Corn, Geoffrey - Interview master file
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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 | 0:13 | |
at Guantanamo Bay, Cuba. | 0:16 | |
And we are hoping to provide you | 0:18 | |
with an opportunity to tell your story in your own words. | 0:20 | |
We are creating an archive of stories | 0:23 | |
so people around the world and in America will have | 0:25 | |
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 |
Item Info
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