bit.

22:12

I'm in Germany, 2003, my assignment ends.

22:14

I asked to go to Iraq.

22:20

They said, no.

22:21

I asked to stay in Germany.

22:23

They said, no, we got another job for you.

22:24

We want you to be a regional public defender

22:26

in Tacoma, Washington.

22:29

I said, you know what?

22:32

I haven't done criminal law in a decade.

22:33

But this is the wisdom of the army,

22:35

its great strength and its great weaknesses

22:37

is it's bureaucracy.

22:41

It's good around you out.

22:43

Go there.

22:44

Do that.

22:45

So I went out to Fort Lewis, Washington,

22:46

did criminal law for awhile.

22:47

Kept my hand involved in this a little

22:50

because that was my first involvement

22:52

with the military commissions.

22:53

Because the first group of defense lawyers for the

22:55

the Office of Military Commissions, a couple

22:59

of them had had me as a professor.

23:01

They were all experts in criminal law

23:03

but not international law.

23:06

So one of them, a guy named Mark Bridges

23:07

who's now a Colonel in the army.

23:10

He contacted me and he said, Could you come here

23:11

and help us figure some of this stuff out?

23:15

I kind of was consulting

23:18

with the Military Commission defense team

23:21

from the early phases of the commission process.

23:24

But after a year I decided to retire

23:28

from the army and I applied for a job in the Pentagon,

23:31

a civilian job as the Army Senior Law of War Expert.

23:35

It was a job that had been held

23:41

for about 30 years by a guy named Hays Parks.

23:42

Who's a legend in the kind

23:45

of international law community.

23:47

Hays' moved up to General Counsel

23:50

at the Department of Defense.

23:52

So he vacated the army position.

23:53

I never thought I'd get it but I applied for it

23:56

and for whatever reason, they selected me.

23:59

So suddenly I was back in this, but now I'm

24:02

at this strategic level and I'm the Army's representative

24:06

in something called the Department of Defense

24:09

Law of War Working group,

24:11

which is an ad hoc committee chaired

24:14

by Hays because he's the

24:16

general counsel's law of war advisor

24:17

where we deal with law of war issues.

24:20

And so from the outset, from my first meeting

24:23

I went in kind of belligerent saying,

24:25

why aren't we saying Common Article 3 applies

24:29

to this conflict?

24:32

I don't understand.

24:33

I've been waiting three years

24:34

for somebody to explain this to me.

24:36

And I got a little lesson in the intersection

24:39

of law and strategic policy by a guy I think is one

24:41

of the most brilliant pragmatic lawyers I've ever seen.

24:46

And that is Hays Parks.

24:50

And Hays says, Look, from a legal standpoint,

24:52

it makes sense. What you're saying

24:55

We could say Common Article 3 applies to any conflict

24:56

that's not international.

25:00

That's what it says.

25:02

But it also says, "in the territory

25:03

of a high contracting party," and that's not this war.

25:06

And every time if you go

25:10

to the policymakers at the strategic level and say

25:12

this is a Common Article 3 conflict,

25:16

the suggestion is you are limited

25:19

in your geographic scope, and that's an anathema

25:22

because their whole theory is

25:26

that we have to take this fight to the enemy

25:28

wherever we find them mainly in Afghanistan.

25:30

Interviewer

That's a high contracting party?

25:34

-

Yes. But remember in 1949 when the treaties were open

25:36

for signature, they were not universally adopted.

25:39

So to be fair, and I think we have to be fair,

25:42

as a matter of treaty law, Common Article 3

25:46

was never intended to apply extra territorially.

25:50

It was intended to address the problem of civil war

25:53

which was a scurrilous problem in 1949,

25:57

motivated primarily by the war in Spain

26:00

which led to the death of 250,000 innocent people

26:03

by a conservative estimate.

26:07

by summary execution, torture, murder,

26:10

whatever the case may be.

26:12

But on the other hand

26:16

they weren't thinking about this paradigm.

26:17

So, Hays his point was, Yes,

26:21

I understand what you're saying,

26:23

from a theoretical standpoint this makes sense

26:24

but it won't work.

26:27

We can't call it a Common Article 3 conflict

26:29

and we can't call it a Common Article 2 conflict

26:31

'cause then it suggests Al-Qaeda

26:34

is somehow analogous to a state.

26:37

So what I started to do is I started to think

26:39

about just maybe a different term

26:41

that would mean the same thing,

26:45

an armed conflict that's not interstate

26:48

but that requires you to

26:51

follow basic humanitarian obligations.

26:52

And I coined the phrase, "Transnational armed conflict."

26:56

And interestingly

27:00

it's a phrase that's gained a lot of momentum.

27:01

You'll see it referred to routinely now.

27:05

Even the legal advisor co talks

27:07

about our transnational armed conflict, but the whole theory

27:10

behind it wasn't to create a new type of armed conflict.

27:15

It was simply to say that, go back to the DOD policy.

27:18

You cannot invoke the tools of war and then disavow,

27:23

that's right.

27:30

You cannot invoke the tools of war and disavow

27:31

the rules of war.

27:34

They're a package deal.

27:35

There's great wisdom in this.

27:37

So I started to press that agenda,

27:42

limited effect initially

27:45

but I was only there a year because it was

27:47

in that year that these guys offered me the job.

27:48

And I left that job reluctantly, but you're

27:51

in academia and you know it's not an easy nut to crack.

27:54

So when they offered me the opportunity

27:57

I went to my boss and I said,

27:59

If I thought five years from now I could do this,

28:02

I'd stay.

28:06

But I'm really afraid if I don't take this job now

28:07

I'll never get the opportunity again.

28:09

And that's when I left.

28:11

And then I became much more assertive

28:12

with this issue

28:16

and then became a little bit more involved

28:19

in the military commissions in an advisory role.

28:21

Interviewer

I want to get into that

28:24

and also into the home case

28:25

but going back, I hadn't realized you were in Fort Lewis.

28:27

Fort Lewis had a prototype Guantanamo setting,

28:29

I understood where people got to practice certain

28:33

behavioral patterns before they went to Guantanamo.

28:38

Apparently some hospital corpsman work there

28:41

and got to see you-

28:43

-

News to me.

28:45

Never, never, never even heard of it.

28:46

Interviewer

Also, when you saw this unfolding

28:50

for three years given your sensitivity to understanding,

28:54

there was nobody else you could go to to kind of,

28:58

did you?

29:01

-

Yes.

29:02

So for example, I was at a meeting...

29:03

You have to understand as I said,

29:09

prior to 9/11 there was this very small group

29:11

of scholars who were interested

29:14

in this field and writing on it.

29:16

So back and I think '99

29:18

I wrote an article with a friend of mine

29:20

that explained how a court martial

29:26

under the The Uniform Code of Military Justice is vested

29:28

with jurisdiction to try war criminals,

29:31

and explain the whole lineage of that

29:34

and how you charge it and so.

29:37

And I worked with a guy in Germany, a civilian lawyer

29:39

who'd worked in the command for like 40 years,

29:43

a guy named George B, and he'd read the article

29:46

and he knew that we both had kind

29:49

of a peripheral interest in this while

29:52

we're doing our main job.

29:53

And I came back from a meeting in Bonn and I walked

29:55

in the office and he said to me,

29:58

"Rumsfeld just announced

30:01

we're creating a military commission to

30:03

try unlawful enemy combatants."

30:06

And I said, What?

30:09

And he said, Yep.

30:11

And we looked at the news on the internet

30:12

and I said, I don't understand that.

30:15

Why don't we just court martial them?

30:17

Because if a military commission has jurisdiction

30:19

over these guys, so does a court martial.

30:22

So the idea of using a military tribunal to punish them

30:24

for things like converting a plane into a weapon

30:28

and flying it into a building, I'm all for that.

30:31

That's, perfidious treacherous, inhumane, it's murder.

30:35

It's using civilians as human shields.

30:40

The war crimes, you just keep going down the list.

30:43

But I didn't understand why would we

30:49

create a military commission?

30:51

So we went into my Colonel, who is the senior army lawyer

30:54

in Europe who works

30:58

for the four-star commander of U.S. army, Europe.

31:01

And we had a long discussion about this.

31:04

And he said, "You make a really good argument, Jeff.

31:07

I want you to go type that up

31:10

in an email because I want to send it

31:12

to the Judge Advocate General of the army.

31:15

So I did, I wrote this like four page email.

31:17

I explained to all the jurisdictional piece,

31:20

and he sent it up to Washington DC.

31:22

And the TJAG who became my boss when I went

31:24

to that job in the Pentagon wrote back and said,

31:28

"We appreciate your input."

31:31

So I sat down with the Colonel and the Colonel said,

31:34

Look, it's pretty clear what's going on here.

31:36

The TJAG has been kind of marginalized

31:42

from this process.

31:44

There are other forces at play here.

31:46

I think they were the Office of Legal Counsel,

31:50

the DOD General Counsel Haines

31:54

and the people who worked for him.

31:57

I mean, all this stuff is public knowledge now.

31:59

That's why Congress, a couple of years later

32:03

changes the federal law

32:06

to give the TJAG three stars instead of two.

32:08

The perception is that in that building,

32:11

two stars didn't give them

32:15

the gravitas to kick doors down and say,

32:17

This is wrong.

32:21

The general counsel who is the civilian lawyer

32:23

who works for the Secretary of Defense

32:27

is an extremely powerful agent

32:29

in the legal world of the military

32:30

and national security, very powerful.

32:33

Rumsfeld was powerful, obviously.

32:37

So the general counsel was executing his client's will.

32:40

People don't understand how

32:47

this sausage is made.

32:48

The military lawyers Gouda,

32:50

my boss was Tom Romig and the other TJAGs-

32:52

Interviewer

What is TJAG?

32:59

-

The Judge Advocate General,

33:01

the senior lawyer for each military service.

33:02

Their client is the chief of that service.

33:05

So Gouda's client was the Chief of Naval Operations.

33:09

My jet TJAG was the chief of Staff of the Army.

33:13

But you see, you have to understand those generals,

33:18

those four star generals

33:20

don't execute military operations,

33:22

they resource military operations.

33:26

The mission of the Army and the Navy and the Air Force

33:29

is to train and equip the forces to fight

33:33

and win the nation's wars.

33:36

When we go to war, those forces are plugged in

33:38

to operational commands: CENTCOM, EUCOM, PACOM.

33:41

They work for the Secretary of Defense.

33:46

And chairman of the Joint Chiefs of Staff

33:50

is the Secretary's military advisor

33:53

and the President's military advisor.

33:56

So technically the chairman is not even

33:59

in the chain of command.

34:01

The chain of command is President, Sec Def,

34:03

Combatant Commander Tommy Franks

34:07

or Norman Schwarzkopf.

34:10

And all these other generals in the Joint Chiefs of Staff,

34:11

they're advising.

34:14

So the lawyer for those generals is not

34:17

the decision-makers lawyer,

34:19

it's a peripheral lawyer.

34:22

And what happened was,

34:25

because they were voicing opposition to what was evolving,

34:27

they were marginalized.

34:32

Which was a very interesting

34:34

kind of institutional dynamic.

34:37

And what happened up and after Hamdan,

34:40

where most people don't notice this stuff

34:43

where Congress, Hamdan is decided

34:45

the president's military commission is invalidated,

34:49

the Senate says,

34:52

let's have hearings to figure out what to do.

34:53

They bring in the civilian lawyers,

34:56

the White House Counsel, the General Counsel for DOD.

35:01

Although he wouldn't go, he sent his deputy Dan Dell'Orto

35:05

who's a retired army JAG officer, DOJ, OLC.

35:10

They show up in the morning.

35:13

They all say the same thing.

35:16

There's an easy solution here,

35:17

Just pass a law validating President Bush's

35:19

military commission.

35:23

Because if you do that

35:25

then we can go back to the Supreme court and say,

35:27

Now it's not the president saying this it's Congress.

35:30

And that afternoon Congress called the TJAGs,

35:33

the generals, and then very straightforward,

35:36

"This morning, the president's lawyers told us

35:41

the best solution here is to just pass a law

35:44

resurrecting his military commission.

35:47

Do you agree?"

35:50

And unanimously, they said, No.

35:51

Now that was a moment of legal and moral courage.

35:54

An office in the United States Armed Forces

35:57

does not swear an oath to the president,

36:00

swears an oath to the constitution of the United States.

36:03

But for them to publicly repudiate the position

36:06

of the General Council in front of Congress

36:11

and say, That is a mistake.

36:13

We can do it better.

36:16

And here's what we propose.

36:18

Let us write a law that looks

36:20

like the uniform code of military justice.

36:23

Let us create a really fair process.

36:25

That was a moment of great pride

36:28

for the military legal institution, writ large.

36:32

And for those generals who did that

36:35

it was a moment of great courage.

36:37

Now, some people say, well, what's so courageous.

36:40

They can't get promoted anymore.

36:42

Still to do that, to know

36:44

that you're walking in front of the Senate and saying,

36:46

I disagree with what those, the wow,.

36:49

Interviewer

What about just saying,

36:52

let's just do a court-martial

36:54

and not have a military commission at all?

36:55

-

Right, that was what I thought made perfect sense

36:58

until I saw the military commission that was created.

37:01

So here's what happens.

37:05

In 1942, the Supreme court decides quirin.

37:07

And quirin is a military commission case

37:12

based on the articles of war, which were the predecessor

37:14

to the Uniform Code of Military Justice.

37:18

Quirin commission procedurally looked like

37:21

a court court-martial

37:25

under the articles of war procedurally.

37:27

They were relatively analogous.

37:30

So historically this was kind of a norm.

37:32

We'll use the court martial for the U.S. personnel.

37:36

If we have to try an enemy captive for a war crime

37:39

we'll use a military commission, but they look the same.

37:43

So the commission that tried Yamashita,

37:46

in history we've done hundreds.

37:50

If not thousands of trial by Military Commission,

37:53

it's nothing new.

37:56

It's origins were when you couldn't use a court martial,

37:57

like Zachary Taylor in Mexico.

38:01

But in 1916, Congress amended the Articles of War

38:03

and gave commanders in the field that option.

38:07

If you want to prosecute a captive

38:10

for pre-capture war crimes, you can use your court martial,

38:13

or if you'd prefer you can create a military commission,

38:17

but procedurally they look the same.

38:20

From 1942 to 2002, a radical transformation

38:23

of the court martial occurs.

38:28

And in 1950, Congress enacts

38:30

the Uniform Code of Military Justice.

38:32

And primary objective

38:34

of the Uniform Code of Military Justice was

38:36

to bring process for a military criminal trial

38:38

more in line with a civilian criminal trial.

38:42

And over the years, this has enhanced.

38:46

So big, big developments, for example

38:48

the creation of the military judge, because in 1942

38:52

if you were a court martial, you had no military judge.

38:56

You had a legal advisor, but objections were ruled

39:00

upon by the president of the court -martial,

39:03

a lay officer.

39:06

Rules of evidence.

39:07

The Uniform Code of Military Justice, first off,

39:09

it creates the Military Rules of Evidence

39:13

which are virtually identical

39:16

to the Federal Rules of Evidence.

39:17

And then it actually has a provision that says

39:19

whenever the Federal Rules of Evidence are amended,

39:22

if Congress or the president doesn't make an exception,

39:25

within six months

39:29

they automatically apply to the military.

39:30

Procedurally, the court martial,

39:33

I personally think it's better than a federal court

39:36

for reasons beyond the scope.

39:39

What president Bush decided to do

39:41

through his advisors is to resurrect the same

39:44

military commission procedure that was used in 1942.

39:49

The problem was, in 1942

39:54

it may have matched a court martial, but by 2002

39:57

it was like this,

40:00

so no judge, no rules of evidence,

40:02

defendant can be excluded from the tribunal

40:07

for reasons of security, no appeal,

40:09

the same person who chooses the charges,

40:14

picks the prosecutor, picks the defense

40:16

and is the appellate authority; unheard of.

40:18

So what I think happened is that...

40:23

people say the goal was a kangaroo court.

40:29

I'm not ready to reach that point.

40:33

I'm friends with the first prosecutor

40:36

of the tribunal who was very frustrated.

40:38

He was a absolute expert in military criminal laws,

40:41

name was Colonel Fred Borch.

40:44

He's now the historian for the JAG school, the JAG Corps.

40:46

He was very frustrated.

40:50

He felt like the demand on him was, I want results,

40:51

but what prosecutor has never experienced that:

40:55

I want results.

40:59

Did they want a kangaroo court?

41:02

I don't think so.

41:04

What they didn't want was all the process

41:05

that a court martial gives,

41:08

especially appellate process.

41:10

Because if you remember, in 2002,

41:14

one of the core principles of the order

41:15

that created the military commission was,

41:18

No judicial review.

41:20

We don't want courts intervening

41:22

in what we're doing down here in Gitmo, remember?

41:25

if you court martial one of those detainees,

41:28

by statute they get access to judicial review

41:32

all the way to the Supreme court in the United States.

41:35

So it was never an option

41:37

because I know that when this process began

41:39

the military lawyers came to the table right away and said,

41:43

We don't need to reinvent the wheel here.

41:47

We've got a process that works.

41:49

We know how to do it.

41:53

It's easy.

41:54

And the same crimes you charge

41:55

for the military commission, you charge here.

41:57

And the civilian leadership said, we're not doing that.

41:59

-

I want to talk about today's military commissions

42:05

at the end but I just don't want to overlook

42:07

when you were involved in Hamdan decisions

42:10

that you mentioned, maybe you could just tell us

42:12

how you were involved in that.

42:15

-

When I got here at the law school.

42:18

I was writing a lot on these issues.

42:22

And one of the issues that, as I said,

42:24

became one of my big areas

42:27

was this what international lawyers call

42:30

"conflict classification."

42:33

What is an armed conflict?

42:35

Can you be in an armed conflict with terrorism?

42:37

What type of armed conflict is it?

42:41

Because, I teach my students,

42:42

If you run a boil this whole debate down, just think

42:46

of three methods that the government uses to

42:49

incapacitate a threat:

42:51

deprivation of life, deprivation of liberty,

42:53

and criminal punishment.

42:56

And then I contrast for them peacetime

43:00

versus wartime authority.

43:02

Peacetime, loss of life is a measure of last resort;

43:05

war time, it's a measure of first resort.

43:09

Peace time, it's based on actual threat;

43:12

wartime, it's based on presumptive threat, status,

43:15

enemy belligerent.

43:18

Deprivation of Liberty: peace time,

43:20

the notion of preventive detention,

43:22

it's been permitted in extremely narrow situations,

43:27

mentally ill, and now we've got the recent cases

43:30

of recidivous sexual offenders.

43:34

Wartime, it's the norm.

43:36

Your status means we detain you preventively

43:38

not punitively.

43:41

Peace time, you want to criminally punish someone,

43:42

you have all the process of a normal criminal trial.

43:45

Wartime you can use an extraordinary tribunal

43:48

called the Military Commission.

43:51

So put those up on a board and ask yourself

43:53

why was it so important after 9/11 for Congress,

43:55

for the president to say

43:59

this is now a war, an armed conflict.

44:00

So I'd been writing a lot about that.

44:03

But one of the issues that really interested me is,

44:05

if you can be in an armed conflict

44:09

with terrorist group, which I think you can,

44:11

how do you know the difference between when

44:15

it's a law enforcement phase versus a conflict phase?

44:17

And I wrote this article where I proposed

44:22

that the most significant indicator

44:26

is the authority that the government

44:28

the armed forces to deal with the threat.

44:31

'Cause that illuminates the government's view

44:33

that you're in an armed conflict.

44:41

So if the government says you can kill

44:42

as a measure of first resort,

44:44

if the government says you can preventively detain,

44:45

the government says, you can try by military tribunal.

44:48

It must be invoking the power of war.

44:50

And therefore you must respect the rules.

44:53

I mean, so we go back to that basic position.

44:57

So it was what I called the ROE test,

44:59

the rules of engagement test.

45:01

When you can kill somebody

45:03

not because they actually threaten you

45:05

but because you determine they belong

45:07

to an organization, that's war.

45:09

And Charlie Swift's saw it.

45:12

Charlie Swift who was now defending Hamdan

45:14

in the second trial.

45:17

And Charlie Swift was trying to argue

45:19

that the attacks on the embassies in Kenya

45:21

and Tanzania and the attack on the coal

45:27

was not within a period of armed conflict.

45:29

And he saw the article and he contacted me

45:33

and he said, I love this idea

45:36

because I think it's credible.

45:37

We can concede that 9/11 was the initiation

45:38

of an armed conflict, but I want to argue that

45:42

the charges that predate 9/11,

45:44

there's no subject matter jurisdiction.

45:47

The really weird part about this,

45:50

and lawyers will understand this.

45:53

If we say that the jurisdiction

45:57

of the tribunal is limited to war crimes,

46:00

and that to have a war crime

46:03

you have to have a war,

46:05

which we call an armed conflict.

46:06

Then we would assume

46:08

that that's a jurisdictional question,

46:09

which is a legal question.

46:12

But Congress made as an element

46:14

of every crime that the jury has to make a finding

46:16

that the crime occurred in the context

46:21

of an armed conflict, which is bizarre.

46:23

They turned a jurisdictional issue into a factual element.

46:26

But by doing that, they opened the door to the defense

46:31

being able to call experts

46:35

on what is an armed conflict,

46:37

to aid the finder of fact in deciding whether

46:40

or not the government has met its burden

46:42

of proving that this conspiracy occurred

46:44

in the context of an armed conflict.

46:47

And that's how I ended up testifying.

46:49

And I wasn't in Guantanamo

46:51

because I was teaching over in Europe.

46:53

So they arranged it by VTC, from the embassy in Madrid,

46:55

which was also kind of weird because

46:59

I went over there to do it

47:02

and there's a guy he's sitting in there

47:03

and he throws his card over me and it's special agent

47:05

so-and-so the FBI.

47:08

And I said, what are you doing here?

47:10

He goes, I don't know.

47:12

I just got an email from Washington that said

47:13

you're going to be here testifying.

47:15

And I have to sit in and listen to what you say.

47:17

Which was huh? Whatever.

47:18

Interviewer

Did you ever go to Guantanamo?

47:22

-

I haven't been.

47:24

Interviewer

And what is your thought about

47:26

the current trials going on of KSM-Military Commission

47:29

given what you've said up to now?

47:33

-

This is interesting.

47:35

The Dean and I disagree very strongly on this,

47:35

and actually I was supposed to have gone down there

47:39

for the arraignment as a representative

47:41

of the National Institute of Military Justice

47:44

but I had another conference I had to attend.

47:47

The Dean is adamant that we shouldn't be using

47:49

these tribunals that they're invalid.

47:52

I'm not sure I agree with that.

47:54

I think that the Congress, with the assistance

47:56

of the Judge Advocates General has done a really

47:59

admirable job of curing the procedural defects

48:03

of the tribunals in large measure.

48:06

And some of that was stimulated

48:09

by the military judges that were finally included

48:12

in the process.

48:16

So there was a period of time from '06 to '09

48:17

where you couldn't use a statement obtained

48:20

by torture, but you could use an understatement

48:23

obtained by coercion, short of torture,

48:26

so long as its probative value outweighed its prejudice.

48:28

And every time the government offered one

48:31

of those statements

48:33

the military judge excluded it, every single time.

48:34

And then in '09, Congress amended the statute to

48:37

prohibit any statement obtained by coercion.

48:40

So procedurally, I think that it is so much

48:43

like a court martial now.

48:48

That I think it's a little bit invalid to say

48:50

that it's a Mickey mouse court.

48:53

The Dean has used the term, It's a circus.

48:55

I also know that the guy who's in charge of it now,

48:59

Mark Martins, he's a genuine force of nature.

49:01

I've known him for a long time

49:04

and I have great admiration for him.

49:07

And I know the deep in his heart

49:09

his objective is to make this process credible

49:11

not to just get results.

49:14

The flaw, I believe is the subject matter jurisdiction.

49:17

I think Congress vested that tribunal

49:22

with offenses that are not war crimes.

49:25

And that begs the question,

49:28

If the purpose of the military commission historically

49:31

was that you want warrior judging warrior.

49:34

And I think that's a good theory,

49:37

I think that for a war crime, people

49:39

in the profession of arms have

49:44

a unique competence to sit in judgment

49:45

of others who claim to be in that profession

49:48

and then violate the rules.

49:52

I'm heavily involved in a case

49:54

at the international tribunal for Yugoslavia

49:56

where I see all the flaws of having people

49:59

judge alleged war crimes who don't understand war.

50:03

That makes sense to me.

50:07

But I don't think a military tribunal has

50:09

any special competence over material support

50:12

for terrorism or terrorism or hijacking

50:15

or conspiracy,

50:23

and some of it's ludicrous, aiding the enemy.

50:25

You are the enemy.

50:27

How can you charge me with aiding the enemy

50:29

if I'm fighting you?

50:31

That's my job.

50:32

It's a bill of attainder.

50:33

I think what's happened is that Congress has

50:37

in fact created a national security court,

50:40

a special court for special defendants

50:43

for special crimes.

50:46

I don't think we need to do that.

50:51

I think our federal courts are competent

50:52

and capable of dealing with that.

50:55

So my gripe with the Military Commission now

50:57

is the overly broad subject matter jurisdiction.

50:59

Charge Khalid Sheikh Mohammed

51:05

with a conspiracy to terrorize the civilian population,

51:07

to treacherously convert a civilian object

51:11

into a weapon, to deliberately attack civilian objects.

51:16

But don't charge him with attacking the Pentagon.

51:22

That's not a war crime.

51:25

Don't charge him with material support for terrorism.

51:28

And that case was just argued

51:33

in front of the DC circuit court of appeals.

51:35

I've been involved in Amicus briefs on that issue.

51:38

But I think if we reserved it to what are really war crimes

51:41

then I think actually Khalid Sheikh Mohammed is

51:46

getting a lot more process

51:49

than his war criminal predecessors have gotten in the past.

51:51

And it's nothing we should be ashamed of.

51:55

Interviewer

And why do you think Congress

51:58

doesn't hear you?

52:00

Why do you think Congress did something other

52:02

than what you suggest?

52:03

-

I think that the lawyers that were involved

52:06

in drafting the Military Commission Act wanted

52:13

to make sure that they had options

52:16

and wanted to be sure...

52:20

And you understand this, it becomes so subtly complex

52:23

to say, Khalid Sheikh Mohammed

52:27

is a privileged belligerent.

52:29

So therefore he can be prosecuted

52:32

by our domestic courts for murder

52:33

if he kills an American soldier, that's true.

52:35

But that doesn't mean killing the American soldier

52:38

is a war crime.

52:40

And the difference becomes jurisdiction.

52:41

I think Congress was worried because there was a lot

52:46

of fighting going on over conspiracy, over murder

52:48

by an unprivileged belligerent as a war crime,

52:52

they were concerned that some of the war crimes

52:55

they had enumerated would not be effective.

52:58

And so they hedge their bets

53:01

by including within the jurisdiction

53:04

these traditional domestic criminal offenses.

53:07

Is material support to terrorism a federal crime?

53:10

Yes.

53:13

In my opinion, it is the federal government's

53:15

Preventive Detention Act.

53:18

How many defendants who've been charged

53:21

in an Article 3 court with material support

53:23

to terrorism have been acquitted? not many.

53:26

And if they have been acquitted,

53:29

they've been convicted on another charge.

53:30

So it's a partial acquittal.

53:32

They all go to jail for extended periods of time.

53:34

It's Article 3 sanctified preventive detention.

53:37

It's the triple in Kuwait,

53:43

attempted conspiracy to support material support

53:45

But I don't think a military tribunal

53:51

has any special competence.

53:53

Now I will say one thing in defense of this,

53:54

two things in defense to be fair.

53:57

First off, and I think the DC circuit

54:00

is going to weigh in on this.

54:02

Congress is vested with the authority to define

54:04

and punish violations of the law of nations.

54:07

So the question is, what does that mean?

54:10

Does that mean Congress has to wait

54:12

for everybody else in the world to say this is a war crime

54:14

or does Congress have some room

54:17

on the fringe of accepted war crimes to help define?

54:19

I think that's a fair argument.

54:23

That's how international law evolves,

54:25

states, step, one step further.

54:27

So if there was an argument that in this

54:31

unique type of war,

54:33

this might not be an accepted war crime

54:35

but it's an evolving war crime.

54:37

I'm comfortable with that.

54:40

The problem is then you've got the ex post facto issue

54:42

'cause you can't charge the guys who did it before.

54:45

All right, that's one argument.

54:48

The other argument is

54:50

and I've heard this made not frequently

54:51

but I think it's plausible.

54:53

There are some of these defendants who because

54:55

of who they are and who they're associated with,

54:58

the risk of sitting in judgment of them is profound.

55:02

So if you imagine we bring Khalid Sheikh Mohammed

55:07

to a federal court, and I'm a juror on that case.

55:09

I think what's going to go through my mind is

55:13

that when I convict him, I am going to be marked

55:16

for life as the one of the jurors who convicted this person.

55:21

And in that sense, I think there's some merit

55:28

to the argument that the primary mission

55:31

of the military is to accept risk on behalf of the nation.

55:33

That's what we do.

55:37

I think there's some merit in the argument that

55:40

one plausible basis for using a military tribunal

55:43

for these offenses is because the people

55:47

we're trying are going to create a risk

55:49

for the people in the process for forever,

55:52

and that's their job.

55:55

Interviewer

A court martial could do the same.

56:00

-

Could.

56:04

Interviewer

Should Guantanamo be closed?

56:06

-

Personally, I think Guantanamo,

56:07

it's a policy lightening rod.

56:09

It has the impromptu tour of a Gulag.

56:12

The irony is if it looked like it looks now back in '02,

56:15

we wouldn't be talking about closing it.

56:21

So I think we've done enough with it

56:23

that if we're being objective? No.

56:25

We've invested so much in it.

56:29

We've created a good facility.

56:31

We've got good rules.

56:32

We're doing it right.

56:34

But the real question is,

56:36

can you ever shed that imprimatur?

56:38

The answer is to me,

56:41

it's a red herring because you could close it

56:43

but you're just going to recreate it somewhere else.

56:45

It doesn't make sense

56:48

as an effort to avoid federal jurisdiction

56:51

because that's all been nullified by the Supreme court.

56:52

So could you create it in Kansas, at Fort Leavenworth

56:55

or in Dugway Proving Ground in Utah?

56:58

Yeah. You could recreate it

57:02

but substantively nothing's going to change

57:03

except that they might be colder in the winter.

57:05

Interviewer

And what about holding

57:08

40 odd men indefinitely?

57:11

Do you support that?

57:13

-

Well, first of all, I struggle a little

57:16

with the notion of indefinite,

57:18

because all war time preventive detention

57:21

theoretically is indefinite.

57:25

You capture the enemy.

57:27

You don't know when the war is going to end.

57:28

And the psychological toll of that is profound.

57:32

I mean, you think about our POW's from Vietnam,

57:34

just year after year after year,

57:37

they have no idea,

57:40

they're there until the conflict ends.

57:41

So do I support it?

57:44

I think the difference is what we've done is we've

57:45

taken a principle from kind of traditional wars

57:48

and we've grafted it onto this untraditional war.

57:52

So here's where I come out on this.

57:55

I think the principle in theory is valid,

57:57

if we have a good system of determining

58:01

that you are a member of this belligerent group

58:04

we can preventively detain you.

58:07

Now that piece is not the military commission,

58:09

that's the CSRT;

58:11

and I just finished an article where

58:13

I think it's unconscionable

58:15

that we don't give these detainees a lawyer

58:17

not a lay representative, a lawyer in this process.

58:21

I think it's in our interest to have somebody

58:24

who understands the ethos of zealous representation,

58:26

the Sam Liebowitz model from the Scottsboro cases,

58:31

or John Adams.

58:37

There's something special lawyers understand.

58:39

But I think if we fix that and we're confident

58:42

you're an enemy belligerent, then I'm not

58:45

troubled by long-term preventive detention.

58:47

But what I do think is because this principle,

58:50

no one knows when war is going to end,

58:56

when it starts

58:58

but nobody really expects it to last 30, 40, 50 years,

58:59

The Geneva conventions were not written

59:02

in anticipation of the next 30 years war.

59:04

What I've been thinking about is

59:08

I think we have to modify these principles a little.

59:10

For example, I think we have to adopt something

59:13

or we could adopt something that like we do

59:16

for classified information.

59:18

We classified initially

59:19

and then there's an automatic sunset provision.

59:21

So we would say pick a date, 10 years.

59:25

10 years is about as long as an American

59:29

has been detained as a prisoner of war.

59:31

So at the 10 year mark,

59:33

the authority to detain is presumptively gone.

59:35

And then you impose a very heavy burden

59:40

on the government to go

59:42

into a Article 3 court and justify.

59:44

So you shift the burden,

59:48

giving these guys lawyers,

59:50

creating a presumptive termination date

59:52

for the authority to detain.

59:55

I think those are adjustments

59:56

to the general principle that are necessary

59:58

because I don't think the general principle

1:00:01

anticipated this range of application.

1:00:04

Interviewer

We're almost done

1:00:07

'cause I know we are in time pressure,

1:00:08

but have you suggested

1:00:11

that publicly what you just told me now?

1:00:11

-

I've been doing it in some conferences.

1:00:14

I want to write about it

1:00:16

but I think it's coming eventually

1:00:19

unless the other option occurs

1:00:23

which is this "war," and I know people say, it can't be,

1:00:26

I get it.

1:00:30

But this U.S. government asserted "war" kind

1:00:32

of fizzles it, peters out, by the way

1:00:35

we're not detaining many people anymore.

1:00:38

We're killing them.

1:00:41

So then you kind of, attrit down

1:00:42

to the hardcore 40 or 50 that no one cares about

1:00:46

candidly, they're unsympathetic.

1:00:51

And then they just kind of like harmless error.

1:00:54

I think that's a real possibility.

1:00:59

Interviewer

Harmless maybe if you leave them-

1:01:01

-

No, no harmless era that yeah,

1:01:02

they're going to spend the rest

1:01:04

of their lives there.

1:01:05

Interviewer

But that goes against your-?

1:01:07

-

I agree, I think that's a real option.

1:01:08

What I'm saying is,

1:01:11

if we were bringing in every month, another 20,

1:01:12

30 detainees, I think there would be a really

1:01:15

heightened imperative to adjust this paradigm.

1:01:18

My point is, as it trips down to this kind

1:01:20

of nucleus of evil,

1:01:24

I think the incentive to worry

1:01:26

about these issues is going to become largely academic.

1:01:28

Interviewer

I was going to ask you

1:01:36

if there's anything you want to say

1:01:37

that I didn't ask you, but in those terms

1:01:38

where will we be in 10 years

1:01:39

the way you're looking at this?

1:01:42

-

I think it's anybody's guess.

1:01:44

I actually think that

1:01:46

this may just be the opening chapter

1:01:47

in expanding this notion

1:01:49

of what we might call unconventional armed conflict

1:01:51

to other contexts.

1:01:55

Counter piracy.

1:01:56

News yesterday was at EU warships

1:01:58

and planes attacked a Somaliland pirate base camp.

1:02:00

What's that?

1:02:07

Is that a war?

1:02:08

Cyber?

1:02:10

Organized criminal syndicates?

1:02:13

In this region, Central America is collapsing

1:02:17

and it's all flying under the radar.

1:02:21

It's stunning to me that the country with the highest

1:02:23

per capita murder rate in the world is Honduras.

1:02:27

These are becoming narcos states.

1:02:32

I think what's going to happen

1:02:34

is exactly what happened

1:02:36

in my own evolution as a soldier

1:02:38

what we think is the dominant national security threat

1:02:40

and paradigm, we're gonna wake

1:02:45

up and it's going to be eclipsed

1:02:47

and it's going to be a new paradigm.

1:02:49

And then that's going to be eclipsed,

1:02:51

it's going to be a new, I mean, our lifetime.

1:02:52

The Wars that we have fought,

1:02:58

when I went in the army in 1983,

1:02:59

there was no way we would have predicted a war in Panama,

1:03:03

a ground war in Iraq, another ground war in Iraq,

1:03:08

a 10 year war in Afghanistan.

1:03:12

I just think that one of the great challenges

1:03:16

for strategic and legal thinkers

1:03:18

is to not get stuck in the last paradigm.

1:03:22

And I think a lot of the problems

1:03:25

we experienced this time

1:03:28

were a product of that.

1:03:30

There wasn't enough forward thinking,

1:03:32

not just from the strategists, but from the lawyers.

1:03:34

So what I think we have to do is try and anticipate.

1:03:38

I really think cyber threat

1:03:40

and an instability in the Caribbean

1:03:42

and Latin region are going to

1:03:47

be two dominant issues going forward

1:03:48

and how the law operates

1:03:52

to regulate them will be very important.

1:03:55

I think the good news is

1:03:57

that one of the lessons that was cemented

1:04:00

by this experiences where we started,

1:04:02

where the military started,

1:04:06

no military operation can occur in a regulatory vacuum.

1:04:08

You must have rules.

1:04:13

And those rules must include principles

1:04:15

of humanity that protect the object of your violence.

1:04:18

Otherwise you unleashed the darkest side

1:04:23

of humanity and it turns into chaos.

1:04:25

Interviewer

And just to throw it out

1:04:31

I don't think we should spend much more time on it

1:04:33

but there was another 9/11 would you just describe

1:04:34

could happen?

1:04:37

-

Yeah, it could.

1:04:41

And hopefully some of these lessons

1:04:42

will be a tempering effect.

1:04:44

Interviewer

Right.

1:04:49

Is this something I didn't ask you, you want to share?

1:04:50

-

No, I think I probably talked

1:04:52

more than you needed me to.

1:04:54

Interviewer

It was actually very interesting.

1:04:56

So Johnny needs 20 seconds of room time before we close.

1:04:59

So we just sit quietly.

1:05:02

Begin room time.

1:05:04

End room time.

1:05:19

Corn, Geoffrey - Interview master file

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