Kadidal, Shayana - Interview master file / Witness to Guantanamo / Duke Digital Repository

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Yeah, Yeah.

0:05

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Okay.

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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

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Okay, okay.

John, John?

0:12

John, are you ready?

0:13

(Shayana coughs)

Peter

Okay, good evening.

0:14

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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

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Great.

1:10

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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

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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

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Well, actually,

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because I'm 48, so.

1:40

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that was the last question.

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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

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Sure.

1:46

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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

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Wow.

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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

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So were you affected-

(coughing drowns out Peter speaking)

9:12

Participated in that?

9:13

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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

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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

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Was he in your class?

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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

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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

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The question is,

is he the person who actually

13:35

informed the administration of Guantanamo?

13:37

(Peter speaks indistinctly)

13:39

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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-

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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

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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

Kadidal, Shayana - Interview master file

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