Kadidal, Shayana - Interview master file
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- | Yeah, Yeah. | 0:05 |
- | Okay. | |
- | The switch is the one part | 0:06 |
that's been mangled by the frequent drops, | 0:07 | |
but it's said. | 0:09 | |
It's said so- | 0:10 | |
- | Okay, okay. | |
John, John? | 0:12 | |
John, are you ready? | 0:13 | |
(Shayana coughs) | ||
Peter | Okay, good evening. | 0:14 |
- | Good evening, Peter (laughs). | 0:16 |
Peter | We are very grateful to you | 0:18 |
for participating in the Witness To Guantanamo project. | 0:19 | |
We invite you to speak of your experiences | 0:24 | |
and observations in Guantanamo, | 0:26 | |
and working with detainees. | 0:29 | |
We are hoping that you can... | 0:31 | |
You'll have the opportunity | 0:34 | |
to tell your story to America, and to the world, | 0:35 | |
in your own words. | 0:39 | |
And we're creating an archive of stories, | 0:40 | |
so that people in America, and in the world, | 0:42 | |
will better understand what happened in Guantanamo, | 0:44 | |
and what happened to the detainees | 0:47 | |
after they left Guantanamo as well. | 0:48 | |
And future generations must know what happened. | 0:51 | |
And we are very grateful to you | 0:56 | |
for visiting with us tonight to tell us your story. | 0:58 | |
And if you'd like to take a break at any time, | 1:01 | |
please let us know. | 1:03 | |
And if there's something you said | 1:04 | |
that you wish us to remove, | 1:05 | |
we can remove it, if you let us know this evening as well. | 1:06 | |
- | Great. | 1:10 |
- | Thank you. | |
And I'd like to begin by just asking you | 1:11 | |
to tell us your name, and your date of birth, and age, | 1:13 | |
and where you were born. | 1:18 | |
- | Mm-hmm, sure. | 1:20 |
So my name is Shayana Kadidal. | 1:20 | |
Everyone calls me Shane, except my parents. | 1:21 | |
Date of birth, | 1:25 | |
October 23rd, 1967. | 1:25 | |
So I'm... | 1:29 | |
What is that? | 1:30 | |
48 right now. | 1:31 | |
I was born in Brooklyn. | 1:32 | |
Grew up on Long Island. | 1:34 | |
Live in Manhattan now. | 1:35 | |
And there was a last question, | 1:37 | |
which I've forgot, | 1:38 | |
- | Well, actually, | |
- | because I'm 48, so. | 1:40 |
- | that was the last question. | |
- | Okay (laughs). | 1:41 |
Peter | Why don't you tell us | 1:43 |
a little about your schooling before we go any further? | 1:44 | |
- | Sure. | 1:46 |
- | Well, I went to public school | 1:47 |
out in Long Island in Sayville, Sayville High School. | 1:48 | |
Went to Duke for college. | 1:52 | |
Was a pre-med there, | 1:55 | |
a chemistry and history double major. | 1:56 | |
It was a good thing that I had that history second major, | 2:00 | |
because I was pre-med, and was, had did pretty well. | 2:02 | |
I was ranked, I think, seventh in my class. | 2:05 | |
When I was applying for med schools my senior year, | 2:08 | |
got interviewed at every place, | 2:10 | |
from Harvard Med School on down. | 2:11 | |
Didn't get in anywhere. | 2:13 | |
Three years later, in desperation, | 2:14 | |
went to Yale Law School. | 2:18 | |
So I think, in some ways, | 2:20 | |
that's like the classic sort of model of | 2:21 | |
the typical person who goes to law school. | 2:24 | |
Confused, at their wit's end. | 2:26 | |
No idea what to do, | 2:28 | |
decides to go out for the second undergrad experience | 2:29 | |
that is law school. | 2:32 | |
In my case, it helped that there were no interviews | 2:34 | |
since it was a straight up grade and LSAT matrix. | 2:37 | |
I had only taken the LSAT, | 2:41 | |
because I was so nervous | 2:42 | |
the second time I was applying for med schools | 2:43 | |
that I felt like, if I had a backup | 2:46 | |
that I knew was in my back pocket, | 2:49 | |
I would be calmer in the interviews, | 2:51 | |
because this was becoming a problem | 2:53 | |
after that first year, right? | 2:54 | |
And so I took 'em, I think, | 2:57 | |
the winter before the last couple | 2:58 | |
med school interviews. | 3:02 | |
Yeah, so I showed up at law school | 3:05 | |
not really knowing what law school was about, | 3:06 | |
what lawyers did. | 3:10 | |
You know, I had seen little bits of "The Paper Chase", | 3:12 | |
so I knew it could be | 3:15 | |
psychologically traumatizing that first year. | 3:16 | |
But it was kind of this alternative place. | 3:19 | |
You know, no grades, | 3:21 | |
or in theory, the illusion of no grades, right? | 3:22 | |
It was Honors, Pass grading, | 3:24 | |
so they would have, essentially, A's and B's. | 3:26 | |
If you wanted to distinguish yourself, | 3:28 | |
you could by working really hard and getting those A's. | 3:29 | |
If you didn't care, | 3:32 | |
you didn't have to worry about getting a C, essentially. | 3:33 | |
That's what that grading scheme allowed for. | 3:35 | |
And they encourage you to write | 3:36 | |
two very long sort of pieces, | 3:38 | |
which you typically try to get published, | 3:40 | |
and so it'd generate a lot of academics, | 3:41 | |
and that was a kinda place it was. | 3:43 | |
You know, there was this sort of | 3:45 | |
really terrific dean, Guido Calabresi, | 3:46 | |
who's on the Second Circuit now at the Court of Appeals, | 3:48 | |
and his whole thing was, | 3:51 | |
you're off the treadmill. | 3:54 | |
You don't have to compete like maniacs | 3:55 | |
like you did to get in here. | 3:56 | |
Now, you need to figure out what you love doing. | 3:58 | |
You needed to find that and pursue it. | 3:59 | |
And we're as proud of our graduates | 4:02 | |
who become directors of ballet companies | 4:03 | |
as we are of the people who become Supreme Court justices | 4:05 | |
or top litigators at the big law firms, or whatever. | 4:08 | |
And this was like this kind of PSYOPs by Guido. | 4:11 | |
He was really fantastic at it. | 4:15 | |
And it's sunk in. | 4:17 | |
You know, you both managed to become convinced, | 4:17 | |
that despite going there | 4:20 | |
because you didn't know what you wanted to do, | 4:21 | |
and you'd been rejected for med school, | 4:23 | |
that you were really part of this group of 175 people | 4:24 | |
who were God's gift to humanity, right? | 4:28 | |
And that you really just needed to | 4:29 | |
spend those three years kind of exploring around, | 4:31 | |
and not worrying about the C, | 4:33 | |
and trying to write two long papers, and all that. | 4:36 | |
So really, it was sort of... | 4:38 | |
I had zero expectations for it, you know? | 4:39 | |
It was like George W. Bush | 4:41 | |
at the first presidential debate against Gore, right? | 4:43 | |
Zero expectations. | 4:45 | |
You know, even in retrospect, | 4:47 | |
I don't know whether it was like a cool place to be or not, | 4:48 | |
but I just, you know... | 4:51 | |
After I realized | 4:53 | |
that it was going to be sort of interesting, | 4:53 | |
and there was just this kind of | 4:55 | |
incredible sort of wave of relief, | 4:56 | |
and I have really fond feelings about it till this day. | 4:59 | |
I write our class notes, you know? | 5:01 | |
I'm one of the class secretaries | 5:03 | |
for the alumni magazine that comes out every six months. | 5:05 | |
But there's another thing that makes | 5:09 | |
that role as class secretary appropriate, | 5:12 | |
'cause I'm working on Guantanamo issues now, | 5:15 | |
and our class was kind of associated with Guantanamo. | 5:17 | |
So we started... | 5:20 | |
I was class of '94, | 5:21 | |
graduating year class of '94. | 5:22 | |
So we started in, what? | 5:23 | |
August, 1991. | 5:24 | |
And in '91, Aristide had been overthrown | 5:26 | |
the first time in a coup, | 5:29 | |
and all of his supporters were leaving the country | 5:31 | |
on whatever ramshackle boats they could get on to, | 5:34 | |
and trying to get to the United States for asylum | 5:36 | |
after this coup, right? | 5:38 | |
George H. W. Bush's administration | 5:41 | |
didn't wanna see a repeat of the Mariel boat crisis, | 5:44 | |
where all these dark-skinned Cubans | 5:48 | |
were flooding into Florida, | 5:49 | |
which was then, is now a swing state | 5:50 | |
in every presidential election. | 5:52 | |
They didn't wanna see that sort of appearance | 5:55 | |
of all these dark-skinned Haitians showing up, | 5:57 | |
and then the country not knowing what to do with them. | 5:59 | |
If you'll remember, | 6:01 | |
it was still sort of the early days of kind of HIV. | 6:02 | |
The disease was less than a decade old | 6:05 | |
in the public consciousness in 1991. | 6:07 | |
And the three risk factors listed for HIV were | 6:10 | |
intravenous drug user, homosexual male, Haitian. | 6:13 | |
And so there was that extra sort of fear, right? | 6:16 | |
You know, not only are these dark-skinned migrants | 6:19 | |
appearing on our shores, | 6:21 | |
but many of them may have HIV, right? | 6:22 | |
So the Bush administration, | 6:25 | |
the first Bush administration adopted a policy | 6:28 | |
of interdicting all these refugees at sea, | 6:30 | |
and taking them to Guantanamo to process their claims, | 6:32 | |
and not giving them the kinda full sort of access | 6:36 | |
to sort of asylum rights that they might've had | 6:40 | |
had they set foot in Florida, right? | 6:42 | |
Guantanamo then, as now, under this perpetual lease | 6:45 | |
from the United State, from Cuba. | 6:49 | |
Signed when Cuba was a colony of the United States | 6:52 | |
after the Spanish American War. | 6:54 | |
Both sides had to agree neutrally to end it, | 6:56 | |
so the US could stay there as long as they wanted. | 6:59 | |
It wasn't a 99 year deal, | 7:00 | |
like Hong Kong for the British, right? | 7:02 | |
Basically, a permanent colony. | 7:04 | |
But nominally, Cuban territory, right? | 7:06 | |
So the issue was the same issue then | 7:09 | |
as it was before the Supreme court under George W. Bush. | 7:11 | |
It was, you know, do these Haitian migrants have | 7:15 | |
the same kind of rights that they would have had | 7:18 | |
if they had managed to land in the United States? | 7:20 | |
Is this little patch of military base, | 7:22 | |
for all practical purposes, American soil? | 7:25 | |
And the initial question was, really, | 7:28 | |
do these refugees even have the right | 7:31 | |
to set foot into federal court to challenge | 7:34 | |
whether or not their rights are being respected | 7:38 | |
by the process that's been set up? | 7:39 | |
So that issue went up through the courts, | 7:42 | |
and students ligated it with Harold Koh, | 7:45 | |
one of our professors, | 7:47 | |
who was kind of known as this | 7:48 | |
kind of Covington & Burling government sort of service, | 7:49 | |
kind of middle of the road politically kind of lawyer. | 7:53 | |
And by all accounts, | 7:56 | |
that the experience of working on | 7:57 | |
that litigation kinda radicalized. | 7:59 | |
And he was working with Michael Ratner, | 8:00 | |
and the Center for Constitutional Rights, | 8:02 | |
and so there was that. | 8:04 | |
That sort of closed up the nexus with my current life | 8:06 | |
and my life then. | 8:10 | |
Now, I wasn't one of the students | 8:11 | |
that had Harold for Civil Procedure, | 8:12 | |
and a good 50% of his Civil Procedure students | 8:14 | |
ended up working on that litigation for three years. | 8:17 | |
It was the Team Haiti within our class. | 8:19 | |
And the next semester, | 8:22 | |
there were tons and tons of empty seats | 8:24 | |
in all the first year classes, | 8:26 | |
because students were off working | 8:27 | |
full-time on this case, | 8:28 | |
- | Wow. | |
- | and learning an awful lot more about the law, | 8:30 |
and about the reality of American politics | 8:32 | |
than any of us who were sitting in the classrooms. | 8:37 | |
I wasn't involved, | 8:40 | |
but a ton of my friends were involved with it. | 8:41 | |
And it really... | 8:42 | |
It radicalized our class | 8:43 | |
the same way I think it did Professor Koh. | 8:44 | |
You know, we elected Stephen Bright, | 8:48 | |
a death penalty lawyer, | 8:51 | |
as our class speaker at graduation. | 8:52 | |
And an awful lot of people went on | 8:55 | |
to really distinguished public interest careers | 8:57 | |
out of that group of our class. | 9:00 | |
I think we thought of ourselves | 9:02 | |
as kind of a very public-interest-oriented class, | 9:03 | |
compared to the people before and after us, | 9:06 | |
because the class had been shaped by | 9:08 | |
this experience of- | 9:09 | |
- | So were you affected- | |
(coughing drowns out Peter speaking) | 9:12 | |
Participated in that? | 9:13 | |
- | It was- | 9:14 |
(Peter speaks indistinctly) | ||
You couldn't be in our class | 9:15 | |
and not be kind of affected by it. | 9:16 | |
I didn't participate, | 9:18 | |
but every day, people would come by our room, | 9:19 | |
and talk about kinda what was going on with the case | 9:22 | |
and what they were kind of experiencing- | 9:25 | |
Peter | That inspire you? | 9:27 |
Were you- | 9:28 | |
- | You know, it's funny. | 9:30 |
I mean, the particular... | 9:31 | |
In terms of kind of shaping attitudes | 9:34 | |
towards how government works and all that, | 9:35 | |
you know, certainly. | 9:37 | |
I mean, Clinton got elected, right? | 9:38 | |
A lot of had lived through Reagan in high school, | 9:39 | |
and thought that we might never see a Democrat president | 9:41 | |
in the United States again. | 9:43 | |
You know, a couple of days after the election, | 9:45 | |
my understanding is that | 9:47 | |
Clinton basically reversed his promises during the campaign, | 9:48 | |
and said that the HIV positive Haitians | 9:51 | |
who were kinda the last group, | 9:53 | |
the most difficult people | 9:55 | |
to get out of Guantanamo back then, | 9:56 | |
a little bit akin to maybe the two dozen folks | 9:58 | |
who aren't gonna get cleared right now, | 10:01 | |
that those HIV positive Haitians weren't gonna be allowed | 10:04 | |
into the United States after all. | 10:07 | |
And so the litigation continued | 10:08 | |
even after Clinton was in office, right? | 10:10 | |
That kind of experience. | 10:14 | |
You know, watching the Justice Department | 10:15 | |
seek Rule 11 sanctions against Professor Koh | 10:16 | |
for the filing of the complaint, | 10:20 | |
you know, those kind of things. | 10:21 | |
And the way that the Watergate scandal, I suppose, | 10:25 | |
permanently shattered the faith in government | 10:28 | |
of a certain generation of law students, | 10:32 | |
probably, in the '70s, | 10:33 | |
this was that kind of experience. | 10:36 | |
But as to Guantanamo, | 10:37 | |
I mean, nobody ever thought that the | 10:38 | |
triviality of the actual litigation, | 10:41 | |
the idea that there was a rock iguana there | 10:44 | |
that was endangered, | 10:46 | |
and you couldn't hit it with your car, | 10:47 | |
and it seemed to be treated | 10:50 | |
as if it were protected by the Endangered Species Act, | 10:51 | |
and does that mean that American law applies there or not? | 10:53 | |
You know, those little, tiny things, | 10:56 | |
the slot machine law, | 10:57 | |
that was applied at Guantanamo | 10:58 | |
to prohibit slot machines on the base. | 11:02 | |
You know, those things nobody ever thought | 11:05 | |
anybody was ever gonna encounter them again. | 11:06 | |
But the funny thing was, | 11:09 | |
that one of Harold Koh's students, | 11:10 | |
I mean, not all of the students, | 11:11 | |
you know, again, he was middle of the road guy politically, | 11:12 | |
was a big international law scholar. | 11:16 | |
And there was a right-wing student | 11:17 | |
who was interested in international law issues, | 11:19 | |
and the administrative state, generally, named John Yoo. | 11:21 | |
Both Korean-Americans- | 11:26 | |
- | Was he in your class? | |
- | He was, I wanna say, '90, class of '92? | 11:27 |
'92 or '93? | 11:33 | |
I think '92. | 11:34 | |
(mumbles) Two years ahead of me. | 11:35 | |
I had a class with him. | 11:37 | |
That weird kinda smarmy charisma | 11:41 | |
that people report he had OLC existed then too. | 11:43 | |
Kind of a slightly snide guy, | 11:47 | |
but he attracted sort of people to him | 11:49 | |
with the kind of radiating confidence. | 11:50 | |
You know, back then, I don't know that anybody | 11:53 | |
really thought this was a guy | 11:55 | |
who was gonna have a big impact | 11:56 | |
on the shape of American law. | 11:57 | |
I mean, I think his big issue was | 11:58 | |
that he thought the New Deal was illegal, | 11:59 | |
and the administrative state | 12:01 | |
and independent administrative agencies | 12:02 | |
were unconstitutional. | 12:04 | |
I mean, who could take that seriously as a project, right? | 12:05 | |
But he was Harold's student mentee. | 12:08 | |
They were both Korean-Americans. | 12:11 | |
Harold was a child of diplomats, I think, | 12:12 | |
who were trapped in the United States | 12:15 | |
after the coup in South Korea, | 12:16 | |
or after a coup, | 12:18 | |
or maybe decided to stay, | 12:19 | |
because they didn't wanna go back | 12:20 | |
and legitimate the government. | 12:21 | |
And John Yoo was Korean-American as well. | 12:23 | |
And so they had all these little odd bonds, I guess, | 12:24 | |
in terms of intellectual interests and background. | 12:27 | |
And so John Yoo was there to observe this whole litigation, | 12:29 | |
as I suppose, anybody in the law school was, | 12:32 | |
and realized, that the outcome of it was, | 12:34 | |
the somewhat kind of ambivalent as to whether or not, | 12:36 | |
at best, ambivalent, | 12:40 | |
as to whether or not foreign nationals would have any rights | 12:41 | |
if they were held at Guantanamo. | 12:44 | |
And so, apparently, | 12:46 | |
he was in the Office of Legal Counsel | 12:47 | |
in George W. Bush's White House, | 12:49 | |
the one to write the memos that said, | 12:51 | |
hey, if you're looking for a place to detain | 12:52 | |
law of war detainees | 12:55 | |
while you were trying to sort out who they are | 12:57 | |
or what to do with them, | 13:00 | |
Guantanamo is a place that is close to the US, | 13:01 | |
physically secure, | 13:05 | |
and where people will probably end up | 13:06 | |
having no legal rights, | 13:08 | |
including the right to simply set foot in a court room. | 13:09 | |
Peter | So Shane, at this point, | 13:11 |
you think that that experience that John Yoo had at Yale | 13:13 | |
informed his thinking about Guantanamo, | 13:17 | |
but are you carrying that forward, and saying, | 13:19 | |
that he therefore recommended to the administration | 13:21 | |
Guantanamo based on that experience? | 13:25 | |
(interposing voices) | 13:27 | |
- | I believe there are OLC memos | 13:28 |
that are in redacted form that were released that talk about | 13:30 | |
the status of Guantanamo. | 13:34 | |
- | The question is, | |
is he the person who actually | 13:35 | |
informed the administration of Guantanamo? | 13:37 | |
(Peter speaks indistinctly) | 13:39 | |
- | I'm pretty sure his name | |
is either the sole name | 13:41 | |
or one of multiple names on that memo. | 13:42 | |
Yeah. | 13:44 | |
You can look it up. | 13:45 | |
Recommending- | ||
- | Yeah, I'm not... | 13:46 |
The massive of OLC memos | 13:49 | |
that we've gone through over the years, | 13:51 | |
this one is by no means | 13:54 | |
the most important- | 13:56 | |
- | And can you... | |
For the people who are watching | 13:58 | |
who don't know who Harold Koh is, | 13:59 | |
could you tell us a little bit | 14:02 | |
just briefly? | 14:03 | |
- | Well, sure. | |
So- | 14:04 | |
- | So they can understand it. | |
- | He was a professor at Yale, | 14:05 |
then he was kind of a human rights lawyer | 14:07 | |
in the State Department | 14:10 | |
in the last couple years of the | 14:11 | |
first Clinton administration, let's say, hopefully. | 14:13 | |
Then went back to Yale, | 14:17 | |
and became dean at the law school. | 14:18 | |
I wanna say that he might've done two terms? | 14:21 | |
At least 5 years, maybe 10. | 14:23 | |
I believe he was dean at my 10 year reunion | 14:25 | |
right after Rasul v. Bush was decided. | 14:27 | |
And again, most of my, a big chunk of my class | 14:30 | |
had worked on the litigation | 14:32 | |
of the first Guantanamo case to somewhat, | 14:33 | |
somewhere between ambivalent | 14:37 | |
to negative results in the courts. | 14:38 | |
And I remember, at the class dinner, | 14:40 | |
Harold stood up and said, | 14:42 | |
"See all those years ago, we were right". | 14:43 | |
(Shayana laughs) | 14:45 | |
But after that, | 14:47 | |
he became the legal advisor to the State Department, | 14:49 | |
so the head lawyer responsible for advising | 14:53 | |
the Secretary of State, (mumbles) Clinton. | 14:57 | |
Peter | You should say which administration- | 15:00 |
- | Yeah, under President Obama. | 15:02 |
And so now he's back at the law schools as a professor. | 15:03 | |
Peter | He is? | 15:06 |
- | Yeah, so. | 15:06 |
- | Okay. | |
(Shayana coughs) | 15:08 | |
Peter | After you graduated from Yale, | 15:08 |
what did you move into, | 15:11 | |
or what did you do? | 15:14 | |
- | So I was... | 15:15 |
You know, I didn't know what I wanted to do with myself | 15:17 | |
anymore than I did when I arrived there. | 15:20 | |
I think if I had a long-term plan, | 15:23 | |
it was probably to get some expertise | 15:24 | |
in intellectual property patent law, | 15:29 | |
which is something a lot of people | 15:30 | |
with science backgrounds did, | 15:31 | |
and was in demand in the teaching market, | 15:33 | |
and maybe try to weasel my way into academia at some point. | 15:34 | |
So I spent a lot of time working on academic papers. | 15:37 | |
Published, I think, | 15:40 | |
a law journal article a year for a couple years, | 15:41 | |
until I got a federal clerkship in 1998. | 15:44 | |
It took a while, | 15:47 | |
because '94 was when the Senate, I guess, | 15:49 | |
turned Republican in that disastrous | 15:54 | |
first midterm election of Clinton's. | 15:56 | |
And suddenly, it was nearly impossible | 15:58 | |
for him to get his judges through. | 16:00 | |
So my judge that I ended up working for | 16:02 | |
on the First Circuit, luckily was, | 16:05 | |
had two Republican senators | 16:09 | |
who were moderates by present standards, | 16:10 | |
Olympia Snowe and Susan Collins, | 16:13 | |
pushing for his confirmation. | 16:15 | |
And so he went through, | 16:17 | |
but he was one of very, very few. | 16:18 | |
So I clerked for him up in Portland, Maine for a year, | 16:20 | |
from '98 to '99, | 16:22 | |
then moved back here to New York. | 16:23 | |
It was .com bubble 1.0. | 16:25 | |
And ended up doing a lot of startup organizational work, | 16:29 | |
and some kind of hedge fund organizing work too. | 16:33 | |
They're similarly kinda structured, | 16:36 | |
in terms of kinda tax structure, actually. | 16:38 | |
And I'd been doing that before the clerkship too, | 16:40 | |
setting up little, essentially, | 16:42 | |
kind of offshore partnerships | 16:44 | |
as miniature sort of investment funds | 16:45 | |
run by various friends | 16:48 | |
and acquaintances here in New York City. | 16:50 | |
So now that I work on the Guantanamo stuff, | 16:52 | |
I always like to say, | 16:54 | |
I went from offshore finance to offshore detention. | 16:56 | |
But it's certainly, | 17:00 | |
- | How'd that happen? | |
- | they're worlds apart. | 17:01 |
Completely by chance. | 17:02 | |
So I was living in the East Village on 6th Street, | 17:03 | |
maybe an eight minute walk from the center's offices, | 17:07 | |
Center for Constitutional Rights' offices on 9/11. | 17:10 | |
You know, I guess I had just | 17:16 | |
flown back to the US two days before. | 17:18 | |
Actually landing on the runway at JFK | 17:21 | |
was the last time I saw the towers, | 17:23 | |
'cause some German tourists were yelling, | 17:25 | |
"Oh, there they are, there they are!" | 17:26 | |
right in front of us. | 17:27 | |
And I'd been in India for a month, | 17:30 | |
that's why I was landing at the airport with my girlfriend | 17:32 | |
going from wedding, to wedding, to wedding | 17:34 | |
for four different friends of ours. | 17:36 | |
And at one of those weddings, | 17:38 | |
there was a beach party. | 17:40 | |
It was in Madras on the eastern coast of India. | 17:41 | |
And at the beach party, | 17:45 | |
I saw a 6'4 Indian guy, | 17:46 | |
very shaggy hair. | 17:49 | |
There was something about the big haircut | 17:50 | |
that made me think he was Indian versus an Indian-American | 17:52 | |
over for one of the weddings. | 17:56 | |
And I thought, well that is the tallest guy I've ever seen, | 17:58 | |
who, presumptively, grew up in India. | 18:01 | |
So I went over to chat with him, | 18:03 | |
thinking, this'll be like my opening line. | 18:05 | |
Turned out, English accent. | 18:10 | |
American accent pops out of his mouth. | 18:11 | |
He's a recent Columbia grad, law grad, | 18:12 | |
and he happens to be working | 18:14 | |
at the Center for Constitutional Rights, Jaykumar Menon. | 18:15 | |
So Jaykumar ended up being my... | 18:19 | |
We became friends on that trip. | 18:21 | |
He lived in New York City. | 18:23 | |
Obviously, he worked at the center. | 18:24 | |
Had been there for about a year and a half, I think, | 18:26 | |
at the time of that very chance meeting. | 18:28 | |
And so 9/11 happens. | 18:30 | |
Weeks of reading these stories about | 18:32 | |
kind of all sorts of domestic rights violations | 18:34 | |
in the kind of newly minted war on terror | 18:38 | |
appear in the newspapers. | 18:43 | |
And as a lawyer, | 18:45 | |
you feel like you have to do something about it. | 18:46 | |
And my girlfriend kept saying, | 18:47 | |
"You should go look up | 18:50 | |
your friend that you met on the on the beach | 18:51 | |
at that wedding in Madras". | 18:53 | |
And so I did. | 18:54 | |
Went in, I think it was January 7th, 2001? | 18:56 | |
To- | 18:59 | |
- | 2002. | |
- | Actually, 2001 for me, | 19:02 |
the first time I went into the center. | 19:03 | |
- | Oh, so before then- | 19:05 |
- | Yeah, so- | |
No, no, no, no. | 19:06 | |
Oh, so did I say, January? | 19:08 | |
Sorry, November 7th, | 19:08 | |
November 7th, 2002. | 19:10 | |
So two months or so after 9/11. | 19:13 | |
And I went in, I think, 'cause we were meeting with some, | 19:16 | |
a young newlywed couple who were Sikh, Sikh-Americans, | 19:20 | |
and the husband was asked to | 19:25 | |
take off his turban at airport security, | 19:26 | |
even though the metal detecting wand | 19:29 | |
can pick up a paperclip underneath one of those things. | 19:30 | |
You know, one of your classic examples | 19:33 | |
of security theater, right? | 19:34 | |
It was not designed to expose | 19:36 | |
or go after a particular security threat. | 19:38 | |
It was designed to demonstrate to the other American, | 19:42 | |
white Americans online there, | 19:45 | |
that they were searching the person | 19:47 | |
who looked Muslim, right? | 19:48 | |
Even though every aspect of that | 19:49 | |
is sort of factually and morally problematic, right? | 19:51 | |
So it turned out, | 19:55 | |
that there was one Democrat in George W. Bush's cabinet, | 19:56 | |
as there traditionally is right? | 19:59 | |
Ray LaHood was the Republican in Obama's cabinet, | 20:01 | |
the Transportation Secretary. | 20:04 | |
And Norman Mineta was a Transportation Secretary, | 20:05 | |
a Democrat, in Bush's cabinet. | 20:07 | |
And he had grown up in an internment camp. | 20:10 | |
I think he'd been born in one of the interment camps. | 20:12 | |
And so he was very sensitive to this issue, | 20:16 | |
and he issued guidance that made sure that | 20:18 | |
that didn't turn into litigation, basically, | 20:20 | |
about what to do with turban wearing air travelers, right? | 20:22 | |
So that was November 7th. | 20:28 | |
I was busily doing some research on challenges there | 20:31 | |
when, I think, on November 13th, | 20:34 | |
the first military commission order came out, | 20:36 | |
and that was something much, much bigger, | 20:38 | |
signaled that military powers | 20:40 | |
were gonna be invoked, potentially, | 20:43 | |
in all sorts of aspects of the response to 9/11. | 20:45 | |
And it set off a ton of research needs. | 20:50 | |
And that next week, | 20:53 | |
I feel like I did | 20:55 | |
maybe two or three all nighters worth of research. | 20:56 | |
Was in the archives at NYU | 20:58 | |
pulling up FDR's old orders | 21:00 | |
for military commissions in the Kiran case, | 21:03 | |
doing all this research into, | 21:06 | |
what turned out to be, a lot more domestic case law | 21:07 | |
on military criminal jurisdiction | 21:10 | |
than I thought would have existed, | 21:13 | |
and participating in all sorts of large scale meetings, | 21:14 | |
where every variety of other volunteer, | 21:17 | |
mostly law professors, | 21:19 | |
capital defense attorneys, and so forth, | 21:20 | |
were meeting at big conference rooms at the center | 21:22 | |
to decide what to do about this. | 21:24 | |
And- | 21:27 | |
- | Shane, can I just interrupt? | |
Were you hired at this point? | 21:28 | |
- | No, no, pure volunteer. | 21:29 |
And Nancy Chang, who I know you all know in your project | 21:31 | |
in her later career as a foundation officer, | 21:35 | |
was one of the lawyers at the center | 21:38 | |
I worked with pretty closely. | 21:39 | |
Michael, obviously, was involved, | 21:41 | |
Michael Ratner, with all of the military commission, | 21:42 | |
and later, Guantanamo-related stuff. | 21:45 | |
And Bill Goodman, our legal director. | 21:48 | |
And all because of this chance meeting | 21:50 | |
with Jaykumar Menon on a beach in India at a wedding. | 21:52 | |
(Shayana coughs) | 21:57 | |
So as it turned out, Jaykumar had a son, | 21:58 | |
ended up leaving the center in December. | 22:00 | |
Somebody else was hired to fill his chair, | 22:04 | |
but had some medical problems right afterwards. | 22:08 | |
And so by February, 2002, | 22:11 | |
there was a spot there | 22:14 | |
where they desperately needed somebody to come in | 22:15 | |
and take some of the center's existing caseload, | 22:17 | |
and also keep working on some of these new kind of | 22:19 | |
war on terror cases. | 22:23 | |
So I worked a lot on- | 22:25 | |
- | Hod did you feel about that, | |
getting you hired at that point? | 22:29 | |
- | Mostly just as a practical matter, | 22:31 |
that it was nice to be able | 22:33 | |
to keep paying rent (laughs), you know? | 22:33 | |
I mean, at the time, | 22:36 | |
I didn't think it was either | 22:38 | |
something that could plausibly be a career, | 22:41 | |
in part, because, I mean, I was coming from | 22:45 | |
the world of financial transactions, not even a litigator. | 22:46 | |
You know, I had a year of clerkship experience, | 22:50 | |
and I suppose law school was taught | 22:51 | |
from a litigation perspective. | 22:53 | |
So it's not like anybody who gets out of law school | 22:54 | |
doesn't know anything about litigating, | 22:56 | |
but it wasn't what I thought I would end up in, you know? | 22:58 | |
You know, I wasn't somebody who was | 23:01 | |
comfortable in front of cameras, | 23:02 | |
or speaking in front of even a small crowd of 10 people. | 23:03 | |
You know, that whole aspect of law school | 23:06 | |
made me incredibly nervous. | 23:08 | |
I used to pour sweat every time I got called on, | 23:09 | |
or raise my hand to volunteer, which wasn't very often. | 23:12 | |
I thought, this is a temporary crisis, | 23:17 | |
and it's really important. | 23:19 | |
You should work on it. | 23:20 | |
And it's sort of interesting too, you know? | 23:21 | |
That's what kept me in this through all the hard times, | 23:23 | |
which were, many, many, difficult periods during the... | 23:25 | |
What is it now? | 23:32 | |
15 years I've been at the center. | 23:34 | |
Just that it was fantastically interesting. | 23:37 | |
When I left my clerkship, | 23:39 | |
I didn't think I would ever have a legal job | 23:40 | |
that was that interesting. | 23:41 | |
And the first couple of years at CCR just blew it away, | 23:43 | |
and pretty much been the case since. | 23:46 | |
Peter | Were you involved in the | 23:48 |
Guantanamo issues exclusively in those early years? | 23:49 | |
- | No, there was so much going on. | 23:52 |
I mean, there were legacy things | 23:53 | |
that had to be taken care of, | 23:54 | |
because other people were being moved off of them, | 23:55 | |
or just because they had kind of, | 23:57 | |
they had threatened to kind of blow up, | 24:00 | |
and kind of create, | 24:01 | |
be big time sucks for the center. | 24:04 | |
One in particular was this Cuba Travel Project. | 24:06 | |
So I ended up taking over this project, | 24:09 | |
where we had foolishly signed on | 24:11 | |
to represent pretty much anybody who came to us | 24:13 | |
who was being sanctioned for | 24:15 | |
the subject of financials, civil penalties, | 24:17 | |
financial sanctions for traveling to Cuba | 24:19 | |
and violating the embargo thereby. | 24:22 | |
So if you spent $1 on the ground | 24:24 | |
without the proper licenses in advance, | 24:25 | |
which were not generally widely available to most people, | 24:28 | |
certainly not available to people | 24:32 | |
who wanted to travel for tourist purposes. | 24:33 | |
In Cuba, if you spent $1 on the ground, | 24:36 | |
then you were subject to these very onerous fines. | 24:38 | |
So typically, $7,500 is what they would ask for | 24:40 | |
for a first offense. | 24:43 | |
You know, Ry Cooder ended up paying, I think, 25 grand | 24:45 | |
for his three Buena Vista Social Club trips, | 24:48 | |
where he didn't care about the embargo, and just went. | 24:50 | |
But a lot of these people | 24:54 | |
were either suckered into it by shady travel agencies, | 24:55 | |
or just didn't think that it was a problem | 24:58 | |
if you flew through Canada | 25:00 | |
or some other third country, like the Bahamas. | 25:01 | |
So we took on everybody who came to us for assistance. | 25:05 | |
And you could ask for a hearing, right? | 25:09 | |
And during the Clinton administration, | 25:11 | |
there were no hearing officers. | 25:12 | |
There were no judges to hold these hearings, | 25:14 | |
so all you had to do was write the letter, | 25:15 | |
a little standard form letter, saying, | 25:17 | |
"We ask for a hearing", put a stamp on it, | 25:19 | |
and you had successfully represented this client | 25:20 | |
while Clinton was still president. | 25:23 | |
Then Bush v. Gore happens. | 25:25 | |
George W. Bush is president, | 25:27 | |
and they started making rumblings | 25:28 | |
about naming hearing officers. | 25:29 | |
Well, we had 420-something clients, | 25:30 | |
and about 250 hearing requests in, | 25:33 | |
and five lawyers at the center when I started. | 25:36 | |
There was no way we were gonna be able to do these hearings, | 25:39 | |
even if people paid for the travel costs themselves. | 25:41 | |
So there were a lot of settlement negotiations | 25:45 | |
that happened at the time. | 25:47 | |
There was a lot of preparation to kind of do | 25:48 | |
a scorched earth litigation against the government, | 25:50 | |
if the first hearings actually did start to move forward, | 25:52 | |
which they did in '04, '05, '06. | 25:54 | |
And in the end, most people either settled, | 25:57 | |
or their cases lapsed, | 26:00 | |
because they couldn't name enough judges, | 26:02 | |
and keep them in place long enough | 26:03 | |
to fight the kind of wall of briefing | 26:05 | |
that we were throwing at them, | 26:07 | |
we and other people in the National Lawyers Guild. | 26:09 | |
But this was an example of something that wasn't a big deal | 26:11 | |
under the Clinton administration, | 26:13 | |
blew up into kind of a monster sorta problem for us | 26:15 | |
just in terms of logistics and lawyer time. | 26:20 | |
And it's the kinda thing, | 26:24 | |
that if it went the wrong way, | 26:25 | |
it could have just sunk the center in terms of effort. | 26:26 | |
So there was that. | 26:30 | |
And on the side, I was, you know, | 26:31 | |
it's the wrong term for it, | 26:32 | |
but I was working on the district court research, | 26:33 | |
on a little bit of the Court of Appeals briefing in Rasul | 26:37 | |
on the way up to the court, | 26:39 | |
and also, very actively involved with Nancy | 26:42 | |
on the briefing of a bunch of kind of cases | 26:44 | |
challenging Ashcroft's policy of barring media | 26:47 | |
and family members from deportation hearings, | 26:51 | |
from immigration court proceedings, | 26:54 | |
for people who were so-called special interests detainees, | 26:56 | |
which basically meant anybody | 27:00 | |
who was hauled in for being, quote/unquote, "illegal", | 27:01 | |
for being here without documentation, without a visa, | 27:04 | |
if you are male, Muslim, | 27:07 | |
and from a short list of countries in South Asia | 27:09 | |
or the Arab world, right? | 27:12 | |
We also brought major litigation | 27:14 | |
that may go up to the Supreme court this year, | 27:16 | |
Turkmen v. Ashcroft, | 27:18 | |
about the conditions of confinement for those men, | 27:19 | |
which were barbaric, super-max plus. | 27:23 | |
For anybody- | 27:28 | |
(Peter speaks indistinctly) | ||
Yeah, these were the several thousand people | 27:29 | |
who were brought in in the immigration sweeps, | 27:32 | |
and who fit those criteria, | 27:34 | |
South Asian or Arab, Muslim and male. | 27:36 | |
You were automatically labeled as of interest to the, | 27:39 | |
of special interest to the terrorism investigation. | 27:41 | |
You can imagine the sorta treatment they got | 27:45 | |
from guards in these facilities | 27:47 | |
when the guards were told | 27:48 | |
these are people of interest | 27:50 | |
to what just happened in Downtown Manhattan, | 27:51 | |
but also, kept in solitary, | 27:55 | |
and just cut off from the world. | 27:57 | |
So not only that major litigation | 27:59 | |
about that kind of policy | 28:02 | |
of holding these people in these conditions, | 28:04 | |
and holding them until they were cleared by the FBI | 28:06 | |
of any link to terrorism, | 28:08 | |
which lengthen their stays. | 28:10 | |
You know, a lot of people accepted voluntary deportation, | 28:11 | |
but they ended up sitting in custody | 28:13 | |
for three or four more months while the FBI vetted them all, | 28:18 | |
and cleared everybody. | 28:21 | |
So the first group of 1,200, | 28:22 | |
there were only three criminal charges, | 28:23 | |
and it was for like credit card fraud, and things like that. | 28:25 | |
Nobody had any link to terrorism. | 28:27 | |
But it was a nice example state-side of | 28:31 | |
policies that were being imposed everywhere, right? | 28:34 | |
I mean, historically, anytime that law enforcement | 28:36 | |
and/or the intelligence agencies | 28:39 | |
are caught off guard by something, | 28:40 | |
whether it's the Palmer bombings in the 1920s, or 9/11 now, | 28:42 | |
the response is to go out and sweep in a ton of people, | 28:48 | |
usually using profiling criteria. | 28:51 | |
You know, anybody who's Arab in Afghanistan, | 28:53 | |
anybody who's Sunni in a Shiite neighborhood in Baghdad, | 28:55 | |
anybody who fits those three criteria in state-side | 28:57 | |
among people who are undocumented, right? | 29:01 | |
And then rely on the detention | 29:03 | |
and interrogation process to sort out | 29:05 | |
the weak from the chaff, you know? | 29:07 | |
And- | 29:09 | |
- | So what were you... | |
So what were you thinking | 29:10 | |
during those early months and years, | 29:11 | |
(Shayana coughs) | 29:14 | |
in terms of for your own? | ||
- | Yeah (slurps). | 29:16 |
A couple different things. | 29:19 | |
(cup clanks) | 29:20 | |
One, | ||
that we were gonna keep winning, | 29:21 | |
because a couple of the first cases, I think, | 29:22 | |
with Ashcroft as a lead defendant, we won, | 29:23 | |
because they were First Amendment cases, | 29:26 | |
and those are the easiest kinda things to win, right? | 29:28 | |
The newspaper sued | 29:30 | |
to get access to the immigration court proceedings, right? | 29:32 | |
There's no reason to bar them | 29:34 | |
from every single proceeding for every single guy. | 29:36 | |
There's a set sorta set of standards for this kind of thing. | 29:39 | |
There have to be individualized findings | 29:41 | |
in the individual case | 29:43 | |
that the the government has to trigger | 29:44 | |
by bringing evidence saying, | 29:46 | |
that there's a reason to cut this off | 29:47 | |
for public access, right? | 29:49 | |
And they didn't have that in any of these cases, | 29:50 | |
'cause they didn't have any reason | 29:51 | |
to suspect these people have any involvement | 29:52 | |
in actual terrorism, right? | 29:54 | |
But they were not only barring press from the hearings, | 29:56 | |
but erasing the names of the cases from the docket sheet. | 29:58 | |
So the press didn't even know | 30:01 | |
that there were cases they were barred from, right? | 30:02 | |
It took two months for the immigration bar | 30:04 | |
to start noticing the consistency of this practice, | 30:06 | |
and bring it to the attention of the press. | 30:08 | |
But we brought cases in Detroit | 30:11 | |
and New Jersey on behalf of the press, | 30:12 | |
and in Detroit, | 30:13 | |
on behalf of one particular immigration detainee | 30:14 | |
who was subject to all this, | 30:17 | |
and we won every time in district court, | 30:18 | |
and once on appeal. | 30:20 | |
And I thought, oh, this is gonna be great. | 30:21 | |
I get to sue this bozo, Ashcroft, | 30:22 | |
over, and over, and over again, | 30:24 | |
and I get to win, win, win, win until the crisis abates, | 30:26 | |
and maybe that'll take a year and a half or two years | 30:28 | |
by the kind of looking back at history | 30:31 | |
to see how long these things usually lasts, | 30:33 | |
and then I'll go back to making money. | 30:35 | |
And, of course, none of that worked out. | 30:38 | |
I think the appellate court win in the Sixth Circuit in | 30:41 | |
maybe Detroit Free Press versus Ashcroft | 30:48 | |
was pretty much the last win we had for about two years. | 30:50 | |
And the crisis lasted an awful lot longer | 30:55 | |
than anybody might've anticipated. | 30:58 | |
And so here I am 15 years later (laughs). | 31:00 | |
Peter | Did your mood change along the way, | 31:05 |
and did you start getting more involved | 31:07 | |
in more Guantanamo cases along the way as well? | 31:09 | |
- | I got less involved in Guantanamo (mumbles), | 31:12 |
in part, because people were starting to | 31:13 | |
sorta specialize off, | 31:16 | |
and the center created, for a variety of reasons, | 31:18 | |
a little bit of a project done, | 31:20 | |
brought in two other lawyers | 31:21 | |
to work on the Gitmo stuff on the way up to the Supreme, | 31:23 | |
basically, right before it got to the Supreme Court. | 31:27 | |
So from the Court of Appeals decision in '03 | 31:30 | |
till about 2006, | 31:33 | |
I wasn't really involved with Guantanamo stuff | 31:35 | |
very much at all, | 31:36 | |
and did a lot of surveillance litigation in '05, '06, '07. | 31:37 | |
Peter | Can you tell us, | 31:42 |
just generally, about that (speaks indistinctly). | 31:43 | |
- | It was a challenge to the | 31:46 |
NSA warrantless surveillance program, | 31:48 | |
as was revealed to the public | 31:50 | |
by "The New York Times" in December, 2005. | 31:52 | |
So it was the James Risen and Eric Lichtblau story, | 31:55 | |
saying that the government was engaging | 31:58 | |
in warrantless surveillance. | 32:00 | |
It was targeted at calls between the US and, | 32:01 | |
between someone in the US | 32:06 | |
and someone outside of the US, | 32:07 | |
where one of the two parties was suspected | 32:08 | |
of some involvement with terrorism. | 32:09 | |
But there was a statute that was created | 32:11 | |
allowing the government to go ex parte, | 32:13 | |
just the government to a secret court, | 32:16 | |
the Foreign Intelligence Surveillance Court, | 32:19 | |
to get warrants for justice sort of surveillance, | 32:21 | |
and for some reason, they were going around it, | 32:23 | |
which raised everybody's suspicions, right? | 32:24 | |
Because the court was the | 32:26 | |
most permissive court you can imagine. | 32:27 | |
Had it rejected flat out | 32:28 | |
mid-application among the first 19,000 presented to it | 32:30 | |
between 2005 and 1978, | 32:33 | |
when the court was created, right? | 32:36 | |
So our worry was that, | 32:39 | |
they might've been listening to conversations | 32:41 | |
that even the most permissive district judge | 32:44 | |
would never permit the government to listen in on, | 32:45 | |
conversations of journalists with sources, | 32:47 | |
or lawyers with clients. | 32:50 | |
And then in particular, | 32:51 | |
given all of our national security work at that point, | 32:53 | |
the Turkmen case, the Guantanamo case, | 32:55 | |
the Arar rendition case, | 32:57 | |
that they all involved | 32:59 | |
sensitive communications with co-counsel | 33:00 | |
or litigation participants, | 33:03 | |
like witnesses, or family members of the clients overseas, | 33:04 | |
and that this might've been a mechanism | 33:07 | |
whereby the government was trying to get around | 33:09 | |
having to explain why they would do that | 33:12 | |
kinda surveillance to a court | 33:13 | |
that would probably be quite skeptical of it, right? | 33:15 | |
So he said that, the countermeasures that we had to impose | 33:17 | |
on our own communication practices, | 33:20 | |
the chill that this cast on our communications, | 33:21 | |
the fact that we'd have to go fly | 33:24 | |
and meet people in-person, | 33:25 | |
rather than talk over email or the phone, | 33:26 | |
was a cost to us, | 33:29 | |
and that that constituted legal injury. | 33:30 | |
And so that abstract question of, | 33:32 | |
whether we had proved enough, | 33:34 | |
a tangible enough sort of legal injury, | 33:36 | |
to be able to come into court | 33:38 | |
and challenge the constitutionality | 33:39 | |
of the underlying surveillance, | 33:41 | |
many details of which | 33:42 | |
had been revealed by the newspapers, | 33:43 | |
or more importantly, by the government voluntarily. | 33:45 | |
After the newspaper stories, | 33:49 | |
the question of whether we even had | 33:51 | |
the right to set foot into court to challenge that, | 33:52 | |
that whether we had standing, | 33:54 | |
was raised in these surveillance cases, | 33:56 | |
just in the same way that it was | 33:57 | |
litigated for years, and years, | 33:59 | |
and years in Guantanamo, right? | 34:00 | |
So- | 34:01 | |
- | Were you able to? | |
- | No, so (laughs). | 34:02 |
(interposing voices) | 34:04 | |
Ultimately, | ||
another statute was passed in 2008 | 34:06 | |
that kind of allowed that court | 34:08 | |
to rubber stamp broad programs of surveillance. | 34:09 | |
The ACLU challenged it, | 34:11 | |
and filed a complaint the first day that the, | 34:13 | |
the day that it was signed into law. | 34:15 | |
That went up to the Supreme Court. | 34:17 | |
Five years later, | 34:18 | |
the Supreme Court decided, 5:4, | 34:19 | |
that they didn't have standing | 34:21 | |
on the same kind of theory that we had, | 34:22 | |
although, that statute was designed, | 34:25 | |
in large part, to foreclose standing. | 34:28 | |
But we unsuccessfully argued | 34:30 | |
that that was different from our case, | 34:32 | |
but our case also got tossed from court right afterwards. | 34:33 | |
So- | 34:37 | |
- | you believe that | |
actually, your lawyer/client | 34:38 | |
(Shayana coughs) | ||
discussions were overheard by the government? | 34:42 | |
Did you have any sense of that, | 34:43 | |
or any... | 34:45 | |
(cup thuds) | ||
If you can't say it, then fine. | 34:46 | |
I'm just curious. | 34:47 | |
- | Yeah. | |
I actually can't say in specifics | 34:50 | |
the why we believe so strongly | 34:53 | |
that some of them were. | 34:56 | |
Look, I mean, what we know after Snowden | 35:00 | |
is pretty much everything | 35:01 | |
at some level was tossed into the hopper. | 35:03 | |
So yeah, I think it almost goes without... | 35:05 | |
It's beyond doubt, I think, that it, | 35:09 | |
you know, that they are trying to record everything | 35:11 | |
in terms of phone calls, | 35:13 | |
that they're trying to grab everything that they can, | 35:14 | |
and that they also have the technological capacity, | 35:16 | |
at least now, to do that. | 35:18 | |
That it's actually relatively cheap | 35:20 | |
compared to the size of the intel agencies' budgets, | 35:22 | |
so. | 35:25 | |
- | So I recall | |
a case that Tom Willard brought, | 35:28 | |
where he felt his conversations were overhead. | 35:30 | |
- | Mm-hmm. | 35:32 |
- | Is this | |
similar to- | 35:33 | |
- | Yeah, it was a FOIA case. | |
Yeah, I was the lead counsel on that, | 35:34 | |
along with a bunch of people- | 35:36 | |
- | That's separate from | |
the case you just described? | 35:38 | |
- | Yeah, yeah, no, that one... | 35:38 |
You know, Freedom of Information Act | 35:40 | |
has a lot of built-in exceptions | 35:41 | |
for things that the government classifies, and so forth. | 35:43 | |
So it's a even harder road to hoe | 35:45 | |
than the sort of challenge that we brought directly | 35:51 | |
to the surveillance program on behalf of ourselves. | 35:53 | |
Peter | But you represented it? | 35:56 |
- | Yeah, I represented Tom | 35:58 |
(interposing voices) | ||
and a bunch of other lawyers at the center | 35:59 | |
and so forth, yeah, so. | 36:01 | |
Another case where the | 36:04 | |
Supreme Court declined to hear it, so. | 36:05 | |
- | And you've got- | 36:06 |
(Shayana coughs) | ||
Do you wanna get some more tea? | 36:08 | |
Should we take a break? | 36:09 | |
- | I do, actually. | |
Yeah, so. | 36:10 | |
- | Okay. | |
Why don't we take a break, Johnny? | 36:11 | |
Johnny | Sure thing. | 36:12 |
Peter | Try making... | 36:13 |
Talk a little bit about Guantanamo. | 36:14 | |
How did you get involved in Guantanamo cases then? | 36:14 | |
- | So I guess, fast forward a little bit to late 2006, | 36:17 |
I'd been at the center | 36:23 | |
for a couple of years at that point, | 36:24 | |
a little bit more senior. | 36:25 | |
The lawyer who has been kind of the staff person, | 36:26 | |
kind of the most senior staff person, | 36:29 | |
kind of in charge of pushing that all forward, | 36:31 | |
Barbara Olshansky, is leaving to go to Stanford Law School | 36:33 | |
and become kind of the founder of their | 36:36 | |
International Human Rights Clinic. | 36:38 | |
You know, she'd been a lawyer | 36:41 | |
for a very long time at that point, | 36:42 | |
and I think, you know, was a little bit fried. | 36:44 | |
And it was interesting to see both her | 36:46 | |
and another one of my mentors, Nancy, | 36:48 | |
who had, I think, gotten their fill | 36:50 | |
of litigation after two decades. | 36:53 | |
And I'd never looked at them and thought, | 36:55 | |
that's a person who will stop, | 36:57 | |
but they both did. | 36:59 | |
So with the little bit of trepidation, thinking, | 37:02 | |
boy, I wonder what my expiration date is in this field, | 37:05 | |
I kind of took on the | 37:08 | |
sort of role of senior lawyer in the project. | 37:10 | |
Although, that was kind of a low point for the litigation. | 37:12 | |
I mean, there were many low points, right? | 37:16 | |
When we brought the cases, | 37:17 | |
we lost badly in the district court, | 37:20 | |
and even worse than the DC Circuit. | 37:21 | |
And then suddenly, the Supreme Court, out of the blue, | 37:23 | |
said they would review the case in December '03. | 37:27 | |
And the cases got argued , | 37:29 | |
and the government's military | 37:33 | |
started releasing people from Guantanamo | 37:34 | |
to kinda show the courts | 37:36 | |
that they could take care of this on their own. | 37:37 | |
You didn't need to intermeddle. | 37:39 | |
You know, let about 150 people out, | 37:40 | |
who told all these | 37:42 | |
almost fanciful seeming tales of torture. | 37:46 | |
They brought women into smear menstrual blood on us. | 37:49 | |
They brought prostitutes in | 37:51 | |
to smear menstrual blood on us, | 37:52 | |
so that we couldn't pray right? | 37:54 | |
But they were consistent with each other. | 37:55 | |
And then these cases all get argued. | 37:58 | |
A bunch of domestic enemy combatant cases get argued. | 38:00 | |
A Wednesday morning in one of those, | 38:04 | |
Justice Ginsburg asks Paul Clement, | 38:05 | |
who's a deputy Solicitor General, | 38:07 | |
eventually becomes the Solicitor General, | 38:09 | |
the person responsible for arguing cases | 38:11 | |
at the Supreme court for the Bush administration, | 38:13 | |
and she asked him, | 38:15 | |
"So can we just torture enemy combatants?" | 38:17 | |
"Can we kill them?" | 38:20 | |
And Clement says something along the lines of, | 38:21 | |
"It's not the policy of this administration to do that". | 38:23 | |
And it's a Wednesday morning. | 38:26 | |
And that evening, "60 Minutes II" breaks the story, | 38:27 | |
the Abu Ghraib photographs. | 38:30 | |
And you see that all these patterns of abuse | 38:32 | |
match what those first releasees from Guantanamo | 38:37 | |
had told the world about. | 38:42 | |
I think it goes with that kind of policy | 38:44 | |
of sweep and detain, right? | 38:46 | |
Everybody understands, that if, | 38:48 | |
after some terrorist attack | 38:49 | |
catches the government off-guard, | 38:51 | |
they sweep in a ton of people | 38:52 | |
with some profiling criteria, | 38:54 | |
they're gonna catch, | 38:55 | |
they're gonna create a lot of false positives, right? | 38:56 | |
And people who shouldn't have been brought in. | 38:58 | |
But I don't think what... | 39:02 | |
I think what eludes people, | 39:03 | |
is the thought of, what pressure that sort of methodology | 39:05 | |
puts on the interrogators | 39:10 | |
and on the the process in detention of weeding out | 39:11 | |
all those kind of false positives | 39:16 | |
from the people that you might actually | 39:20 | |
be looking for, right? | 39:21 | |
For every variety of reasons | 39:23 | |
there are tremendous amount of pressure | 39:24 | |
on the interrogation process | 39:26 | |
to produce "results", | 39:29 | |
and the abuses naturally kinda follow, | 39:32 | |
and you see that in Iraq, | 39:34 | |
where the insurgency caught us off-guard, | 39:36 | |
in terms of its size and scale. | 39:38 | |
I'm sorry, its scale and its intensity. | 39:41 | |
And they started sweeping everybody out of, | 39:44 | |
Sunni out of Shiite neighborhoods, and vice versa, and all, | 39:47 | |
trying desperately to deal with this unseen enemy. | 39:51 | |
Ditto for sweeping up and paying bounties for | 39:55 | |
anybody who was Arab and Afghanistan, you know? | 39:58 | |
And then, later, | 40:00 | |
anybody the Pakistanis turned over | 40:01 | |
as a similar sort of person, | 40:03 | |
a foreigner in Pakistan, right? | 40:04 | |
(Shayana coughs) | 40:06 | |
You end up getting more people detained in Pakistan, | 40:07 | |
because it's lucrative, than you do in Afghanistan, | 40:09 | |
where there are plenty of hungry villagers | 40:11 | |
and corrupt warlords willing to | 40:13 | |
sell people to the Americans. | 40:16 | |
And ditto domestically, right? | 40:18 | |
So it all was starting to come together | 40:20 | |
around the time of that Supreme Court win in 2004. | 40:23 | |
And after that, the lawyers started being able to go down | 40:26 | |
and exposing even more tales of abuse, | 40:30 | |
and getting the initial people, | 40:34 | |
whose families had authorized their lawsuits, | 40:35 | |
and therefore, we were allowed to meet with as lawyers. | 40:38 | |
Those people would point out | 40:42 | |
that other detainees had asked them to get them a lawyer. | 40:43 | |
And eventually, the courts recognize the legitimacy | 40:46 | |
of those authorizations, | 40:48 | |
and we started to see tons and tons of people at Guantanamo. | 40:49 | |
So what does Congress do in typical fashion? | 40:52 | |
It seeks to... | 40:54 | |
And the administration seeks | 40:55 | |
to reverse the Supreme Court's ruling. | 40:56 | |
First, with the Detainee Treatment Act at the end of 2005, | 40:58 | |
then with the Military Commissions Act at the end of 2006. | 41:01 | |
And a few weeks after the | 41:04 | |
Military Commissions Act has passed through Congress, | 41:05 | |
and purports to basically reverse the Rasul decision | 41:07 | |
to kick these cases out of federal court. | 41:11 | |
I take over for Barbara Olshansky. | 41:14 | |
So the government, at that point, said, | 41:17 | |
well, you have two lawyers with clearance. | 41:18 | |
You have Wells and Gita who were cleared already. | 41:20 | |
And not withstanding, | 41:22 | |
that you have 40, or 50, or however many clients | 41:22 | |
you wanna account. | 41:25 | |
You know, the center was involved with | 41:26 | |
pretty much every case, | 41:27 | |
either directly representing people, | 41:28 | |
or coordinating the work of the law firms, | 41:30 | |
and solo practitioners, and so forth on the cases, | 41:33 | |
on individual cases, right? | 41:36 | |
But the government said, | 41:38 | |
well, not withstanding that you have all this case load, | 41:39 | |
you've got two lawyers with clearance already, | 41:42 | |
and there's nothing to litigate anymore, | 41:44 | |
because the Military Commissions Act. | 41:45 | |
You're gonna get booted outta court in every case. | 41:47 | |
You don't have the right to set foot in court anymore. | 41:49 | |
Why do you need more people with clearances? | 41:51 | |
The situation persisted for | 41:53 | |
another year or so until- | 41:57 | |
- | Were you denied clearance | |
because of that? | 41:59 | |
- | Not denied clearance. | 42:00 |
They wouldn't process the clearance application. | 42:00 | |
They wouldn't take it. | 42:03 | |
They wouldn't send you down | 42:04 | |
to get your fingerprints taken | 42:05 | |
at the police office down at, | 42:06 | |
in Southern Manhattan. | 42:10 | |
They just wouldn't let you seek a clearance. | 42:12 | |
It's completely within their hands. | 42:15 | |
(Shayana coughs) | 42:16 | |
- | For this- | |
Nothing you can file? | 42:18 | |
- | Everything about the process | |
is at the | 42:20 | |
executive's discretion. | 42:21 | |
- | Discretion? | |
- | Including granting and maintaining a clearance. | 42:23 |
Peter | Was that the | 42:27 |
agreement with the- | 42:27 | |
- | I mean, it's ultimately | |
what the courts decide, right? | 42:30 | |
The courts are the ones that decide | 42:32 | |
it's okay for the government to require a clearance | 42:34 | |
to participate in these cases, to visit Guantanamo, | 42:36 | |
to review the classified information | 42:38 | |
that the government produces | 42:41 | |
in response to your habeas petition, | 42:42 | |
defending the detention, right? | 42:43 | |
And the courts also accept | 42:47 | |
that the government should have, essentially, | 42:49 | |
like carte blanche at making that call. | 42:51 | |
You know, there hasn't been a decision | 42:54 | |
that I've ever seen | 42:57 | |
that puts any limits on the government's discretion. | 42:58 | |
If they wanted to reject everybody with green eyes, | 43:03 | |
they could, (laughs) you know? | 43:05 | |
Well, although, I suppose something that arbitrary | 43:07 | |
would probably be the first case | 43:10 | |
where the ruling came out the other way. | 43:11 | |
Peter | (speaks indistinctly), I'm sorry to interrupt, | 43:15 |
but just so I understand, | 43:16 | |
as well as the audience, | 43:17 | |
this would be seen as an administrative decision, | 43:18 | |
and that gives the governments that much- | 43:20 | |
- | It's a national security matter, | 43:25 |
and I think the courts are very willing | 43:27 | |
to accept government | 43:28 | |
claims of expertise, | 43:30 | |
(interposing voices) | ||
and necessity, right? | 43:32 | |
- | So national security | |
didn't limit the number of lawyers | 43:34 | |
law offices- | 43:36 | |
- | Well, you know, the idea, | |
the idea of the classification process | 43:38 | |
is that things are classified, | 43:40 | |
because making them public would pose a risk | 43:42 | |
to national security, right? | 43:44 | |
And so if you accept that, | 43:45 | |
then the government should be in a position, | 43:47 | |
they would argue, to evaluate the risks, | 43:48 | |
that someone would intentionally, or through negligence, | 43:50 | |
end up leaking information that is classified, right? | 43:53 | |
Put to one side that most of the stuff | 43:56 | |
shouldn't be classified in the first place. | 43:58 | |
It's ridiculous to say that everything | 43:59 | |
a low-level cleared Yemeni has in his head, | 44:01 | |
that he tells you in a meeting at Guantanamo | 44:04 | |
should be presumed classified. | 44:05 | |
But those are the rules that the government insisted | 44:07 | |
that we lawyers operate under, | 44:09 | |
and people accepted it grudgingly | 44:12 | |
as being net net in the best interest of the clients, | 44:14 | |
in the clients- | 44:18 | |
- | So how did you | |
get the clearance? | 44:19 | |
- | So they finally agreed to process my clearance | 44:20 |
when we took on the case of one of the high-value detainees, | 44:22 | |
and not a habeas case, | 44:25 | |
but a case that was authorized | 44:26 | |
by the Detainee Treatment Act, | 44:29 | |
which said that you could challenge | 44:30 | |
the administrative determination | 44:31 | |
of a Combatant Status Review Tribunal, | 44:33 | |
these little military panels | 44:35 | |
that kinda rubber stamped | 44:36 | |
almost everybody's enemy combatant status. | 44:38 | |
You know, I think, what? | 44:40 | |
557 people were reviewed by these CSRTs | 44:41 | |
that they created after the Rasul decision. | 44:44 | |
You know, again, in order to produce this impression | 44:46 | |
that the military could take care of the problem. | 44:48 | |
They would provide little military panels, right? | 44:50 | |
And about 38 people got cleared, | 44:51 | |
were said to be not enemy combatant after that CSRT process. | 44:55 | |
So a couple trivial, | 45:00 | |
sort of trivial in number of cases | 45:02 | |
where people actually managed to | 45:04 | |
win some sort of change in status, | 45:09 | |
or status determination, that they should be released. | 45:12 | |
Everybody else rubber stamped into this category | 45:16 | |
of people who could be detained | 45:18 | |
until the end of the war against terrorism. | 45:19 | |
And in the DTA, the Detainee Treatment Act, | 45:23 | |
the act itself provided | 45:25 | |
that you could appeal those decisions | 45:27 | |
to the DC Circuit on very limited grounds. | 45:30 | |
So you'd go straight to the Court of Appeals, | 45:32 | |
and Courts of Appeals aren't used to | 45:34 | |
handling factual determinations. | 45:36 | |
You know, the district courts deal with the facts, | 45:39 | |
and make relatively final judgements | 45:40 | |
about which fact is to be believed from which party. | 45:42 | |
The Courts of Appeals just review legal issues. | 45:45 | |
And the idea of sending the appeal straight | 45:48 | |
from the CSRT's to the Court of Appeals was, | 45:49 | |
that the facts would be, | 45:52 | |
basically, left as the CSRT found them, | 45:53 | |
and that there would be | 45:56 | |
even less than usual sort of scrutiny | 45:57 | |
of that fact-finding process. | 45:59 | |
The court would review | 46:02 | |
whether or not the CSRT followed its own rules, | 46:03 | |
and those rules didn't allow for the detainee to kind of | 46:07 | |
produce his own evidence from outside. | 46:09 | |
Obviously, they didn't allow for outside counsel | 46:11 | |
to be involved, right? | 46:13 | |
So it was a ridiculous process, | 46:15 | |
but you were allowed to file it, | 46:16 | |
and the courts clearly had jurisdiction. | 46:18 | |
So we filed a CSRT. | 46:20 | |
Sorry, a Detainee Treatment Act challenge | 46:23 | |
to the CSRT determination for one of our guys, clients, | 46:25 | |
who had been in the CIA detention program, Majid Khan. | 46:27 | |
We hadn't seen him, | 46:30 | |
but he had family here in Baltimore, in the US, | 46:31 | |
who gave a next friend authorization | 46:33 | |
for the litigation to proceed. | 46:35 | |
And that was too big and complicated, basically, | 46:37 | |
for the government to get away with, | 46:40 | |
arguing that only two people | 46:41 | |
could handle it with clearances. | 46:43 | |
And so they allowed me to submit a clearance application | 46:45 | |
at the end of 2007. | 46:48 | |
And within sort of record time, four weeks or so, | 46:50 | |
I got my top secret security clearance, | 46:53 | |
and went down with Wells, I think, in February, '08, | 46:55 | |
for my first visit. | 46:59 | |
- | What was your | |
observation the first visit? | 47:00 | |
- | Well, the first visit was kinda crazy. | 47:02 |
So we were on the plane down on a Monday | 47:03 | |
when the 9/11 military charge came out, the first one, | 47:06 | |
and it named six defendants, | 47:10 | |
not the current five who are on trial, | 47:12 | |
and one of them was one of our clients, Mohammed al-Qahtani. | 47:14 | |
So he was charged with | 47:17 | |
a death penalty offense that Monday, | 47:19 | |
as we were flying down. | 47:21 | |
And that night, | 47:21 | |
we got to read this enormous | 47:22 | |
military commission, criminal complaint, | 47:25 | |
and then go in the next morning, | 47:28 | |
and kind of explain to him what had happened. | 47:29 | |
You'll know from reading | 47:33 | |
a "Washington Post" story earlier this year, | 47:34 | |
that he was suffering from | 47:36 | |
serious, serious psychiatric illness | 47:40 | |
from a long time before he was ever at Guantanamo, | 47:42 | |
from a long time before he was ever said to have had | 47:45 | |
any association with anybody | 47:47 | |
at any military training camp in Afghanistan, | 47:48 | |
or anybody associated with terrorism. | 47:50 | |
You know, pulled out of a dumpster in Mecca, | 47:54 | |
hospitalized with psychosis symptoms in 2000, | 47:57 | |
and then tortured horribly, | 48:04 | |
as detailed in a story that "Time" magazine published | 48:07 | |
with the actual classified torture log, | 48:10 | |
you know, in the first (coughs) | 48:15 | |
special interrogation plan, | 48:17 | |
first plan designed, basically, from Washington | 48:19 | |
to torture a detainee | 48:23 | |
who they thought had information | 48:25 | |
that he wasn't disclosing. | 48:29 | |
And this all to somebody who was suffering, | 48:31 | |
who was hospitalized for psychosis | 48:35 | |
just a few years earlier. | 48:38 | |
So that was my first meeting at Guantanamo. | 48:41 | |
- | What was your first | 48:44 |
- | So- | |
Peter | impression of Guantanamo? | 48:45 |
Did you know enough about it from the other attorneys, | 48:47 | |
or you were surprised at what you saw? | 48:49 | |
- | A little bit. | 48:52 |
This is what I tell everybody | 48:56 | |
who's going down there for the first time now. | 48:57 | |
I mean, I think my frame of reference | 48:58 | |
was other prison visits, right? | 49:00 | |
Prisons are not fun places to visit. | 49:02 | |
There's nothing terribly ordinary about them, | 49:05 | |
but there are certain things that kinda stand out stateside | 49:06 | |
when you go into a prison. | 49:10 | |
The correctional officers are | 49:11 | |
these enormous tattooed tough guys | 49:12 | |
who treat you with extraordinary deference. | 49:15 | |
Counselor, come this way, you know? | 49:17 | |
You're allowed to bring in tons of paperwork. | 49:20 | |
It's our stock and trade as lawyers. | 49:23 | |
But not an ounce of food or drink, right? | 49:24 | |
Just accept that as normal. | 49:27 | |
In Guantanamo, everything's upside down. | 49:28 | |
You're allowed to bring in | 49:30 | |
these little offerings of McDonald's french fries, | 49:31 | |
and all sorts of other stuff. | 49:33 | |
And the rules were briefly rolled back about a year ago, | 49:35 | |
but we've reverted back to the norm right now. | 49:37 | |
But it's symbolic in some way, | 49:42 | |
the impotence of lawyers to actually do anything | 49:43 | |
with the legal process in court. | 49:47 | |
You know, it's like, oh, you brought me this food, | 49:50 | |
but you can't do anything else | 49:51 | |
for me, right? | 49:53 | |
- | Do you pick that up? | |
Is that true? | 49:54 | |
- | What's that? | 49:55 |
- | What you're saying | |
is important for people to know. | 49:56 | |
Could you- | 49:59 | |
- | Oh, I mean- | |
Over the years, | 50:01 | |
I mean, plenty of detainees have observed without irony | 50:01 | |
that the lawyers are mostly good | 50:05 | |
for getting them material things, | 50:09 | |
because the court process is a bit of a joke. | 50:10 | |
I think the most kind of nicely put statement like this, | 50:13 | |
I believe, from one of the Uyghur detainees? | 50:19 | |
Although, I might be wrong about this. | 50:21 | |
Was something to the effect of, | 50:22 | |
I'm firing you, because they told me | 50:24 | |
that if I fire my lawyer I can have a blanket, | 50:26 | |
and a blanket is more useful to me here than you are, | 50:29 | |
because you can't do anything for me. | 50:32 | |
So yeah- | 50:34 | |
- | And just for the public | |
to understand why | 50:36 | |
detainees didn't think lawyers could help them? | 50:38 | |
- | I mean, well, they were right, all right? | 50:41 |
So I mean, in Rasul, | 50:42 | |
the Supreme Court in 2004 decided | 50:44 | |
that they had the right to set foot into the courtroom, | 50:46 | |
which meant that they had the right to get lawyers, | 50:48 | |
but all the lawyers could go and do | 50:49 | |
is really go down and talk and expose the stories of abuse, | 50:51 | |
because Congress rolled back that decision, | 50:54 | |
essentially, within two years. | 50:56 | |
And we spent another two years fighting out | 50:58 | |
the question of whether that rollback was constitutional. | 51:00 | |
The Supreme Court first declined to hear that case, | 51:03 | |
which I think shocked everybody, | 51:06 | |
but then changed its mind in the summer, | 51:08 | |
heard the case, and finally reversed it in 2008. | 51:10 | |
But after that, the Court of Appeals for the DC Circuit, | 51:13 | |
which hears all appeals from all Guantanamo cases, | 51:16 | |
'cause they're all filed | 51:19 | |
in the same district in Washington, DC, | 51:20 | |
basically made it impossible to win a case on the merits. | 51:22 | |
And the number, | 51:25 | |
the more influential DC Circuit judges openly said, | 51:26 | |
that the Supreme Court justices were fools | 51:29 | |
for opening up jurisdiction, | 51:31 | |
that they were like Tom and Daisy Buchanan | 51:33 | |
in "The Great Gatsby", | 51:35 | |
careless people, constantly breaking things, | 51:36 | |
and leaving others to clean up the mess. | 51:39 | |
The implication being, | 51:40 | |
the DC Circuit was there to clean up the mess, | 51:41 | |
and that the way they were gonna do that, | 51:43 | |
was basically create evidentiary rules | 51:45 | |
that made it so easy for the government to get in | 51:47 | |
any nonsensical garbage accounts of the facts, | 51:49 | |
including accounts by other detainees | 51:51 | |
who had been tortured, abused, had mental illness, | 51:54 | |
and had implicated hundreds of their fellow detainees | 51:57 | |
in order to get favors, that that kind of evidence | 51:59 | |
was gonna be trusted in court, basically. | 52:01 | |
And that's what we deal with now. | 52:03 | |
That's why nobody's actively litigating cases, really, | 52:04 | |
since about 2011, | 52:07 | |
with a couple of narrow sort of categorical exemptions. | 52:09 | |
Sorry, exceptions. | 52:14 | |
But yeah, there's really hardly any point right now | 52:16 | |
in trying to win a case on the merits in district court, | 52:18 | |
unless it's kind of | 52:23 | |
an unusual case. | 52:24 | |
- | What's your take on that, | |
as a lawyer (coughing drowns out Peter speaking) so long? | 52:26 | |
- | Well, I mean, at some level, | 52:28 |
the Supreme Court is supposed to be there | 52:30 | |
to break these kinda logjams, right? | 52:32 | |
To break through situations where the president | 52:33 | |
and Congress seemed to be kind of, | 52:36 | |
seemed to have every incentive to keep the status quo, | 52:39 | |
which is the case under Obama, | 52:41 | |
as much as it was under Bush. | 52:42 | |
You know, from Bush, | 52:44 | |
it was 'cause he was defending his practices for Obama. | 52:45 | |
It's because he apparently doesn't wanna spend | 52:46 | |
a ton of political capital. | 52:48 | |
A funny concept, that. | 52:50 | |
On fulfilling his campaign promise to close Guantanamo. | 52:53 | |
Even though both he and McCain agreed during the campaign | 52:55 | |
with President Bush himself, | 52:59 | |
that closing it would be in our national security interest, | 53:01 | |
because it makes us look so bad around the world, | 53:03 | |
that it loses us diplomatic sympathy, | 53:05 | |
sympathy on the Arab street, | 53:07 | |
that it inspires all sorts of hatred of the United States, | 53:09 | |
that groups like ISIS | 53:14 | |
dress people up in Guantanamo jumpsuits | 53:15 | |
while they're beheading folks, | 53:17 | |
because this is a way of appealing to people | 53:19 | |
that they wanna recruit to their cause, | 53:21 | |
both here and in the Arab world, right? | 53:23 | |
You know, all of these things, | 53:26 | |
all these great reasons to close a place, | 53:28 | |
all these reasons that make it | 53:32 | |
net international security interest to close a place, | 53:33 | |
even if you assume that there's some uncertainty about | 53:35 | |
who people are that are being released, | 53:38 | |
and yet, it doesn't happen, right? | 53:41 | |
So usually, the Supreme court. | 53:43 | |
Again, the courts are there to break through situations | 53:45 | |
where the political branches don't have any incentive | 53:47 | |
to respect the rights of individuals who are trapped | 53:50 | |
by this kind of political stalemate, | 53:53 | |
or these forces in electoral politics | 53:54 | |
that have a tendency to maintain the status quo. | 53:57 | |
But the Supreme Court is really the one that, | 54:00 | |
the only court in a position to break through that log jam | 54:05 | |
given the obsolesce of the DC Circuit. | 54:08 | |
You know, there have been | 54:11 | |
new judges appointed to the DC Circuit | 54:12 | |
in the last couple years. | 54:13 | |
It's a different circuit, | 54:14 | |
but their precedent has been laid down in 2010, 2011, | 54:15 | |
to the point where you really can't win a case. | 54:19 | |
And the court, the Supreme Court, | 54:21 | |
has declined to get involved again | 54:22 | |
for whatever reason. | 54:24 | |
(interposing voices) | ||
Peter | Any thought on why it is? | 54:25 |
- | You know, maybe they thought the Obama administration | 54:27 |
would eventually get around to dealing with it? | 54:29 | |
That's the only explanation that seems to make sense. | 54:34 | |
There are certainly justices who seem troubled | 54:37 | |
by what continues to go on. | 54:38 | |
I think the last one to issue a separate opinion | 54:40 | |
commenting on the denial of review, | 54:43 | |
the denial of certiorari, was Justice Breyer, | 54:46 | |
who pointed out a bunch of issues | 54:50 | |
that haven't been resolved | 54:51 | |
definitively by the courts, | 54:53 | |
including some things that go to kind of how long | 54:54 | |
people can continue to be detained. | 54:56 | |
And you're seeing some of those challenges | 54:58 | |
being brought now, you know? | 54:59 | |
But we're in a little bit of an end game period right now | 55:01 | |
at the end of the Obama administration, right? | 55:03 | |
I've seen some skeptical commentators say that, | 55:06 | |
the number of detainees that we'll arrive at in a few months | 55:09 | |
will probably be the number that, | 55:11 | |
strongest advocates of Guantanamo closure | 55:14 | |
may realistically expect that would have been left in 2010, | 55:16 | |
but we've still gotten there, | 55:19 | |
just very, very, very slowly. | 55:21 | |
A lot of the last progress being made | 55:23 | |
as the lame duck period approaches, | 55:26 | |
it remains to be seen. | 55:29 | |
Obama created this bureaucratic task force | 55:31 | |
at the beginning of his administration | 55:34 | |
to make the tough calls about who would be released | 55:35 | |
and who would be charged. | 55:38 | |
And he clearly outlined | 55:40 | |
in his first executive order on day two in office | 55:42 | |
that there would be a third group in the middle | 55:44 | |
who would essentially be stuck in the Guantanamo system | 55:46 | |
of being neither charged nor released, | 55:48 | |
until they decide it at some future point in time | 55:52 | |
what to do with them. | 55:53 | |
Well, the last couple years, | 55:55 | |
they've had a ton of these periodic review boards, | 55:56 | |
and they have gone through a lot of the cases | 55:58 | |
of people who maybe were tagged for | 56:00 | |
as prosecution candidates early on | 56:02 | |
by the task force in '09, | 56:04 | |
or tagged as indefinite detainees in '09, | 56:05 | |
and a lot of those people have been cleared. | 56:08 | |
And so I think we're getting closer to a situation | 56:10 | |
like what we advocated for on that second day in office, | 56:12 | |
which was the president's executive order is really a mess. | 56:15 | |
A year is too long to close Guantanamo. | 56:18 | |
What you really should do, | 56:20 | |
is get professional prosecutors in, | 56:21 | |
the federal prosecutors from all their various districts, | 56:23 | |
and have them look at the files, | 56:26 | |
and decide who should be charged, | 56:27 | |
and release everybody else. | 56:29 | |
That's where we're headed. | 56:30 | |
It's just that it's taken eight years. | 56:32 | |
Peter | Are we really headed there? | 56:35 |
What's gonna happen? | 56:36 | |
- | It depends on how low the numbers get, right? | 56:37 |
So right now, there are 61 people. | 56:39 | |
What's today's date? | 56:42 | |
October 2nd? | 56:43 | |
Yeah. | 56:44 | |
- | Yeah. | |
- | Oh, no, October. | 56:45 |
- | Yeah, it is. | |
- | October is (laughs)... | 56:46 |
Sorry. | 56:49 | |
October 2nd, right? | 56:50 | |
So 2016. | 56:51 | |
So we've got 61 detainees left. | 56:53 | |
20 are clear. | 56:55 | |
41 are left. | 56:57 | |
Nobody thinks 41 people are gonna be charged. | 56:57 | |
Even the task force doesn't | 56:59 | |
designate that many people for charge. | 57:01 | |
So I think the maximum number | 57:04 | |
that anybody really thinks realistically | 57:05 | |
would ever be charged, about 20, | 57:07 | |
and it might be quite a bit less than that, right? | 57:09 | |
Which means that, | 57:12 | |
there may be some people who remain categorized | 57:13 | |
for indefinite detention for a little bit longer, | 57:15 | |
but eventually, most of those people | 57:17 | |
are gonna be cleared at some point also, right? | 57:18 | |
Peter | Why do you believe that? | 57:21 |
- | Well, there's just no other way to do it, right? | 57:22 |
I mean, you're not gonna wanna... | 57:24 | |
Nobody will wanna hold on to people until they die. | 57:25 | |
I think every year that goes by, | 57:28 | |
there is an increased political cost, | 57:29 | |
in terms of what this looks like internationally, | 57:31 | |
what it looks like on the, quote/unquote, "Arab street". | 57:34 | |
It's just not something | 57:40 | |
any administration wants to get involved with. | 57:41 | |
And the Supreme Court is out there lurking. | 57:42 | |
You know, if we get a new Supreme Court, | 57:44 | |
if Scalia's seat gets filled by a democratic president, | 57:46 | |
one presumes that the willingness of the court | 57:50 | |
to take on some of these cases may change. | 57:53 | |
It may not. | 57:55 | |
I don't think Garland is particularly somebody | 57:56 | |
who would be great for us on these issues. | 57:58 | |
Sort of standard modern form judicial nominee, | 58:04 | |
someone whose primary, | 58:06 | |
pre-judicial experience was as a prosecutor. | 58:09 | |
Obama has named more former prosecutors to the bench | 58:12 | |
than any other president in history. | 58:14 | |
About 45% of his nominees. | 58:16 | |
But if President Clinton II | 58:19 | |
ends up naming the next justice, | 58:23 | |
and it's somebody different from that, | 58:26 | |
and outlook, and temperament, | 58:27 | |
maybe we'll see the court get involved. | 58:30 | |
And at at least the risk of that happening | 58:31 | |
as the years keep passing, | 58:33 | |
and people keep remaining in this limbo | 58:34 | |
with no real progress | 58:36 | |
towards any resolution for their individual cases, | 58:38 | |
there'll be increased pressure on any administration | 58:44 | |
to figure out something to do with them | 58:46 | |
that gets them out of Guantanamo. | 58:48 | |
(interposing voices) | 58:50 | |
The bottom line problem then becomes, | 58:52 | |
what to do about the prosecution cases, you know? | 58:54 | |
Right now, Obama seems willing to let some of these harder, | 58:57 | |
some of these more important cases | 59:00 | |
really remain in the military commissions, | 59:01 | |
where everybody expects that | 59:03 | |
it'll either take forever to have the trials, | 59:04 | |
or after the trials happen, | 59:06 | |
there'll be challenges that are successful on some ground | 59:08 | |
in federal court to the legitimacy of the proceedings, | 59:11 | |
and also, the number of people you can charge | 59:15 | |
is very limited, | 59:17 | |
because the favorite charges of prosecutors | 59:18 | |
in domestic terrorism cases, | 59:20 | |
material support, and in coed conspiracy, | 59:22 | |
are gonna be unavailable on legal grounds, | 59:25 | |
because they're not traditional war crimes. | 59:27 | |
The court seem inclined to find. | 59:30 | |
Although, the last nail is not in the coffin, | 59:32 | |
that you can't use those charges, | 59:34 | |
those the open-ended | 59:36 | |
favorite charges of prosecutors in terrorism cases, | 59:37 | |
against people in military commissions. | 59:40 | |
So if you wanna keep using only the military commissions | 59:42 | |
to charge the people | 59:44 | |
you're not gonna clear and release, | 59:45 | |
well, then you're gonna be stuck | 59:47 | |
with a much smaller subset of people, right? | 59:50 | |
If on the other hand, | 59:53 | |
Obama gets the numbers down | 59:53 | |
to some group that's small enough, | 59:55 | |
that maybe he decides to make the argument, | 59:56 | |
and it's a substantial one, | 1:00:01 | |
that certain aspects of the | 1:00:02 | |
congressional transfer restrictions | 1:00:03 | |
to the United States are unconstitutional, | 1:00:05 | |
because they trench on his executive authority, | 1:00:07 | |
particularly, his authority as prosecutor-in-chief, | 1:00:08 | |
because they don't leave him | 1:00:15 | |
a viable option to prosecute people | 1:00:16 | |
he wants to prosecute, | 1:00:17 | |
'cause the commissions aren't really a viable option. | 1:00:18 | |
Well, then maybe he'll pick up | 1:00:20 | |
that small remaining group of people who aren't cleared, | 1:00:22 | |
who aren't released in the next couple months, | 1:00:26 | |
and move 'em to the United States | 1:00:27 | |
where he can then charge them in federal court. | 1:00:28 | |
Peter | Do you believe he might do that | 1:00:31 |
before he leaves office? | 1:00:32 | |
- | It would be a stretch | 1:00:34 |
based on what we know about his temperament, | 1:00:35 | |
but it's a possibility, | 1:00:37 | |
and I think it's a greater... | 1:00:39 | |
There's greater incentive to do that | 1:00:41 | |
if Clinton is elected, | 1:00:44 | |
and he decides he doesn't wanna | 1:00:46 | |
leave this thorn in her side, | 1:00:47 | |
basically, this mess for her to clean up, as it were, | 1:00:49 | |
as he frequently says, left to him, so, | 1:00:52 | |
by the Bush administration. | 1:00:55 | |
- | Back in '09, when Obama | 1:00:57 |
(Shayana coughs) | ||
said he will close within one year, | 1:00:59 | |
did you think that would happen, | 1:01:02 | |
or do you think it would close | 1:01:03 | |
within the eight years of his tenure? | 1:01:04 | |
- | Well, I mean, the only way it was gonna happen | 1:01:07 |
is if they picked up a ton of people | 1:01:09 | |
and moved them to the United States. | 1:01:11 | |
So that certainly didn't seem like closure to us, you know? | 1:01:13 | |
Changing the area, the zip code, | 1:01:18 | |
or whatever phrase we like to use these days, | 1:01:19 | |
creating Guantanamo North. | 1:01:22 | |
But it was clear from that executive order | 1:01:24 | |
that there was a category of people | 1:01:26 | |
that they didn't wanna charge, | 1:01:27 | |
but wanted to continue to detain, | 1:01:28 | |
and that's basically people who are gonna remain | 1:01:29 | |
in a Guantanamo system, | 1:01:31 | |
albeit, in the mainland US, right?. | 1:01:33 | |
And by, what was that? | 1:01:36 | |
I guess, March of that year? | 1:01:38 | |
Or May? | 1:01:43 | |
I'm forgetting the month. | 1:01:44 | |
Precisely, I think it might've been May, | 1:01:45 | |
there was already kinda some sense | 1:01:47 | |
that the Republicans in Congress | 1:01:49 | |
were gonna try to make this a big issue, | 1:01:51 | |
and fight transfer to the United States, | 1:01:53 | |
at least for purposes of trial, | 1:01:55 | |
and that has kind of snowballed | 1:01:57 | |
into these broader congressional restrictions | 1:01:59 | |
on who can be transferred out of Guantanamo anywhere. | 1:02:02 | |
Which, itself, provides a convenient excuse | 1:02:05 | |
for the president to say that, | 1:02:08 | |
Congress has tied my hands, | 1:02:09 | |
but the reality is, | 1:02:10 | |
that if you go back and look at those | 1:02:11 | |
kind of initial murmurings from Congress, | 1:02:13 | |
I think, when maybe Mitch McConnell was saying that, | 1:02:16 | |
we don't want these terrorists here in the United States. | 1:02:19 | |
To try them here in New York or Eastern Virginia | 1:02:20 | |
would make those courthouses a target for terrorism, | 1:02:23 | |
make those cities a target for terrorism. | 1:02:26 | |
Harry Reid's first comment is, | 1:02:28 | |
"The Republicans need to get another talking point". | 1:02:30 | |
And then two weeks of silence from the White House follows. | 1:02:33 | |
It becomes clear to the Democrats in the Senate | 1:02:35 | |
that the White House isn't gonna protect them, | 1:02:37 | |
isn't going to use its political capital, | 1:02:39 | |
which Obama views as a limited store | 1:02:41 | |
that doesn't replenish itself | 1:02:43 | |
with political victories, right? | 1:02:44 | |
They're not gonna use it | 1:02:46 | |
on the issue of Guantanamo. | 1:02:47 | |
They're gonna use it on the bailout | 1:02:49 | |
and on healthcare, right? | 1:02:50 | |
And the Democrats decided to run for cover | 1:02:51 | |
after those two weeks. | 1:02:54 | |
And suddenly, Harry Reid's statements are, | 1:02:55 | |
"I don't want these terrorists | 1:02:57 | |
on the street in Nevada either", right? | 1:02:59 | |
As if they're gonna be running around on the street | 1:03:00 | |
either before or after trial. | 1:03:03 | |
You know, the ultimate cause of these transfer restrictions | 1:03:07 | |
is Obama's unwillingness to get out | 1:03:10 | |
and use the bully pulpit to defend the policy wisdom | 1:03:13 | |
of the idea that it's in our net national security interest | 1:03:15 | |
to close Guantanamo. | 1:03:19 | |
That we gain more by closing this symbol | 1:03:20 | |
of kind of injustice in our dealings around the world | 1:03:23 | |
than we do by keeping it open. | 1:03:27 | |
- | You think he | |
understands that? | 1:03:30 | |
- | Oh, I think everybody understands that. | 1:03:30 |
I think McConnell understands it too. | 1:03:32 | |
I don't doubt for a minute that everybody understands | 1:03:34 | |
that they're doing harm to the United States. | 1:03:36 | |
All you have to do | 1:03:38 | |
is see a still from one of these ISIS videos | 1:03:38 | |
to understand it. | 1:03:40 | |
It's like a slap in the face. | 1:03:41 | |
We called these various | 1:03:42 | |
kind of extensions of the transfer restrictions | 1:03:44 | |
the ISIS Recruitment Act around the office | 1:03:49 | |
every time one of them, a new one gets proposed, so. | 1:03:52 | |
Yeah, there's... | 1:03:56 | |
I don't think anyone is diluted about it. | 1:03:57 | |
I just don't think they care. | 1:03:59 | |
You know, it reminds me of what people who were, | 1:04:00 | |
habeas lawyers who were lobbying various | 1:04:02 | |
House and Senate offices around the, | 1:04:04 | |
to lobbying people to vote against the MCA were hearing. | 1:04:07 | |
You know, they would go into these meetings, | 1:04:10 | |
and they would tell people | 1:04:12 | |
about the stories of their clients, | 1:04:13 | |
how their guy was detained | 1:04:14 | |
only because he had a certain $5 Casio watch | 1:04:16 | |
that the government became convinced | 1:04:19 | |
was a bomb making device, right? | 1:04:20 | |
The same model my wife has, the F-91W. | 1:04:22 | |
Or some other ridiculous sort of examples. | 1:04:25 | |
The Uyghur stories. | 1:04:27 | |
I mean, you've cataloged all these. | 1:04:28 | |
You've talked to a lot of the guys, right? | 1:04:29 | |
And the staffers would nod their heads, | 1:04:31 | |
and either, you know, | 1:04:33 | |
basically would indicate that, really, | 1:04:36 | |
they understood that, | 1:04:39 | |
and it probably wasn't gonna matter. | 1:04:40 | |
And yeah, I recall people being sort of more down about | 1:04:42 | |
the political process | 1:04:46 | |
and the fate of our guys after the MCA passed | 1:04:49 | |
from having gone to all those meetings then | 1:04:54 | |
than at any other time, really, in this litigation. | 1:04:56 | |
It was a real low point in a lot of different ways. | 1:04:59 | |
Particularly, having had to go through those conversations | 1:05:01 | |
and realizing as you were going through them, | 1:05:04 | |
that it wasn't gonna make a difference. | 1:05:06 | |
Peter | And the detainees told you | 1:05:08 |
that they'd rather have a meal than have you represent them? | 1:05:09 | |
- | I never had anybody like that, because I, | 1:05:14 |
by the time I was going down in 2008, | 1:05:16 | |
the people who would come out | 1:05:17 | |
were the people who wanted lawyers, | 1:05:18 | |
and understood at some pretty deep level what the value was. | 1:05:20 | |
Different motivations for different guys. | 1:05:25 | |
But yeah, the people who might come out | 1:05:27 | |
for a meeting or two and then start to refuse, | 1:05:31 | |
they weren't really... | 1:05:32 | |
By that point, they were already... | 1:05:34 | |
It was already clear they weren't gonna come out | 1:05:35 | |
and meet with you. | 1:05:36 | |
We had a lot of refusals on those trips, | 1:05:37 | |
but I was lucky enough, I guess, | 1:05:39 | |
to come along at a later date and time. | 1:05:43 | |
I wasn't in there for a lot of these initial | 1:05:45 | |
kind of conversations that happened in '05, '06, '07 | 1:05:48 | |
about like, why should I trust you? | 1:05:51 | |
Why should I believe that you can do anything for me | 1:05:54 | |
when I have to put up with all this hardship | 1:05:56 | |
just to come meet with you, | 1:05:57 | |
when they put me in isolation for days before you come | 1:05:58 | |
in order to dissuade me from having a lawyer, | 1:06:02 | |
when they tell me flat out that I can get little benefits | 1:06:04 | |
for not having a lawyer? | 1:06:06 | |
Peter | So it sounds to me, | 1:06:10 |
like you're still somewhat, | 1:06:11 | |
if not optimistic, certainly, upbeat | 1:06:14 | |
over 15 years of this kind of work. | 1:06:16 | |
How do you explain that? | 1:06:19 | |
(Shayana groans and slurps) | 1:06:21 | |
- | What is the cause and effect? | 1:06:22 |
I mean, I'm still here, | 1:06:23 | |
and maybe I've convinced myself to be optimistic, | 1:06:24 | |
because I like being here and doing this work? | 1:06:26 | |
And maybe vice versa? | 1:06:32 | |
It becomes hard to know after a while, so. | 1:06:35 | |
Peter | Do you see... | 1:06:38 |
If there's still people in Guantanamo after Obama leaves | 1:06:40 | |
and Hillary becomes president, | 1:06:43 | |
do you see her closing it, | 1:06:45 | |
or do you think | 1:06:46 | |
it's just not on anyone's radar, really? | 1:06:47 | |
No one seems to care? | 1:06:49 | |
- | I think, you know, | |
the big step is to make that bold move | 1:06:51 | |
to bring people to the United States for trial. | 1:06:53 | |
Whether that happens with the acquiescence of Congress, | 1:06:55 | |
or in the face of resistance, | 1:06:58 | |
will decide how much political will that takes. | 1:07:01 | |
But look, Obama reaped an enormous amount of benefit | 1:07:04 | |
from having killed Bin Laden in 2011, right? | 1:07:09 | |
It took national security | 1:07:13 | |
kind of off the table against Romney, | 1:07:14 | |
who was running in the primaries in '08 | 1:07:16 | |
on the double Guantanamo promise, right? | 1:07:18 | |
He was the only one who was out there really saying | 1:07:20 | |
that he thought Guantanamo should be expanded, right? | 1:07:23 | |
You know, again, McCain and President Bush himself | 1:07:26 | |
agreed with the idea that it was an error, | 1:07:29 | |
national security interest to close the place, right? | 1:07:30 | |
So when you think about how much | 1:07:33 | |
political favor Obama got with the voting public | 1:07:36 | |
for having killed Bin Laden, | 1:07:39 | |
the guy who actually confessedly | 1:07:44 | |
had much more to do with the planning of the 9/11 attacks, | 1:07:47 | |
Khalid Sheikh Mohammed is sitting in a cell growing older, | 1:07:51 | |
because they're trying him in a military commission, so. | 1:07:54 | |
(interposing voices) | 1:07:58 | |
You know, to my mind, | ||
that creates a great political incentive | 1:07:59 | |
to bring somebody like that to the United States, | 1:08:01 | |
where they can actually be tried efficiently | 1:08:03 | |
and in a very draconian system, | 1:08:05 | |
that if the facts as the | 1:08:07 | |
government presents them are to be believed | 1:08:10 | |
will very quickly end up arriving | 1:08:12 | |
at a death sentence for these folks, | 1:08:16 | |
and a similar sort of | 1:08:20 | |
reaction among the voting public, probably. | 1:08:24 | |
You know, well, this president is the one | 1:08:25 | |
that managed to finally bring to justice | 1:08:27 | |
the actual perpetrators of the 9/11 attacks. | 1:08:31 | |
Peter | What about the four other prisoners | 1:08:34 |
who won't be persecuted? | 1:08:36 | |
(Shayana coughs) | 1:08:37 | |
- | Again I- | 1:08:38 |
(interposing voices) | ||
Yeah. | 1:08:39 | |
- | Where will they go? | |
- | I just don't think that's sustainable. | 1:08:40 |
I think, eventually, those... | 1:08:41 | |
I think those people aren't really indef, | 1:08:43 | |
tagged for indefinite detention. | 1:08:45 | |
They are awaiting clearance, as we like to say now. | 1:08:46 | |
People who are designated by the task force in that category | 1:08:51 | |
are clearly not gonna be prosecuted, | 1:08:53 | |
whether it's in a commission or stateside. | 1:08:55 | |
They've all been in prison for 15 years anyway, right? | 1:08:58 | |
So that, itself, would be a max sentence | 1:09:00 | |
on a count of material support domestically, | 1:09:03 | |
at least where the support did not lead | 1:09:06 | |
to the death of anyone. | 1:09:09 | |
Yeah, it's... | 1:09:13 | |
You know, I think that those cases are just... | 1:09:16 | |
You know, they will get sorted out. | 1:09:18 | |
It's just kind of a question | 1:09:19 | |
of how long it will take and of political will, so. | 1:09:20 | |
Peter | So is there something I didn't ask you | 1:09:24 |
that you, when you came here, | 1:09:27 | |
you were thinking you'd like to talk about that, | 1:09:28 | |
you know, for history? | 1:09:32 | |
'Cause this is... | 1:09:33 | |
'Cause really, 50 years from now, | 1:09:33 | |
I think, people will be more interested | 1:09:35 | |
in the interview | 1:09:36 | |
- | No. | |
Peter | than probably today. | 1:09:38 |
- | Well, I'm sure there probably is. | 1:09:39 |
I'm not- | 1:09:43 | |
- | Could you- | |
Well, I'll throw this on, | 1:09:45 | |
just because I think you and I both don't think | 1:09:47 | |
Trump will win the presidency. | 1:09:50 | |
But he's claimed he'd send Americans to Guantanamo, | 1:09:52 | |
if he became president. | 1:09:55 | |
It might be a throw away phrase. | 1:09:56 | |
But do you have any thoughts about | 1:09:58 | |
Guantanamo continuing, | 1:10:00 | |
- | Yeah, they should- | |
Peter | and kind of what you presented, | 1:10:01 |
that the rest of the world looks at Guantanamo | 1:10:04 | |
very differently from us? | 1:10:07 | |
What makes you think that Americans really care to close it? | 1:10:08 | |
- | Right. | 1:10:12 |
Well, look, I don't think anybody is talking about | 1:10:14 | |
bringing back the various sort of | 1:10:16 | |
abusive interrogation practices down there, even Trump. | 1:10:18 | |
So to the extent that there is a big chunk | 1:10:23 | |
of the voting public that either thinks that | 1:10:26 | |
torture and other abusive treatment are | 1:10:30 | |
justified as a form of punishment for folks | 1:10:34 | |
that they presume to be guilty | 1:10:36 | |
of some form of hostility to the US, | 1:10:38 | |
or whether they think it's effective | 1:10:42 | |
in getting information out, | 1:10:43 | |
I mean, neither... | 1:10:45 | |
I mean, the latter is not factually true | 1:10:48 | |
in any sense or form, right? | 1:10:50 | |
So it's hard to imagine all that coming back, | 1:10:52 | |
and that, to some extent, | 1:10:54 | |
I think kinda lurks out there | 1:10:56 | |
as justification for the existence of Guantanamo | 1:10:57 | |
among people who would like to see it remain open | 1:11:01 | |
for the group of people who are there now. | 1:11:03 | |
Does that make sense? | 1:11:05 | |
- | Yeah. | |
- | Yeah. | 1:11:06 |
And honestly, no quicker way | 1:11:09 | |
to get the Supreme Court involved. | 1:11:11 | |
Eventually, in these case, | 1:11:12 | |
it might take two years | 1:11:14 | |
than having a US citizen down there. | 1:11:15 | |
I mean, Yaser Hamdi, | 1:11:16 | |
who was held in South Carolina as an enemy combatant | 1:11:18 | |
until, basically, shortly after the Supreme Court | 1:11:20 | |
got ahold of his case, | 1:11:22 | |
he was at Guantanamo for a very brief period of time, | 1:11:23 | |
supposedly, until they figured out that he was a US citizen. | 1:11:26 | |
Although, it seems pretty clear that they knew he was, | 1:11:28 | |
and didn't necessarily care, | 1:11:31 | |
because by blood, he was a Saudi, | 1:11:32 | |
but he was born in Louisiana, and there wasn't... | 1:11:36 | |
It was pretty open and shut, the legal issue, | 1:11:39 | |
but they they moved him | 1:11:41 | |
because they knew that that was one of the | 1:11:42 | |
easiest cases to argue, | 1:11:44 | |
in terms of asserting federal court jurisdiction | 1:11:47 | |
over a place that wasn't one of the, | 1:11:50 | |
within the 50 states. | 1:11:52 | |
Peter | I have to say, | 1:11:54 |
on camera, I appreciate what you're saying, | 1:11:55 | |
because I haven't heard many people | 1:11:57 | |
honestly believe that (speaks indistinctly) | 1:12:00 | |
would get back involved, | 1:12:01 | |
and then that something will happen | 1:12:03 | |
with Guantanamo moving. | 1:12:07 | |
A lot of people have just given up, | 1:12:09 | |
just because most Americans don't seem to care | 1:12:11 | |
much about what happens. | 1:12:13 | |
- | Yeah. | |
Most Americans don't and most foreigners do, | 1:12:15 | |
which is interesting | 1:12:18 | |
that they follow America's | 1:12:18 | |
kind of detention practices so closely. | 1:12:21 | |
But the Supreme Court justices | 1:12:24 | |
all travel the world now, you know? | 1:12:25 | |
Picture of Ruth Bader Ginsburg next to Antonin Scalia | 1:12:28 | |
on the backs of two elephants in India, right? | 1:12:31 | |
I mean, they go around, | 1:12:34 | |
and they take the amount of heat that you would expect. | 1:12:35 | |
So this is a good thing from our perspective, | 1:12:37 | |
that they view themselves as kind of, in a way, | 1:12:41 | |
sort of leading scholars of constitutionalism | 1:12:44 | |
out to spread the gospel | 1:12:49 | |
of the benefits of independent judicial review | 1:12:51 | |
to all these countries | 1:12:54 | |
where that system may only be 25-years-old, | 1:12:55 | |
if it's post-communism, | 1:12:58 | |
or much newer, if it's kind of a | 1:12:59 | |
fledgling sort of democracy, | 1:13:02 | |
in terms of the genuine kinda strength | 1:13:06 | |
of separation of powers, | 1:13:09 | |
which is the case in all sorts of countries, right? | 1:13:11 | |
So yeah, they may be more sensitive | 1:13:14 | |
to the international pressure | 1:13:17 | |
than the president or Congress. | 1:13:18 | |
Peter | While you were talking, I was thinking, | 1:13:24 |
now that Michael Ratner has passed, will CCR change? | 1:13:25 | |
Do you see... | 1:13:29 | |
So for people who don't really know what CCR is now, | 1:13:33 | |
they might not know what CCR is at all, | 1:13:36 | |
can you give us a little bit of an understanding | 1:13:39 | |
of what Michael Ratner and CCR has done, | 1:13:43 | |
and where you see it moving towards? | 1:13:46 | |
- | Oh, sure. | 1:13:49 |
Well, I mean, Michael was one of the | 1:13:50 | |
leading human rights lawyers of his generation, | 1:13:53 | |
and was involved in the first Guantanamo case, and this one, | 1:13:54 | |
and a whole bunch of other important stuff in between, | 1:13:56 | |
including lots of cases that nobody else wanted to take on. | 1:13:59 | |
One of the smartest people I've ever worked with. | 1:14:01 | |
And also, the ratio of kind of humility to smarts | 1:14:04 | |
was probably the highest that I've ever seen. | 1:14:08 | |
A wonderful person. | 1:14:10 | |
And I was really sad to be at Guantanamo | 1:14:11 | |
when he passed away, | 1:14:13 | |
and also, down there doing some of these | 1:14:14 | |
periodic review board hearings | 1:14:17 | |
in the spring and summer when his | 1:14:18 | |
memorial service was held here. | 1:14:20 | |
But in terms of CCR and Michael's philosophy, | 1:14:23 | |
he was a classic CCR lawyer. | 1:14:27 | |
I mean, CCR was founded in the '60s | 1:14:29 | |
when the ACLU was an 800 pound gorilla | 1:14:32 | |
of the sort of civil liberties field, | 1:14:34 | |
and the NAACP was one of the | 1:14:36 | |
kind of models of success with Brown and all the others | 1:14:37 | |
who were stepwise litigation. | 1:14:40 | |
Their model was choose your perfect plaintiff, | 1:14:41 | |
find out where the law can be advanced one little step, | 1:14:44 | |
and zero in on it, | 1:14:46 | |
and surgically bring a case to advance the law | 1:14:48 | |
step-by-step, by step, by step. | 1:14:51 | |
And CCR was kind of born | 1:14:53 | |
in the kind of political ferment | 1:14:55 | |
of the civil rights sort of movement | 1:14:57 | |
led by activists on the ground in the Deep South, | 1:15:01 | |
and their philosophy was a little different. | 1:15:03 | |
It was, we're gonna use litigation | 1:15:05 | |
as a means means of empowering activists, | 1:15:08 | |
either by generating media | 1:15:13 | |
and public attention to their cause | 1:15:15 | |
by bringing cases that may or may not win, | 1:15:16 | |
that may or may not be surgically designed | 1:15:18 | |
to advance the law, | 1:15:20 | |
that may be a generation ahead of their time, | 1:15:21 | |
but we'll do something, | 1:15:24 | |
either in terms of bringing media attention, | 1:15:25 | |
or encouraging activists, | 1:15:26 | |
getting people out, | 1:15:28 | |
just letting people know | 1:15:30 | |
that they have lawyers at their back, | 1:15:30 | |
in terms of some of these cases that | 1:15:33 | |
he tried to use the federal courts | 1:15:35 | |
to short circuit state criminal prosecutions | 1:15:36 | |
directed at activists, | 1:15:39 | |
which was considered an outrageous idea, | 1:15:40 | |
but for a brief window of time, | 1:15:42 | |
we actually won the right to do that from the Supreme Court. | 1:15:43 | |
So it was a different model, right? | 1:15:48 | |
That wasn't predicated on victory. | 1:15:49 | |
It was sort of Jules Lobel's book puts it, | 1:15:51 | |
the current president of the board of CCR | 1:15:53 | |
was aiming at success without victory in the courts. | 1:15:55 | |
Some detractors would probably characterize this | 1:16:01 | |
as a rabble-rousing sort of approach to litigation, | 1:16:03 | |
but it makes sense in an era where, | 1:16:05 | |
like as with most of American history, | 1:16:08 | |
we have a very, very conservative | 1:16:09 | |
pro status quo Supreme Court. | 1:16:11 | |
Will that model be the best model in the world, | 1:16:14 | |
the best conceivable model | 1:16:17 | |
if we have five votes on our side of the fence | 1:16:18 | |
on a whole bunch of issues? | 1:16:22 | |
You know, maybe not. | 1:16:24 | |
Will the center turn its focus to a different area? | 1:16:28 | |
I mean, maybe. | 1:16:32 | |
It has over the years. | 1:16:33 | |
I mean, in the '60s it was | 1:16:34 | |
your conventional Deep South civil rights work, | 1:16:35 | |
movement support work for activists. | 1:16:38 | |
In the '80s, very, very international law focused. | 1:16:41 | |
You know, CCR lawyers were the ones | 1:16:44 | |
who kind of discovered the | 1:16:46 | |
long forgotten Alien Tort Statute, | 1:16:47 | |
which allows you to sue in federal court | 1:16:49 | |
for violations of international law, | 1:16:52 | |
fundamental international law, | 1:16:54 | |
wherever they happened around the world. | 1:16:55 | |
And so we were best known for that, | 1:16:58 | |
I think, from about 1980 on through 9/11. | 1:17:00 | |
And then after 9/11, | 1:17:04 | |
we've probably been best known for all our | 1:17:04 | |
national security kind of war on terror work. | 1:17:07 | |
But we had huge victories in the stop-and-frisk case, | 1:17:11 | |
which I think has kind of, | 1:17:14 | |
because body cams are a sort of a central aspect | 1:17:17 | |
that has been widely discussed, | 1:17:20 | |
in terms of the remedy for that kind of, | 1:17:22 | |
the remedy for that massive program of, | 1:17:27 | |
essentially, suspicionless stops, | 1:17:29 | |
profiling stops by the New York City Police Department. | 1:17:31 | |
That's also kind of, I think, | 1:17:36 | |
put us in a nice position | 1:17:37 | |
to try to help the organizers | 1:17:41 | |
of various Black Lives Matter-type-movements. | 1:17:44 | |
You know, get closer to their goals. | 1:17:47 | |
Will this naturally become an area of focus? | 1:17:50 | |
Maybe, you know? | 1:17:52 | |
You know, it's sad to think that | 1:17:55 | |
part of the effect of Michael's passing away at this time | 1:18:00 | |
may also be that there's less, | 1:18:06 | |
that people associate the center less | 1:18:10 | |
with doing national security litigation | 1:18:12 | |
and international work, | 1:18:16 | |
which I suppose Guantanamo | 1:18:17 | |
kind of also falls within that rubric. | 1:18:19 | |
I hope it doesn't happen, but you know? | 1:18:22 | |
Peter | Well, one more question, | 1:18:24 |
unless you have something else to add. | 1:18:26 | |
Do you see yourself continuing TCI | 1:18:28 | |
since you kinda fell into it, | 1:18:30 | |
as you said at the beginning, | 1:18:31 | |
back 15 years ago? | 1:18:33 | |
- | Yeah. | |
Mm-hmm. | 1:18:34 | |
- | And obviously, | |
you've been inspired by it, | 1:18:36 | |
and you have an inspiring. | 1:18:37 | |
So do you see... | 1:18:39 | |
Where do you see yourself going? | 1:18:40 | |
- | Oh, I don't know. | 1:18:42 |
I think it depends a lot on | 1:18:43 | |
what new issues come over the horizon. | 1:18:44 | |
One of the great things | 1:18:49 | |
about working at this place has been, | 1:18:49 | |
you wake up every morning | 1:18:51 | |
and you don't know what's gonna hit you, (laughs), you know? | 1:18:52 | |
From Snowden, to all the way back | 1:18:57 | |
to all these post-9/11. | 1:18:59 | |
(interposing voices) | ||
We had all sorts of involvement with surveillance issues, | 1:19:01 | |
so we'll just leave it at that. | 1:19:05 | |
Yeah, it's a great thing to not really know | 1:19:10 | |
what your case load might be next year, | 1:19:14 | |
but by the same token, you get older. | 1:19:17 | |
You know, I have a kid now, and a mortgage, | 1:19:21 | |
and I think, I am no longer capable, | 1:19:25 | |
either by temperament or just life circumstances, | 1:19:30 | |
to work the same hours that I used to. | 1:19:35 | |
You gain experience, | 1:19:40 | |
and that's really valuable at some level. | 1:19:41 | |
But at some point, the lines crisscross, | 1:19:43 | |
the gaining of experience gets overwhelmed | 1:19:45 | |
by the decline in hours, | 1:19:48 | |
and you start to wonder whether it's better | 1:19:51 | |
for some sort of fresh face to be in your chair | 1:19:52 | |
moving the work of the center forward. | 1:19:59 | |
It's not a bad thing. | 1:20:00 | |
I actually... | 1:20:01 | |
My advice to young lawyers often | 1:20:03 | |
is some variant on | 1:20:05 | |
seize opportunities as they come up to you, | 1:20:07 | |
because that's probably the story of my legal career. | 1:20:10 | |
I also think it's not a bad thing that... | 1:20:15 | |
I think it would not be a bad thing | 1:20:18 | |
if people moved more between the for-profit | 1:20:20 | |
and the nonprofit sides of the legal field. | 1:20:22 | |
And it happened a lot with Guantanamo, | 1:20:27 | |
'cause a lot of people were motivated to leave | 1:20:30 | |
for nonprofits from working on these cases at law firms. | 1:20:31 | |
You've talked to a bunch of them. | 1:20:35 | |
But it doesn't happen all that often. | 1:20:38 | |
I think the legal left in the nonprofit world | 1:20:39 | |
tends to be a little bit insular, | 1:20:45 | |
and distrustful of people's motivations | 1:20:47 | |
who come from the outside, | 1:20:49 | |
and also wants to reward, | 1:20:51 | |
because there are so few jobs. | 1:20:53 | |
Wants to reward people who have shown | 1:20:55 | |
kinda consistent commitment since day one. | 1:20:56 | |
And that limits the type of person who comes in, | 1:20:58 | |
just in kind of the broad diversity kind of, | 1:21:02 | |
sort of aspects of who ends up in the field. | 1:21:05 | |
(Shayana coughs) | 1:21:09 | |
Also, a little bit affects the... | 1:21:10 | |
Well, not a little bit, a lot. | 1:21:12 | |
Affects the kind of, | 1:21:13 | |
the technical skills that people bring in, you know? | 1:21:14 | |
Because people only have certain types of backgrounds | 1:21:20 | |
before they get to these kinds of impact litigation jobs. | 1:21:23 | |
So I think those are all bad things, | 1:21:27 | |
but maybe those things will be natural, | 1:21:30 | |
they'll be natural solutions to those | 1:21:33 | |
sort of cultural problems | 1:21:36 | |
if there are more litigation jobs on the left. | 1:21:37 | |
And there, it is certainly, | 1:21:40 | |
my little area of national security litigation, | 1:21:42 | |
it's certainly been a growth industry in the last 15 years. | 1:21:45 | |
Peter | Unfortunately. | 1:21:48 |
Well, there's something... | 1:21:51 | |
So I'll ask you one more time. | 1:21:52 | |
Shane, is this something that I didn't ask you | 1:21:53 | |
that you thought of as you came here that, | 1:21:55 | |
well, perhaps, in the last few days, | 1:21:58 | |
that you thought you'd like to share? | 1:21:59 | |
- | I think we've covered a lot of it. | 1:22:02 |
Yeah, so. | 1:22:03 | |
- | We certainly did. | |
And we need 20 seconds of our room tone | 1:22:05 | |
- | Oh, great. | 1:22:08 |
- | before we can | |
turn off the mic. | 1:22:09 | |
So if you feel done, | 1:22:10 | |
then we'll ask | 1:22:11 | |
- | Sure. | |
Peter | Johnny to do that. | 1:22:12 |
Okay, Johnny. | 1:22:13 | |
Johnny | Okay, so we just sit here quietly for a minute, | 1:22:14 |
or for 20 seconds, to get room tone. | 1:22:16 | |
Okay. | 1:22:36 |
Item Info
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