Frakt, David - Interview master file
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Interviewer | No, I'm not so much interested | 0:07 |
in the details of the cases 'cause I'm more interested | 0:09 | |
in your participation in kind of like how you saw things. | 0:13 | |
And I mean, you're obviously very articulate | 0:16 | |
and very vocal that's clear, | 0:18 | |
but so that is... | 0:20 | |
Camera man | Camera rolling. | 0:21 |
Interviewer | Okay, good morning. | 0:23 |
- | Good morning. | 0:24 |
Interviewer | We are very grateful to you | 0:25 |
for participating in the Witness to Guantanamo Project. | 0:27 | |
We invite you to speak of your experiences, | 0:31 | |
representing Guantanamo Bay detainees, | 0:34 | |
and your involvement in the legal issues | 0:37 | |
regarding Guantanamo Bay, Cuba. | 0:39 | |
We hoping to provide you with an opportunity | 0:42 | |
to tell your story in your own words. | 0:44 | |
We are creating an archive of stories | 0:47 | |
so that people in America and around the world, | 0:49 | |
will have a better understanding of what you | 0:53 | |
and others have experienced and contributed. | 0:55 | |
Future generations must know what happened, | 0:58 | |
and by telling your story, you're contributing to history. | 1:01 | |
We appreciate your courage and willingness to speak with us. | 1:05 | |
If at any time during the interview | 1:09 | |
you would like to take a break, just let us know. | 1:11 | |
And if any thing you say you would like to retract, | 1:13 | |
just let us know and we can retract it. | 1:16 | |
- | All right | 1:18 |
Interviewer | Thank you. | |
So I'd like to begin | 1:19 | |
with just some basic information, like your name, | 1:20 | |
and some background, your hometown, | 1:23 | |
your age, family. | 1:27 | |
- | Sure. | 1:30 |
Interviewer | Okay. | |
- | Okay, my name is David Frakt. | 1:31 |
I'm a Law Professor | 1:34 | |
currently at Western State University College Of Law | 1:37 | |
in Fullerton, California. | 1:40 | |
I'm also a Lieutenant Colonel | 1:42 | |
in the United States Air Force JAG Corps Reserve. | 1:45 | |
I was born in Philadelphia, Pennsylvania. | 1:50 | |
I'm 40 years old now, | 1:53 | |
moved around a lot, my parents were professors, | 1:56 | |
itinerant professors. | 1:59 | |
And after I graduated from Harvard Law School in 1994, | 2:01 | |
I made a very unusual career decision, | 2:07 | |
which was to join the JAG Corps and to volunteer, | 2:11 | |
to serve in the Air Force. | 2:15 | |
And I clerked for a federal judge for a year. | 2:16 | |
And then I entered the Air Force on active duty | 2:20 | |
in September, 1995. | 2:22 | |
And I was on active duty for about 10 years. | 2:25 | |
And then I switched into academia | 2:30 | |
and went into the reserves in 2005, partly, | 2:35 | |
so I could have a chance to settle down and start a family, | 2:41 | |
and I've done that now I'm married, | 2:44 | |
I have two small boys, one of which I fathered | 2:45 | |
on a return trip from Guantanamo Bay. | 2:52 | |
So it was a final time for me. | 2:56 | |
How I got involved in this whole thing was in... | 3:03 | |
Well first of all, I should back up a little bit to 9/11. | 3:10 | |
'Cause that's really what started this whole thing. | 3:15 | |
I was at Pacific Air Forces Headquarters | 3:18 | |
in Hawaii, Honolulu Hawaii Hickam Air Force Base. | 3:22 | |
I was assigned there when 9/11 happened. | 3:25 | |
And like other people in the military, | 3:32 | |
I was very motivated to play my part | 3:36 | |
in seeking revenge or retribution against | 3:43 | |
these perpetrators of this horrible crime. | 3:48 | |
And indeed when it was announced initially that | 3:53 | |
the perpetrators of 9/11 would be tried | 4:00 | |
by military tribunal. | 4:03 | |
I volunteered to be a prosecutor for that. | 4:05 | |
And President Bush at the time said | 4:09 | |
there would be fall, fair trials. | 4:11 | |
And we took him at his word at the time. | 4:15 | |
And the military, the JAGs felt proud | 4:20 | |
that we were being selected to handle this, | 4:25 | |
very high profile and important duty. | 4:28 | |
And so I actually re-enlisted, | 4:33 | |
officers don't actually re-enlist, | 4:37 | |
but I signed up for another three-year. | 4:38 | |
My activity commitment was expiring but I said, | 4:41 | |
well, where countries going to war, | 4:45 | |
and this is what I've trained for and I'm ready. | 4:48 | |
So I signed up for three more years. | 4:50 | |
Interviewer | This to 9/11 or- | 4:52 |
- | Right after 9/11, 2001. | 4:54 |
But as the war started to progress, | 4:58 | |
there were very troubling things that were happening, | 5:02 | |
troubling to me as an attorney, as a JAG officer. | 5:07 | |
And one of those things that was very disturbing | 5:13 | |
was the decision not to apply | 5:17 | |
the Geneva Conventions to anyone, | 5:20 | |
basically the Bush administration perspective | 5:24 | |
was that no one was a lawful combatant | 5:29 | |
on the other side of this war, no one was entitled | 5:33 | |
to even Common Article 3 of the Geneva Convention. | 5:36 | |
It was an unfathomable position for me as a JAG | 5:40 | |
as a professional in the profession of arms. | 5:46 | |
And as someone who trained people in the law of war, | 5:50 | |
who trained the Geneva Conventions. | 5:53 | |
I mean this is part of the responsibility of the JAG. | 5:55 | |
So it was very suspicious. | 5:59 | |
Why are we not doing this? | 6:02 | |
I mean, even if we didn't have to, | 6:06 | |
it had been department of defense policy | 6:09 | |
that we always would apply the law of armed conflict, | 6:11 | |
in any military operation. | 6:14 | |
However that military operation was characterized, | 6:17 | |
whether it was a full-scale war or something else. | 6:19 | |
So to renege on that, it was just troubling. | 6:22 | |
And it was another thing that particular event | 6:27 | |
that had gotten me questioning what was going on | 6:32 | |
with the administration. | 6:35 | |
When I was at PACAF, Pacific Air Force Headquarters, | 6:38 | |
we were asked to, | 6:43 | |
it was in a very early stages of the Afghan conflict | 6:45 | |
and we had invaded | 6:49 | |
and right away we started capturing people. | 6:51 | |
And we're like, "What are we gonna do with these people?" | 6:53 | |
So we were asked to survey | 6:58 | |
the air force installations in the Pacific, | 7:03 | |
to determine if there was a site that was suitable | 7:07 | |
for a potential prisoner of war camp. | 7:10 | |
And we looked at what we had, | 7:13 | |
and there was one base that was ideal. | 7:17 | |
And it was Anderson Air Force Base at Guam. | 7:20 | |
Guam is very isolated, it's in the middle | 7:24 | |
of the Pacific ocean, very far from anything. | 7:27 | |
So it was very safe from that perspective. | 7:29 | |
It also was fairly close to the Theater of War | 7:32 | |
at least compared to the mainland of U.S. | 7:35 | |
It was about a seven or eight hour flight there | 7:39 | |
very manageable. | 7:42 | |
And they had the infrastructure, | 7:43 | |
it was very large, they had a huge airfield | 7:45 | |
that could accommodate all kinds of aircraft. | 7:48 | |
They had previously hosted a sort of refugee camp there | 7:50 | |
for I think it was Vietnamese refugees | 7:56 | |
or something like that. | 8:00 | |
So they had already infrastructure | 8:01 | |
that could quickly be built up into a POW camp | 8:05 | |
or what we had envisioned as a POW camp. | 8:08 | |
So we forward that information to the Pentagon, | 8:10 | |
so this, that here would be a good place. | 8:13 | |
And we were told later | 8:17 | |
that Guantanamo Bay Cuba had been selected instead, | 8:21 | |
and one of the reasons that was offered, | 8:26 | |
why Guan was rejected, | 8:30 | |
was that Guam was U.S. territory | 8:33 | |
and there was a federal courthouse there. | 8:37 | |
And that was clear that whoever was pulling the strings | 8:40 | |
in Washington, they did not want these prisoners | 8:46 | |
to have any potential to reach a court, | 8:50 | |
any potential for access lawyers. | 8:53 | |
And that was very, very troubling, | 8:55 | |
like what are they doing to these people? | 8:58 | |
What are they planning on doing to these people | 8:59 | |
that they're worried about | 9:01 | |
the fact that there's a courthouse there? | 9:02 | |
So, and there were some claim of bogus security concerns, | 9:05 | |
where the people of Guam would be worried, | 9:09 | |
but that was nonsense. | 9:11 | |
You know, the idea that we couldn't have | 9:13 | |
a secure prison camp inside a large military installation | 9:15 | |
was silly. | 9:20 | |
So as the war progressed, | 9:23 | |
and then we started another war in Iraq, | 9:26 | |
I became increasingly disenchanted and disillusioned with | 9:28 | |
the administration's use of the military. | 9:34 | |
Their refusal or disregard for the opinion | 9:37 | |
of professionals experts in the law of war | 9:45 | |
in the JAG Corps and in the state department. | 9:49 | |
And it just seemed like | 9:54 | |
I wasn't sure I wanted to be part of the whole thing, | 9:58 | |
but I loved being an officer, | 10:03 | |
I loved being in the air force, | 10:04 | |
and I had, so I decided to get out | 10:06 | |
but to stay in the reserves in the hope that | 10:09 | |
I would be able to continue to contribute in some way, | 10:11 | |
and there might be some opportunities that would come up, | 10:14 | |
and administrations change, and times change, | 10:17 | |
and so things could swing back. | 10:21 | |
So as I said in 2005, | 10:26 | |
got off active duty, became a law professor. | 10:32 | |
And as a law professor, as you know, | 10:35 | |
you have to write law review articles and do scholarship. | 10:37 | |
And so I started looking | 10:40 | |
at the military commissions more seriously. | 10:43 | |
And one of the talking points of the administration | 10:47 | |
was that military commissions | 10:54 | |
were essentially the same as a courts martial, | 10:55 | |
that these detainees were gonna get the same rights | 11:00 | |
that our soldiers, sailors, airmen, and marines get. | 11:02 | |
And they were 99% the same, | 11:05 | |
and just a couple of very minor tweaks | 11:07 | |
for national security purposes or intelligence. | 11:11 | |
And so I wrote an article | 11:16 | |
in which I compared the military commissions | 11:18 | |
to that the rules and procedures, | 11:23 | |
to the rules and procedures for general courts-martial. | 11:26 | |
And what I concluded, | 11:29 | |
was that these two legal schemes were very different. | 11:33 | |
That if they were 99% the same, that 1% was a very critical. | 11:40 | |
Sometimes they say that we share 99% | 11:46 | |
of our DNA with chimpanzees, but we're very different, | 11:50 | |
and that was kind of like this. | 11:52 | |
They took many of the best features | 11:55 | |
of the military justice system and just remove them. | 11:57 | |
I happen to think of the military justice system | 12:00 | |
was very good, sound, fair, legal system. | 12:02 | |
And we would have been well-served | 12:07 | |
to simply utilize the existing system. | 12:08 | |
And that was authorized under the law as of 9/11 | 12:11 | |
but that's not what the president chose to do. | 12:15 | |
And that was in part why | 12:17 | |
the initial military tribunals were struck down | 12:19 | |
by the Supreme Court. | 12:23 | |
So after I had written this article in January of 2008, | 12:26 | |
I got a solicitation from the department of defense, | 12:34 | |
all the reserve JAGs and active duty JAGs, | 12:40 | |
I think were asked if they were interested | 12:43 | |
in volunteering to serve | 12:46 | |
with the officer military commissions, | 12:47 | |
either as prosecutors or as defense counsel. | 12:49 | |
Now, by this time, I was no longer interested | 12:54 | |
in being a prosecutor in a system | 12:57 | |
that I felt was unfair, was rigged, | 13:00 | |
was stacked against the detainees. | 13:02 | |
And in my article, I had written | 13:04 | |
about a number of ways | 13:09 | |
that I thought the system could be challenged, | 13:09 | |
should be challenged, should be improved and revised. | 13:11 | |
And so I thought as a defense counsel | 13:16 | |
I might have the opportunity to put some of those ideas | 13:18 | |
into practice and maybe make a difference | 13:20 | |
in this whole scheme. | 13:24 | |
So I volunteered in January, 2008 to be a defense counsel. | 13:27 | |
And I was interviewed in February, 2008, | 13:36 | |
by the chief defense counsel, Colonel Stephen David | 13:43 | |
U.S. Army Reservist, who interestingly enough | 13:47 | |
was elected Republican judge in Indiana. | 13:51 | |
But he was very strong on the rule of law, | 13:56 | |
and that's how he saw the role of the defense counsel | 13:59 | |
in upholding the rule of law, | 14:05 | |
defending the constitution and ensuring | 14:06 | |
that the detainees got as fair a trial as possible, | 14:10 | |
given the constraints that we were under. | 14:14 | |
And so, | 14:16 | |
he said he needed people desperately right away, | 14:18 | |
and when could I start? | 14:21 | |
And I said, "Well, I really, | 14:23 | |
I'm in the middle of a semester | 14:26 | |
but I could come as soon as my spring semester is over." | 14:28 | |
And so that's what I did. | 14:32 | |
I gave my last class, | 14:34 | |
jumped in a moving truck and drove to Washington DC. | 14:36 | |
And I reported to the office of military commissions | 14:39 | |
on April 28th or 29th, | 14:45 | |
28th, I believe it was, 2008. | 14:50 | |
And so the first day that I arrive, | 14:53 | |
I walk in and someone is kind of packing up | 14:58 | |
his office was an army colonel. | 15:01 | |
And he said, "Oh, you're the new guy." | 15:06 | |
I said, "Yeah." | 15:08 | |
He said, "Well, let me give you a piece of advice." | 15:09 | |
I said, "Okay." | 15:11 | |
That was a major, so colonel wants to give you advice. | 15:13 | |
You take it. | 15:15 | |
And he said, "Don't get your hopes up, don't think | 15:17 | |
for a minute that you can win one of these cases. | 15:22 | |
You just save yourself a lot of heartache | 15:27 | |
because you can't win. | 15:29 | |
It doesn't matter if the facts are on your side, | 15:30 | |
if the law's on your side, the system is rigged, | 15:32 | |
it's a kangaroo court, | 15:36 | |
so it's just not gonna happen, so just..." | 15:39 | |
So, (chuckles) | 15:43 | |
I said, "Okay, sir, thank you, I appreciate that." | 15:44 | |
And then I had a meeting with my new boss and I went | 15:47 | |
and I said, "Who was that colonel?" | 15:52 | |
They said, "Oh yeah, that's the guy you're replacing. | 15:55 | |
You're taking over his cases." (laughs) | 15:58 | |
So how great. | 16:00 | |
That's a great welcome to the commissions. | 16:03 | |
But that was the atmosphere and the attitude | 16:06 | |
of the defense community. | 16:10 | |
They had struggling mightily, had won a number of victories | 16:11 | |
all the way to the Supreme court | 16:16 | |
but the Bush administration was just relentless | 16:17 | |
in seeking to prosecute | 16:20 | |
their clients regardless of what their evidence said. | 16:24 | |
And that's the way they failed anyway, | 16:31 | |
the defense community felt like | 16:35 | |
they were under siege, that it was, | 16:37 | |
this whole weight of the government | 16:40 | |
of the Department of Defense and the Department of Justice | 16:42 | |
was coming down, bearing down on their clients. | 16:45 | |
And here we were operating with minimal resources. | 16:48 | |
And indeed, that's why I was assigned two cases | 16:53 | |
as lead counsel on my first day, | 16:58 | |
essentially in the office. | 17:01 | |
Interviewer | Before we go into that, I'm just as curious. | 17:03 |
Were you surprised that they hired you after you wrote | 17:06 | |
these articles that were critical | 17:11 | |
of the system you were walking into | 17:13 | |
that they found you and hire you | 17:15 | |
particularly because of these articles, so this article. | 17:17 | |
- | Well, that's interesting you asked that, | 17:21 |
I wasn't surprised | 17:22 | |
that the chief defense council would want me | 17:24 | |
because I had some. | 17:27 | |
They were looking for people who have significant | 17:29 | |
criminal defense experience, | 17:32 | |
especially in the military justice system. | 17:34 | |
They wanted people who had international law experience | 17:36 | |
because there's so many international law | 17:38 | |
and law of war issues. | 17:40 | |
And I had extensive experience in both. | 17:43 | |
And I had, this Harvard pedigree that impresses people, | 17:45 | |
but also I was actually familiar | 17:49 | |
with the military commissions, | 17:54 | |
I'd written a law review article. | 17:55 | |
So I wasn't surprised that he wanted. | 17:56 | |
But I had to go through a screening process | 17:58 | |
where the air force would nominate | 18:02 | |
among the people that applied | 18:06 | |
they would nominate the people | 18:07 | |
that they thought were best qualified | 18:08 | |
and then that would go to the Pentagon, | 18:10 | |
and then those names would filter down | 18:13 | |
to the the chief prosecutor, the chief defense counsel. | 18:14 | |
And I wasn't sure I was gonna make it through that screening | 18:18 | |
because who knew what would happen. | 18:22 | |
And in fact, 15 minutes | 18:25 | |
before I was scheduled for my interview, | 18:28 | |
I got a call from the senior reserve advisor, | 18:31 | |
to the judge advocate general of the Air Force. | 18:37 | |
And so this would be basically | 18:39 | |
the top lawyer in my reserve chain of command | 18:41 | |
in the Air Force. | 18:45 | |
And he said, "Dave I understand you were supposed | 18:47 | |
to have an interview with the | 18:50 | |
office of military commissions." | 18:51 | |
And I said, "Oh, well" I was thinking to myself, | 18:53 | |
well, this is nice, like he's calling | 18:55 | |
to give me some encouragement and something like that. | 18:56 | |
He says "Well, the interview is off." | 19:01 | |
I said, "Well, what do you mean?" | 19:07 | |
He said, "Well, some issues have come up, | 19:08 | |
you're not gonna be able to interview, | 19:11 | |
do not interview for the position." | 19:12 | |
I'm like, "Well, why can you give me an explanation?" | 19:13 | |
And he gave me some, there was a funding issues, | 19:17 | |
and I said, "Colonel this doesn't make any sense. | 19:23 | |
I know, that the military commissions | 19:27 | |
are the number one priority | 19:29 | |
of the Department of Defense of the president. | 19:31 | |
You can't tell me that there's not funds | 19:35 | |
to hire a reservist." | 19:38 | |
I said, "So is this just me? | 19:41 | |
Or they're not gonna hire any reservists, | 19:44 | |
there's no funding for any reservists." | 19:47 | |
And he's sort of hemmed and hawed, | 19:48 | |
and it was clearly he was uncomfortable because he knew | 19:49 | |
that he was not able to give me a straight answer. | 19:53 | |
And finally, he just said, | 19:57 | |
"I'm giving you a direct order, do not interview." | 20:00 | |
And that's actually the first time | 20:04 | |
in my military career that anyone has ever | 20:05 | |
pulled the I'm giving you a direct order thing. | 20:08 | |
I mean, that's in the legal community, | 20:10 | |
I mean, your boss tells you what to do | 20:13 | |
but he never has to couch it in those terms. | 20:15 | |
So I was stunned, | 20:18 | |
I was really looking forward to this opportunity, | 20:20 | |
it was already in my mind, I was already headed down there. | 20:22 | |
So a few minutes later, | 20:26 | |
the chief defense counsel calls me and he says, | 20:29 | |
"I just was told that I was not allowed to interview you. | 20:33 | |
Are you not interested in the job anymore?" | 20:38 | |
I said, "No, I am, but I was ordered not to interview." | 20:40 | |
He said, "Well, I don't work for the Air Force, | 20:42 | |
so here's what I propose, I'm gonna interview you, | 20:46 | |
and if I want you, I'm gonna tell them that I want you, | 20:50 | |
and then they can tell me why I can't have you. | 20:53 | |
And then I'll go to the press and say I can't do my job | 20:56 | |
because I can't get qualified defense counsel." | 21:01 | |
I said, "Okay, sir, you're the boss." | 21:04 | |
So he interviewed me and a day or two later, | 21:06 | |
he called up and said, | 21:11 | |
whatever problem it was has gone away and you're hired. | 21:13 | |
So I think somebody got wind | 21:18 | |
that I maybe a formidable adversary, | 21:21 | |
and they didn't want me there. | 21:28 | |
That's the only thing I can think of. | 21:31 | |
But in any event, | 21:34 | |
I got hired and defied the direct order and took the job. | 21:37 | |
So, was there another part to your question? | 21:44 | |
Interviewer | Well no, we can go on, you were back | 21:48 |
just got to assign- | 21:50 | |
- | Yeah, so I arrive, | |
and he said, "I'm giving you two cases." | 21:54 | |
Now, the two cases, | 21:56 | |
the two clients that I was being handed were very different. | 21:59 | |
One was a young Afghan teenager named Mohammed Jawad. | 22:07 | |
And that's the case I ended up spending most of my time on | 22:13 | |
for reasons that I'll explain in a moment. | 22:16 | |
The other was | 22:19 | |
a Yemeni named Ali Hamza Ahmad al-Bahlul, | 22:23 | |
and Ali Hamza had, | 22:27 | |
both had already been served with their charges, | 22:35 | |
the charges had been referred to trial. | 22:38 | |
And Mohammed had actually already been arraigned in March, | 22:42 | |
his initial arraignment with this other army lawyer. | 22:49 | |
But at that proceeding, | 22:54 | |
he had said he didn't want any lawyer, | 22:56 | |
and this army lawyer who was, | 22:58 | |
he was also in the reserves and he had signed up | 23:01 | |
for a year and the case had moved very slowly, | 23:03 | |
and he was coming to the end of his year, | 23:06 | |
no progress was inside | 23:08 | |
and he decided he didn't want to continue. | 23:10 | |
And he was having a difficult relationship with the clients. | 23:13 | |
And so, he asked the judge to be excused from the case. | 23:16 | |
And the judge asked Mohammed, | 23:19 | |
"Well do you want this lawyer?" | 23:22 | |
He said "I don't want him, I don't want any lawyer, | 23:23 | |
I don't want any part of this, I can't get a fair trial, | 23:25 | |
it's a kangaroo court, my rights are being violated." | 23:28 | |
And he had a kind of a fit. | 23:31 | |
And so it was Mohammad that I was... | 23:35 | |
he had been arraigned, but the main thing that happens | 23:40 | |
at the arraignment is that they advise you | 23:43 | |
of your rights to counsel, you choose your counsel, | 23:47 | |
and then they sort of set a schedule going forward. | 23:49 | |
And they really had got, gone nowhere with it. | 23:52 | |
Mr. al-Bahlul had been scheduled for arraignment | 23:57 | |
but then in his lawyer was excused, so they were itching, | 24:00 | |
the prosecution was really itching to get moving forward | 24:05 | |
with this case. | 24:07 | |
Jawad had been the fourth person charged | 24:08 | |
in the military commissions. | 24:13 | |
The first three were Omar Khadr, David Hicks | 24:15 | |
and Salim Hamdan. | 24:18 | |
And then Jawad was fourth. | 24:20 | |
He was charged in October of 2007. | 24:23 | |
And al-Bahlul was, I think he was fifth or sixth, | 24:27 | |
and he was charged in December, 2007. | 24:32 | |
So this, yes. | 24:37 | |
Interviewer | Were there other cases going on | 24:39 |
at the time that you got those who immediately | 24:40 | |
after the first three or four? | 24:44 | |
And secondly, who's giving you two cases appropriate | 24:46 | |
at that time? | 24:50 | |
Is that what all defense attorneys got? | 24:50 | |
- | Well, there were a couple other cases | 24:53 |
that were in process, and that was Hamdan and Omar Khadr. | 24:58 | |
Salim Hamdan and Omar Khadr. | 25:05 | |
Those two were a little bit further along. | 25:06 | |
And then the chief defense counsel had been advised | 25:09 | |
that there were several other cases | 25:15 | |
that were gonna be charged soon, including the 9/11 cases. | 25:17 | |
And they were expecting six defendants for that, | 25:21 | |
there were six initially and one dropdown. | 25:24 | |
And there were a couple other that were in progress | 25:27 | |
that already had attorneys. | 25:29 | |
They were very short of lawyers, of qualified lawyers. | 25:32 | |
And there was one other guy who had two cases, | 25:37 | |
had two clients, but... | 25:45 | |
So the judge advocate general's | 25:47 | |
of each of the services had promised, | 25:49 | |
that once the commissions finally got up and running, | 25:51 | |
they would provide more lawyers | 25:53 | |
but they didn't want to send people over there | 25:55 | |
to do nothing, which is basically what had been happening | 25:56 | |
for the previous five years. | 25:58 | |
So I got there in late April, | 26:02 | |
a whole bunch of lawyers came in in June, July, and August. | 26:04 | |
And the first few got a case, | 26:09 | |
were assigned to a case, | 26:14 | |
and so, then there were no more cases. | 26:15 | |
And so there was only two of us | 26:17 | |
that were lead counsel on two cases. | 26:21 | |
And in these cases that I were given, | 26:24 | |
were considered to be fairly minor insignificant cases, | 26:27 | |
they had what they called the high value detainees, | 26:33 | |
and then the non high value or the low value. | 26:36 | |
And these were non-capital cases, | 26:40 | |
and so it was, | 26:43 | |
but yeah, I was thrown into it faster and deeper | 26:48 | |
than any other lawyer ever had been. | 26:52 | |
Because these cases had for the most part, | 26:54 | |
you would assign a case and then it would be months | 26:57 | |
before anything would happen. | 26:59 | |
I got the cases on a Monday, the April 28th, | 27:02 | |
and I was told the next day, | 27:07 | |
"You have arrangements in both cases next week, May 7th." | 27:11 | |
And so I had to get down to Guantanamo | 27:16 | |
and try to establish an attorney-client relationship | 27:19 | |
with both these individuals | 27:21 | |
before these hearings, the following week. | 27:24 | |
Interviewer | I just have one more question and that is, | 27:27 |
were there sufficient competent defense attorneys | 27:30 | |
that could have been there? | 27:34 | |
Just that when they were sent, there was no work for them. | 27:35 | |
They were sent home, but in fact, | 27:38 | |
there were people like you could have been available? | 27:39 | |
- | Well there were certainly people | 27:44 |
in the military who were interested in doing it, | 27:46 | |
although there was some concern that it was not, | 27:49 | |
it was a dead end that it would not be | 27:53 | |
a career enhancing a position. | 27:56 | |
So there were some people were reluctant to go | 28:00 | |
for that reason, but it was mainly | 28:02 | |
by law under the Military Commissions Act | 28:06 | |
the defense attorneys had to be a military, | 28:09 | |
had to be JAGs. | 28:13 | |
The prosecution could either be JAGs | 28:14 | |
or justice department attorneys. | 28:16 | |
And there were plenty of people who wanted to volunteer | 28:21 | |
to prosecute the the bad guys, the 9/11, you know? | 28:24 | |
And because that's what people thought | 28:28 | |
the commissions were about. | 28:29 | |
They thought it was about 9/11 | 28:30 | |
and other major terrorist attacks on the U.S. such as the, | 28:32 | |
the African Embassy bombings | 28:37 | |
and the bombing of the USS Cole. | 28:39 | |
But it was turning out that at least the initial cases | 28:42 | |
weren't about that at all. | 28:45 | |
So but there was a shortage | 28:49 | |
of defense attorneys because the Judge Advocate General's | 28:52 | |
just didn't wanna send people over it | 28:57 | |
and the best people, the really experienced people, | 28:59 | |
if there wasn't gonna be work for them. | 29:04 | |
And as you know, the commissions were sort of moving forward | 29:09 | |
in fits and starts | 29:12 | |
and had been several years, | 29:13 | |
no one had actually gone to trial yet. | 29:17 | |
So, they were sort of when we see some action, | 29:18 | |
we'll give you some people. | 29:22 | |
So just by chance that I showed up in late April, | 29:25 | |
as opposed to six weeks later, | 29:28 | |
when there was a large influx of attorneys. | 29:30 | |
And the people they sent, | 29:33 | |
they did get highly qualified attorneys. | 29:34 | |
And the chief defense counsel was particularly keen | 29:37 | |
on bringing in reservists for a couple of reasons. | 29:40 | |
One is that we weren't so focused on, | 29:44 | |
or worried about our military careers, | 29:49 | |
because we all have civilian careers to fall back on. | 29:52 | |
And so we could be aggressive, | 29:55 | |
we could not be worried about promotion | 29:56 | |
and pissing off some general or something. | 30:00 | |
And I think that was a good move on his part, | 30:03 | |
that certainly fit that bill. | 30:05 | |
And of course also the reservist tend to be more experienced | 30:09 | |
because many of them had gone out, | 30:13 | |
gotten out and then gone and been U.S. attorney, | 30:16 | |
assistant U.S. attorneys or federal defenders | 30:19 | |
or public defenders. | 30:22 | |
And so he was able to bring in very experienced people. | 30:25 | |
Although the one area where we were short | 30:28 | |
was in capital defense, | 30:31 | |
there's very few death penalty cases in the military | 30:37 | |
for many years, there was no death penalty in the military. | 30:41 | |
So there may be only a handful | 30:44 | |
of capital qualified defense lawyers in the military, | 30:49 | |
and that's why they were the ACLU | 30:52 | |
and the National Association of Criminal Defense Attorneys, | 30:58 | |
put together this John Adam's project | 31:01 | |
to bring in qualified capital defense counsel. | 31:03 | |
And the new version of the Military Commissions Act, | 31:06 | |
provides for learned counsel, | 31:09 | |
death qualified counsel to be appointed in capital cases. | 31:13 | |
But anyway, for whatever reason, I impressed Colonel David, | 31:15 | |
and he thought I could handle two cases | 31:21 | |
and gave me two cases. | 31:23 | |
It may have just been, | 31:24 | |
I was there when they needed somebody | 31:26 | |
and, "Okay, you're the man who gonna do it." | 31:29 | |
But I had no assistance. | 31:34 | |
I mean, I had a paralegal | 31:37 | |
and she was wonderful Army staff sergeant, | 31:39 | |
and she said, | 31:44 | |
"Sorry I've arranged for you to go to the Guantanamo. | 31:47 | |
I've got translators for you." | 31:50 | |
And then she said something very funny. | 31:54 | |
She said, "There's one something I have to tell you | 31:58 | |
about your your Pashto interpreter." | 32:00 | |
So I had a Pashto interpreter for Mohammed | 32:03 | |
who was from Afghanistan, | 32:05 | |
and I had a Arabic interpreter for Mr. al-Bahlul. | 32:06 | |
She said, "Your interpreter is deaf." | 32:11 | |
I said, "You've gotta be kidding me, | 32:14 | |
a deaf interpreter? And what is he using, | 32:16 | |
sign language?" | 32:19 | |
She said, "Well, no, he's not completely deaf, | 32:19 | |
but he's hard of hearing, he's elderly, | 32:21 | |
and it's a little hard to understand his English." | 32:27 | |
And I'm thinking, "Oh, she's, | 32:31 | |
this is the best we can do." | 32:32 | |
And in fact, many of the best linguists | 32:34 | |
were utilized for intelligence purposes | 32:37 | |
and things like that. | 32:41 | |
So I was always hard to find really good interpreters, | 32:42 | |
turned out that this partial interpreter | 32:45 | |
really was wonderful, because he had the key ingredient, | 32:47 | |
which was he had a rapport with Mohammed Jawad. | 32:56 | |
And that's the only thing that matters | 33:00 | |
with the interpreter, you know? | 33:01 | |
I mean, yes, that they can communicate effectively, | 33:02 | |
but, you'll put up with any kind of bizarre | 33:04 | |
personal idiosyncrasies if they get, | 33:09 | |
and can get along with the client | 33:11 | |
and help you to build a rapport with the client. | 33:12 | |
And he did that. | 33:15 | |
So, the first day there was one other | 33:17 | |
noteworthy thing happened in the first day or two, | 33:23 | |
and that was that I got a call, | 33:25 | |
from Lieutenant Colonel Darrell Vanderbilt | 33:29 | |
who was the lead prosecutor on the Jawad case. | 33:34 | |
And he said, he wanted to welcome me, | 33:39 | |
and if was there anything he could do to help me | 33:41 | |
to get ready, and he'd be happy to meet with me, | 33:44 | |
and go over the file | 33:47 | |
talk about the case, tell me what to expect in Guantanamo. | 33:49 | |
He was very helpful, very professional, very cordial. | 33:52 | |
And I thought, okay, you know, | 33:56 | |
this was a guy that I can work with. | 33:57 | |
And I said, | 34:01 | |
"Well, you know, I don't even know what I need to know | 34:03 | |
right now, but I appreciate it, | 34:06 | |
and I'll see you down there next week." | 34:08 | |
So, on April 30th, | 34:09 | |
'cause this is, Wednesday now I've got there on Monday. | 34:17 | |
I had a plane, my own plane. | 34:21 | |
And this was how wasteful things were in Guantanamo. | 34:24 | |
I mean, people talk about, | 34:27 | |
well, we don't want to spend money opening a prison | 34:30 | |
in Illinois or something like that. | 34:33 | |
It is incredibly expensive | 34:34 | |
and incredibly wasteful down there. | 34:36 | |
So I have, it's an army plane, | 34:40 | |
and it's a five passenger plane. | 34:45 | |
So there's a pilot and co-pilot. | 34:48 | |
And then we left from Fort Belvoir outside of DC. | 34:51 | |
And I pick up my interpreters like 5:30 in the morning, | 34:57 | |
we get in this plane. | 35:02 | |
And there's one of the seats is used for the life raft. | 35:06 | |
But anyway, we have our own little plane | 35:12 | |
and there I'm thinking, "Geez, | 35:14 | |
this has gotta be expensive to." | 35:18 | |
And we get on the plane we fly down, | 35:21 | |
we stop at West Palm beach to refuel, | 35:24 | |
it's an executive jet airport. | 35:27 | |
And on the way, I'm thinking about, | 35:30 | |
what am I gonna say to my clients, to these two guys? | 35:32 | |
How do you introduce yourself? | 35:37 | |
How do you, you know, | 35:40 | |
I'm Major Frakt, I'm your lawyer, I'm here to help you. | 35:43 | |
I mean, you know, you're wearing the military uniform, | 35:46 | |
the uniform of their tormentors, their tortures, | 35:50 | |
I didn't know what's happened to these guys, | 35:53 | |
I don't know anything about their personal stories. | 35:55 | |
All I know is they want nothing to do | 35:59 | |
with the military commissions. | 36:01 | |
They they are not cooperating. | 36:02 | |
In fact, Mr. al-Bahlul | 36:05 | |
had been leading a boycott of the commissions, | 36:07 | |
and he was considered to be very influential | 36:10 | |
with the other detainees | 36:13 | |
and persuading them not to participate | 36:15 | |
'cause he's kind of intellectual leader. | 36:18 | |
And my boss, Colonel David wanted, | 36:21 | |
he asked if he could go in with me | 36:25 | |
and talk to him and see if he could persuade him, | 36:27 | |
at least not to actively undermine the military commissions | 36:31 | |
and the other attorney client relationships. | 36:37 | |
And he actually brought a message | 36:40 | |
for him from Moazzam Begg in England, | 36:42 | |
that he, who had been released | 36:47 | |
to a former detainee. | 36:48 | |
So, I'm thinking about, what am I gonna say to these people? | 36:52 | |
And what kind of lives have they been leading | 36:55 | |
in the past few years? | 36:57 | |
And then we stopped in West Palm beach | 36:58 | |
and it's this executive jetport. | 37:01 | |
And we go in and there's fresh baked chocolate chip cookies | 37:05 | |
and complimentary Starbucks coffee and the leather sofas. | 37:12 | |
And it just seemed like such an odd juxtaposition | 37:16 | |
of I'm on my way to this prison | 37:19 | |
where these people who lived in these, | 37:21 | |
various spartan, austere conditions for years. | 37:23 | |
And I'm getting the royal treatment, my own private plane. | 37:26 | |
So we continued on and we get down there, | 37:32 | |
and my paralegal had set up an appointment with me, | 37:37 | |
the first day to meet both clients. | 37:42 | |
So they there's a morning appointment, | 37:44 | |
there's an afternoon appointment. | 37:46 | |
So I asked her to do one in the morning | 37:47 | |
one in the afternoon, | 37:49 | |
and I wanted to meet both of them right away | 37:51 | |
and start trying to build this relationship. | 37:53 | |
And she had said that she did that | 37:55 | |
but I couldn't remember who I had in the morning | 37:56 | |
and who I had in the afternoon. | 37:59 | |
So, I called the legal office, | 38:00 | |
and then everything that you do there is, | 38:03 | |
that the defense attorneys have to go through | 38:05 | |
the prison legal office | 38:08 | |
so the joint task force, Guantanamo legal office. | 38:11 | |
They escort us to and from, and arrange all the visits. | 38:14 | |
So I called over, I said, | 38:19 | |
"Who's my visit with this morning?" | 38:20 | |
And they said, | 38:23 | |
"Oh you're gonna meet al-Bahlul this morning." | 38:24 | |
I said, "Okay." | 38:28 | |
So I picked up my Arabic interpreter, | 38:29 | |
a wonderful, I had asked for someone from Yemen, | 38:35 | |
because, I thought al-Bahlul was Yemeni | 38:39 | |
and then maybe they wouldn't hid it off. | 38:43 | |
I think my paralegal would ask for that. | 38:47 | |
But anyway, we got one and very, very skilled interpreter | 38:49 | |
and picked him up, brought him over to the prison camp, | 38:56 | |
and it takes a while to go through all these checkpoints | 39:00 | |
and we get there, and I said, | 39:03 | |
"Okay, we're here to see Mr. al-Bahlul" | 39:06 | |
And they said, | 39:08 | |
"Oh no you're seeing him this afternoon. | 39:08 | |
You're you're seeing Jawad this morning." | 39:10 | |
And so I said, no, this, | 39:14 | |
I called specifically to find out, | 39:17 | |
I said, "I have the wrong interpreter, can we switch?" | 39:19 | |
They said, "No, no, he's already waiting you." | 39:23 | |
So I'm like, okay, and I rushed back, | 39:26 | |
of course you can't drive fast on a military installation, | 39:30 | |
there's iguanas, you can't hit the iguanas. | 39:32 | |
But I went to get my Pashto interpreter | 39:35 | |
who was just getting up and he is very old world. | 39:40 | |
And so he wanted to have a cup of tea, | 39:45 | |
and sit and talk before, | 39:47 | |
we just need to get back there, were gotta get over there. | 39:49 | |
So we finally, I get the right interpreter | 39:51 | |
at the right place. | 39:54 | |
We go over to see Mr Jawad at his prison camp. | 39:55 | |
And we get there, we got more checkpoints, more waiting, | 40:01 | |
and the visit was supposed to start at 9:00 AM, | 40:06 | |
and by now it's about 10:30. | 40:07 | |
So I'm very frustrated, and we get in and they say, | 40:10 | |
"There's a problem." | 40:17 | |
I said, "Well, what's the problem?" | 40:18 | |
"Mr. Jawad, he has to pee." | 40:21 | |
I said, "Well, okay, well, let him pee then, | 40:24 | |
then we'll wait." | 40:28 | |
He said, "No, you don't understand, | 40:29 | |
he's already peed this morning." | 40:30 | |
I said, "Yeah, I don't understand, | 40:34 | |
so what's the significance of that?" | 40:35 | |
He said, "Well, we have a two pee rule." | 40:37 | |
I said, "Two, what's the two pee rule." | 40:40 | |
He said, "Well, he have to pee a second time, | 40:42 | |
then the interview is canceled and it's over, | 40:44 | |
and then, the session is over." | 40:47 | |
I said, "You gotta be kidding me, | 40:50 | |
I mean, you guys gave me the wrong, | 40:52 | |
you told me the wrong information, | 40:54 | |
I'm late, it's not his fault. | 40:55 | |
He's been sitting there and it was ice cold in the prison." | 40:57 | |
They keep the air conditioning very low. | 41:00 | |
The detainees think it's to make them uncomfortable, | 41:03 | |
the prison says it's to keep out the rats, | 41:06 | |
or I don't know why, but it's always very, very cold | 41:08 | |
in the prison itself. | 41:11 | |
Which is where this particular interview was being held, | 41:13 | |
or was to be held. | 41:17 | |
So I said, "Well, okay, just let me talk to him | 41:18 | |
just for one second." | 41:22 | |
So we walk in and I asked my interpreter | 41:23 | |
to ask him if he really needs to go that badly. | 41:27 | |
And we walk in and he's hopping back and forth on one foot, | 41:32 | |
doing the pee-pee dance | 41:35 | |
and which is not easy when your legs are shackled together, | 41:37 | |
but he clearly had to go. | 41:41 | |
And as I learned later, he had kidney problems, | 41:43 | |
he had frequently had to urinate. | 41:46 | |
And he says, 'cause it was a constant cold | 41:49 | |
just made it very difficult for him. | 41:51 | |
So he said, "Yeah, I really gotta go." | 41:56 | |
I said, "Okay, well, I'm your new lawyer, | 42:00 | |
we'll come back and see you as soon as we can, | 42:01 | |
I'm very sorry about the delay." | 42:03 | |
So it was a horrible, horrible start | 42:05 | |
to my attorney client relationship building | 42:08 | |
and how I envisioned | 42:13 | |
in this great speech that I had prepared. | 42:14 | |
But it was emblematic of the Guantanamo experience, | 42:17 | |
because there was always some snafu like that. | 42:21 | |
Things never went smoothly, | 42:25 | |
and the defense lawyer started to think that, | 42:28 | |
they were doing this to us intentionally, | 42:31 | |
that, because it happened so frequently | 42:33 | |
and there were so many unreasonable rules, | 42:36 | |
and there was new rules and they were constantly changing, | 42:38 | |
and things were unwritten like this two pee rule. | 42:41 | |
It just seemed like, and you couldn't be mad at the guards. | 42:45 | |
The guards had their marching orders, | 42:49 | |
they were trying to do everything, strictly by regulation. | 42:52 | |
But you can never find out who the person was, | 42:58 | |
that was in charge that could actually give you a reason | 43:00 | |
why something was happening, | 43:03 | |
and so it was just, it was frustrating. | 43:05 | |
But yeah- | 43:08 | |
Interviewer | Even though you were a military officer, | 43:12 |
you, it sounds to me like you received the same treatment | 43:15 | |
that a civilian attorney got who went to Guantanamo, | 43:17 | |
that you didn't have more access or more- | 43:20 | |
- | No, the difference would be, | 43:25 |
I got a sir at the end of it. | 43:28 | |
"No, you cannot see him, sir." | 43:30 | |
You know, I didn't. | 43:32 | |
They started once we were down there more often, | 43:36 | |
and they started to recognize you, | 43:40 | |
then sometimes, there would be a friendly person, | 43:43 | |
who would move with a little more alacrity or something. | 43:46 | |
But, these were guards who were doing very difficult job, | 43:51 | |
they were working 12 hour shifts, | 43:56 | |
six, seven days a week for months. | 43:58 | |
This is not what they were trained to do, | 44:00 | |
I mean, they got training for, | 44:02 | |
but that's not why they joined the army or the Coast Guard. | 44:03 | |
And they were all out of their original career fields, | 44:06 | |
and often just standing outside | 44:11 | |
in a very hot humid conditions | 44:14 | |
and guarding some gate, you know? | 44:17 | |
And so I tried to be patient and understanding with them | 44:19 | |
but, it was challenging at times. | 44:25 | |
And there were a couple times where I lost my temper, | 44:29 | |
'cause things were so ridiculous. | 44:32 | |
Some new rule would be imposed, | 44:36 | |
and I remember one time, | 44:38 | |
they always wanted to look at our papers | 44:43 | |
before we went in and they said they weren't reading them, | 44:46 | |
but there were lawyers who would read them | 44:50 | |
and make sure we weren't bringing in any | 44:53 | |
information that we weren't allowed to bring in. | 44:57 | |
One thing that we found very frustrating | 44:59 | |
is we weren't supposed to bring in any news, | 45:00 | |
any current events, | 45:03 | |
which is what the detaining has craved | 45:04 | |
more than anything else. | 45:07 | |
And there were times when it was really necessary | 45:09 | |
for them to know what was going on, | 45:11 | |
and we weren't allowed to tell them nothing about the war. | 45:14 | |
And some of these rules just were not reasonable | 45:16 | |
from a defense counsel perspective of | 45:19 | |
trying to build a relationship with the detainee | 45:21 | |
who wanted to know, they wanted you to help them, | 45:23 | |
give them something that they couldn't otherwise get. | 45:28 | |
And if they're like, | 45:30 | |
"Well, you're a major, you're a lieutenant colonel, | 45:33 | |
you can't tell me what was going on, what's..." | 45:35 | |
So we had to try to remember everything | 45:39 | |
because it couldn't be written down so we could tell them. | 45:42 | |
But they would go through our papers | 45:45 | |
and they would remove staples and paper clips, | 45:47 | |
anything that could be used as a weapon | 45:53 | |
and things like that. | 45:54 | |
And I understood that 'cause you you go to see a client | 45:59 | |
in a prison in America, | 46:01 | |
they make sure that everything's safe, | 46:03 | |
there's no contraband, nothing sharp. | 46:04 | |
Okay, so then we're coming out and they said, | 46:07 | |
"Oh we need to look at both of your papers again. | 46:10 | |
and we need to search you again." | 46:14 | |
And I said, and sometimes they did this | 46:17 | |
and sometimes they didn't do, | 46:20 | |
it's supposed to be standardized. | 46:21 | |
But the first time they did it to me, | 46:22 | |
I said, "I don't understand this, | 46:24 | |
okay I've just been in a tiny room, | 46:26 | |
you search me on the way in, I've been in a tiny room, | 46:29 | |
with a detainee, where there was three chairs, | 46:32 | |
a table and a detainee who was bolted to the floor, | 46:36 | |
and who was searched before you brought him in there." | 46:40 | |
I said, "I don't have a chair in my pocket, | 46:43 | |
I don't have a table in my pocket, | 46:45 | |
I don't have a detainee in my pocket. | 46:46 | |
What could I possibly have brought out from that cell? | 46:48 | |
What are you searching me for?" | 46:51 | |
They were like, "Well, sir, it's a standard procedure, | 46:52 | |
blah, blah." | 46:55 | |
And I'm like "Okay, okay, fine." | 46:56 | |
But there was no rhyme or reason | 46:57 | |
to a lot of the things that, from my perspective. | 47:00 | |
Interviewer | Did they take your notes away | 47:04 |
like they did for civilians attorney? | 47:05 | |
- | They never took my notes away, | 47:07 |
actually I took very few notes. | 47:09 | |
I just tried to remember what he said, | 47:12 | |
all right, | 47:15 | |
but there were different rules for the high-value detainees. | 47:16 | |
Some of the detainees, | 47:23 | |
anything they said was classified, which is crazy. | 47:26 | |
How do we classify something that a foreign national says, | 47:33 | |
but if they were talking about what they had experienced | 47:38 | |
at Guantanamo, or at a secret CIA ghost prison or anything, | 47:41 | |
you know that was classified. | 47:44 | |
And so if you wrote it down, made a note about it | 47:48 | |
then that note was classified | 47:50 | |
so that note would have to be taken | 47:52 | |
to some special facility, | 47:53 | |
where it was incredibly onerous environment to operate in. | 47:54 | |
Interviewer | Do you think your hearings | 48:00 |
were video taped and audio taped? | 48:02 | |
- | Well, they assured me that they were not, | 48:05 |
but there's a camera in the room, | 48:10 | |
which they said was for security only | 48:14 | |
that the audio was off that, | 48:16 | |
but they could just keep an eye on it | 48:18 | |
if the detainee jumped up | 48:20 | |
and tried to strangle me or something like that. | 48:21 | |
And they did give us the option | 48:23 | |
of having our client's handcuffs removed which I always did. | 48:24 | |
And we would shake hand eventually as we got closer, | 48:29 | |
we would kind of embrace as we came in. | 48:33 | |
But the detainee felt, sorry my clients felt | 48:37 | |
that everything was taped. | 48:42 | |
That everything was overheard. | 48:44 | |
So they had, | 48:47 | |
that was another the reason | 48:51 | |
they were reluctant to tell us anything. | 48:51 | |
And when there's a camera right there | 48:53 | |
in the corner that they can see, | 48:55 | |
and when you tell them well it's off, | 48:57 | |
I mean or the sound is off. | 48:59 | |
I mean, why would they believe that? | 49:02 | |
And then as stories emerged that there was a secret tapes | 49:04 | |
of things and secret recordings of things. | 49:10 | |
So, we never really knew what they had, | 49:13 | |
or what was heard. | 49:18 | |
We would crank up the air conditioning, | 49:20 | |
a number of the interviews were held outside of the prison | 49:23 | |
in a little encampment that had some individual. | 49:26 | |
There's a little shacks that had a cell one side, | 49:34 | |
and an interview room on the other end. | 49:38 | |
I think it was sort of holding pens for, | 49:39 | |
they were specifically designed for these interviews, | 49:43 | |
and there, they had these rickety old air conditioners | 49:45 | |
and we would crank those up. | 49:48 | |
So it would have drowned out any sound. | 49:50 | |
But that did inhibit. | 49:54 | |
Their perception that they were being recorded inhibited | 49:56 | |
their discussions somewhat. | 49:59 | |
But eventually they wanted to talk, | 50:02 | |
and if you could build their trust | 50:05 | |
they would forget about it for awhile and just talk freely. | 50:08 | |
So I'm barely into the story | 50:15 | |
it's still the first day, basically, | 50:17 | |
but when I finally got to see... | 50:19 | |
Well first I saw Mr. al-Bahlul | 50:23 | |
and he said that he appreciated me coming. | 50:25 | |
And I explained to him why I had volunteered | 50:31 | |
and left a nice cushy law professor job | 50:36 | |
in California to do this, | 50:39 | |
and that I was very sympathetic to the plight | 50:40 | |
of the detainees that their rights were being violated, | 50:44 | |
that they deserved fair trial | 50:47 | |
and they deserved Geneva Conventions, | 50:49 | |
and that's and the other thing. | 50:50 | |
And he said, he appreciated that, | 50:53 | |
and he was sure that I could help him | 50:55 | |
but he had to think about whether that's what he wanted, | 51:00 | |
and he would let me know prior to the arraignment. | 51:03 | |
And so then he refused, | 51:07 | |
I had subsequent visits with him, | 51:10 | |
but I got there and he said, "No, we don't wanna see you." | 51:13 | |
And this was another problem, | 51:18 | |
the detainees had very little control | 51:21 | |
over things in their lives. | 51:23 | |
So one thing that they have a choice on | 51:24 | |
is whether to see their lawyer or not. | 51:27 | |
And so sometimes lawyers will go down there | 51:29 | |
and their client will say, "No, I won't see them." | 51:31 | |
And they will have wasted a whole trip to Guantanamo | 51:35 | |
and it's not easy to get there, | 51:38 | |
it's time-consuming and expensive. | 51:39 | |
I always arrange visits with both my clients | 51:42 | |
and just figuring, | 51:44 | |
if al-Bahlul refused, at least Jawad would see me, | 51:45 | |
and he always did. | 51:49 | |
But on the more... | 51:52 | |
So, my first visit, it seemed to go well with al-Bahlul, | 51:55 | |
but a couple of his former, | 51:58 | |
he had had a number of lawyers that previously | 52:01 | |
and they had told me he was very tricky | 52:03 | |
and he may lead you on and let think | 52:06 | |
that you're gonna represent him | 52:09 | |
and then he'll pull the rug out from you. | 52:11 | |
As for Mr. Jawad, | 52:15 | |
we had a couple more sessions prior to the arraignment, | 52:19 | |
and I started to build up some rapport with him. | 52:21 | |
And I told him, and he asked me a question that | 52:28 | |
was kind of hard to answer. | 52:36 | |
And he said, "Why should I trust you? | 52:37 | |
How do I even know you're a lawyer? | 52:41 | |
I didn't even know what you say you are. | 52:42 | |
I've had so many people come in here | 52:45 | |
and tell me so many different things, | 52:47 | |
that they're this, they're that, | 52:50 | |
they're gonna do this for me, they're gonna do that for me, | 52:52 | |
nothing ever happened, nothing ever came of it, | 52:53 | |
why should I trust you?" | 52:55 | |
I said, | 52:57 | |
"Well, you shouldn't, you should not trust me, | 52:59 | |
and you shouldn't trust anybody. | 53:03 | |
What I'm asking you to do | 53:06 | |
is to come to court with me next week, | 53:09 | |
and you have to go anyway, | 53:12 | |
they're gonna drag you over there. | 53:14 | |
So you might as well go voluntarily, | 53:15 | |
and watch me one time, | 53:19 | |
let me represent you one time in the courtroom, | 53:20 | |
and then decide, am I a real lawyer? | 53:25 | |
Am I operating in your best interests? | 53:28 | |
And if you're not happy, then just fire me." | 53:31 | |
I said, "I work for you, | 53:34 | |
this is your decision that no one's forcing me on you, | 53:36 | |
so it's your call." | 53:42 | |
And that seemed to resonate with him. | 53:44 | |
And he said, "Okay." | 53:47 | |
And I said, and another thing is... | 53:48 | |
He said, "Well, I don't want to any trial, I don't want..." | 53:52 | |
I said, "Okay we're not worried about trial right now, | 53:54 | |
my focus is on your treatment, | 53:58 | |
and the conditions you've been subjected to, | 54:03 | |
and this system is illegal, is unfair. | 54:08 | |
So what I wanna do is focus on challenging | 54:15 | |
the legality of the system and trying to prevent this trial, | 54:18 | |
and to stop this whole thing, | 54:22 | |
and improve the conditions for you. | 54:23 | |
And so okay, will you let me represent you | 54:26 | |
for those purposes not for trial?" | 54:29 | |
And he said, "Okay, all right." | 54:32 | |
So when the arraignment started | 54:33 | |
that's what I told the judge. | 54:36 | |
I said, "You know we've reached an agreement with my client, | 54:38 | |
I wanna explain it to you." | 54:42 | |
And he knew things were very delicate. | 54:43 | |
And that I just was brand new, | 54:47 | |
and I was trying to get something going here. | 54:48 | |
And it was a Colonel Peter Brownback, | 54:52 | |
that was a judge at the time and he had been retired | 54:56 | |
and had been recalled from retirement, | 55:00 | |
from Florida and he was a kind of a good old Southern boy | 55:03 | |
and a very nice guy. | 55:09 | |
And he said, "All right, well, what's the agreement?" | 55:13 | |
I said, "Well, Mr. Jawad has agreed | 55:16 | |
to allow me to represent him | 55:20 | |
for the limited purposes of challenging the lawfulness | 55:22 | |
of the military commissions, | 55:26 | |
and the legitimacy of the military commissions and the, | 55:29 | |
his treatment and the conditions." | 55:34 | |
And he said, "Okay, trial counsel" | 55:38 | |
that's what they call the prosecutor, | 55:42 | |
"Trial counsel how do you feel about that?" | 55:43 | |
And it was Colonel Vanderbilt, | 55:45 | |
and he said, "That's outrageous, | 55:48 | |
that's the most ridiculous thing I've ever heard. | 55:50 | |
What is this not for trial." | 55:51 | |
And, "a ridiculous" I think it was the word he used. | 55:57 | |
And judge Brownback looked at him and he says | 56:00 | |
"You will retract that." | 56:06 | |
And I said, "Okay, I retract that ridiculous." | 56:10 | |
And judge Brownback says | 56:17 | |
"Well, I think it's very reasonable, | 56:18 | |
and so that's what we're gonna proceed on that basis." | 56:20 | |
Again, he knew how tenuous it was, | 56:23 | |
and they were having a big problem with detainees boycotting | 56:27 | |
and it was stalling the whole thing and making it into more | 56:32 | |
of a laughingstock than it already was. | 56:36 | |
So, if there was a chance | 56:37 | |
that this guy would come voluntarily, | 56:40 | |
and cooperate with his lawyer, | 56:44 | |
he'd wanna do everything he could to foster that. | 56:44 | |
And Colonel Vanderbilt later came to understand that, | 56:48 | |
but, at the time he was, really itching to get going. | 56:51 | |
So another thing, (sighs) | 56:59 | |
well, the first day of May 7th, | 57:03 | |
I had arraignments with both clients same day. | 57:09 | |
So the first in the morning, | 57:11 | |
was Mr. al-Bahlul and they decided to use | 57:15 | |
the new courtroom was gonna be a test trial run, | 57:18 | |
for the expeditionary legal complex that they had built. | 57:22 | |
It was purpose-built for the 9/11 trial. | 57:26 | |
It had six rows of defense tables, | 57:29 | |
'cause they're supposed to be six, 9/11 defendants. | 57:32 | |
It was a great big sort of warehouse looking building, | 57:34 | |
and the 9/11 arraignment was gonna be a week or two later. | 57:37 | |
So they wanted to try out the courtroom before then | 57:42 | |
and work out the glitches, | 57:46 | |
and it was a good thing they did | 57:48 | |
because they were a lot of glitches. | 57:48 | |
And so it was a very first time, and al-Bahlul had told me | 57:50 | |
that he would let me know prior to the hearing, | 57:54 | |
whether he was gonna let me represent them or not. | 57:57 | |
So I went back to see him in the little holding cell | 57:59 | |
and he said, | 58:02 | |
"Well, I've made my decision, | 58:05 | |
you're not gonna represent me. | 58:08 | |
In fact, I don't even want you to sit with me, | 58:10 | |
I understand there's multiple rows of tables, | 58:15 | |
I want you to sit in another table." | 58:18 | |
I said, "Well, I'm not sure the judge | 58:23 | |
is gonna let me do that, but I'll ask him." | 58:24 | |
He said, "Okay, well, I understand, | 58:27 | |
if the judge orders you to do something | 58:28 | |
you have to do that you're in the military, | 58:29 | |
but I wanna clear that I have nothing to do with you." | 58:31 | |
I said, "Okay, fair enough." | 58:34 | |
So I went and I told the judge, | 58:38 | |
that he didn't wanna sit with me. | 58:40 | |
He said, "Fine, you can sit where you want." | 58:42 | |
So, I sat in the second row, | 58:44 | |
Mr. al-Bahlul sat with my interpreter, | 58:47 | |
Mr. al-Bahlul was brought in, sat in the front row. | 58:50 | |
And they took off his shackles, | 58:54 | |
because he was a compliant prisoner, | 58:57 | |
and they let him, he was sitting there | 58:59 | |
at the end of the table. | 59:00 | |
The arraignment commences, | 59:01 | |
and right away, they started having sound problems. | 59:03 | |
The court interpreter, | 59:06 | |
who's is supposed to be doing a simultaneous translation | 59:09 | |
can't hear the judge, | 59:13 | |
and the microphone, it was cutting in and out. | 59:14 | |
The sound is not working also in the spectator gallery, | 59:18 | |
they have a walled off or there's a glass window. | 59:21 | |
So the spectators are an enclosed gallery | 59:25 | |
where the sound can be shut off. | 59:28 | |
So if there's a discussion of classified information, | 59:30 | |
they can just turn the sound off, | 59:34 | |
and they can hear what's going on. | 59:36 | |
But they couldn't hear it was unclassified | 59:37 | |
and they couldn't hear what was going on. | 59:40 | |
And there was the picture, they also have a feed, | 59:41 | |
'cause they're seeing the backs of us, | 59:45 | |
but there's a camera that would focus on different speakers, | 59:47 | |
but that was frozen. | 59:51 | |
And so they were hiring all kinds of technical glitches. | 59:53 | |
And Mr. al-Bahlul when he heard | 59:55 | |
that the press couldn't hear, | 1:00:00 | |
he said, "You're trying to stifle me, | 1:00:02 | |
you're trying to silence me, so the press can't hear me." | 1:00:03 | |
And he was a... | 1:00:05 | |
What he was accused of was being | 1:00:09 | |
the propaganda minister for Al Qaeda. | 1:00:11 | |
He was a sort of a personal secretary | 1:00:15 | |
to Osama bin Laden and part of their media team. | 1:00:18 | |
And he created propaganda products, | 1:00:21 | |
recruiting videos. | 1:00:26 | |
And so he considered himself a media PR guy, | 1:00:29 | |
and so he took advantage of the situation. | 1:00:35 | |
But since the microphone didn't work, | 1:00:39 | |
the judge started moving around, | 1:00:43 | |
testing out different microphones to see what would work, | 1:00:46 | |
and he went to the witness box and says, | 1:00:49 | |
"Does this one work, can you hear me?" | 1:00:51 | |
And the interpreter says, "No, that was no good." | 1:00:53 | |
And he starts wandering around and eventually | 1:00:55 | |
he sits at the table where I normally would have sat | 1:00:57 | |
in the front row. | 1:01:02 | |
Mr. al-Bahlul is at one end of the table, | 1:01:03 | |
he sits down next to him at the other end of the table | 1:01:05 | |
and says, "Does this microphone work?" | 1:01:08 | |
They said, "Yes, this one works." | 1:01:09 | |
He said, "Fine, I'll conduct the hearing from here." | 1:01:10 | |
So he's sitting at the table. | 1:01:13 | |
Now, I should say that he knew al-Bahlul, | 1:01:15 | |
because they had started to try Mr. al-Bahlul | 1:01:19 | |
a couple of times early, | 1:01:22 | |
in the earlier rounds of the military commissions, | 1:01:23 | |
and he had been the judge for those two. | 1:01:26 | |
So they had sort of a little bit of a rapport themselves. | 1:01:28 | |
But in the midst of this hearing, | 1:01:34 | |
there was a blackout, the power went out, | 1:01:38 | |
the lights went out completely. | 1:01:41 | |
And here's the judge sitting at the table with the terrorist | 1:01:44 | |
who's unshackled, maybe six feet away from him. | 1:01:49 | |
And then, the guards descended on Mr. al-Bahlul, | 1:01:54 | |
he never moved, I mean, he wasn't gonna attack anybody, | 1:01:57 | |
but he was tensed there. | 1:02:00 | |
And the judge says, "When are these lights | 1:02:02 | |
gonna come back on?" | 1:02:05 | |
I don't know judge there's a power failure | 1:02:08 | |
well, I can see that. | 1:02:10 | |
And the only light was from a little | 1:02:12 | |
green glowing exit sign near, | 1:02:15 | |
and the judge asked the trial counsel, | 1:02:19 | |
if, "Can you see?" | 1:02:23 | |
Cause he was in the middle of reading the charges | 1:02:25 | |
and they were long. | 1:02:28 | |
He said, "Yeah, I guess I can Judge." | 1:02:29 | |
He said, "Fine, continue." | 1:02:32 | |
And so he sat there in the dark, | 1:02:35 | |
with the exit light, trying to read the charges. | 1:02:36 | |
And eventually the lights came back on. | 1:02:41 | |
But so it was the headlines, | 1:02:44 | |
the next day were all about technical glitches | 1:02:47 | |
mar first Guantanamo hearing and all this. | 1:02:50 | |
And they asked me, there was a press conference afterwards, | 1:02:54 | |
and they asked me what I thought of the new courtroom. | 1:02:57 | |
And I said, "I think they should have hired Mr. al-Bahlul | 1:03:01 | |
to do a sound check." | 1:03:05 | |
Which got in the Miami Herald, | 1:03:08 | |
so the judge thought that was pretty funny. | 1:03:10 | |
But I had to go directly from that hearing, | 1:03:17 | |
and he... | 1:03:19 | |
Oh, the upshot of that hearing | 1:03:20 | |
I should say was that Mr. al-Bahlul was, | 1:03:21 | |
they advised him of his rights to counsel, | 1:03:28 | |
and he didn't say anything. | 1:03:30 | |
And the judge said, "If you don't say anything | 1:03:32 | |
I'm gonna appoint major Frakt to represent you." | 1:03:35 | |
And he was boycotting, | 1:03:37 | |
he was refusing to say anything. | 1:03:39 | |
So finally I said, "Your honor could you advise him | 1:03:42 | |
of his right to self-representation." | 1:03:45 | |
Because that was a new right that he'd been included | 1:03:47 | |
in the Military Commissions Act. | 1:03:49 | |
He said, "Okay." | 1:03:51 | |
So we advise him of this right, | 1:03:52 | |
and finally, Mr. al-Bahlul, started talking, | 1:03:53 | |
and he went and actually gave this long rambling speech | 1:03:56 | |
that kind of a political diatribe. | 1:04:00 | |
And at the end of it, the judge said, | 1:04:03 | |
"Well, okay so what do you want to do? | 1:04:05 | |
Do you wanna represent yourself?" | 1:04:08 | |
And then he went and I said, | 1:04:09 | |
"Well I think that's what he was saying your honor | 1:04:11 | |
he wants to represent himself." | 1:04:13 | |
And he said, "Okay, prosecution, what is your opinion?" | 1:04:16 | |
They said, "That sure, fine." | 1:04:19 | |
So he assigned him to represent himself | 1:04:21 | |
and he assigned me as standby counsel. | 1:04:23 | |
So someone prepared to step in and represent him, | 1:04:26 | |
if he was unable to represent himself | 1:04:29 | |
or if his right to represent himself as revoked for, | 1:04:31 | |
him being unruly or something like that. | 1:04:34 | |
So that was the end of that hearing | 1:04:37 | |
and I was basically off the hook, | 1:04:42 | |
I was not really representing him anymore. | 1:04:44 | |
Then I went to the Jawad hearing, | 1:04:48 | |
and he did accept me and so by end of day one, | 1:04:53 | |
I have one and a half clients or, | 1:04:57 | |
but the judge | 1:05:02 | |
wanted to set the schedule | 1:05:07 | |
for future proceedings in the Jawad case. | 1:05:08 | |
And he said, "All right, in a month," | 1:05:10 | |
or I think five or six weeks, | 1:05:13 | |
"we're gonna have a hearing on legal motions | 1:05:16 | |
in any law motions you want to make." | 1:05:20 | |
And he gave me a deadline of three weeks | 1:05:23 | |
to file all legal motions. | 1:05:25 | |
And I had not even really crack the cake's file | 1:05:30 | |
at that point. | 1:05:34 | |
I mean, I didn't even know the facts. | 1:05:34 | |
I mean, what he was accused of | 1:05:36 | |
but I hadn't even begun to delve into the evidence, | 1:05:38 | |
and there was a thick file of information. | 1:05:42 | |
So the next three weeks, and I had | 1:05:46 | |
also I had sent a detailed discovery request | 1:05:49 | |
to Colonel Vanderbilt, | 1:05:52 | |
of additional things I wanted to look at. | 1:05:54 | |
And those started to pour in over the next couple of weeks. | 1:05:56 | |
And there was a couple things that were very significant | 1:06:00 | |
in the discovery documents | 1:06:04 | |
that the Colonel Vanderbilt sent me. | 1:06:06 | |
One of the things that then Mr. Jawad had told me, | 1:06:11 | |
was I had asked him about how he'd been treated, | 1:06:15 | |
what was the conditions like? | 1:06:20 | |
And he had a number of complaints about it, | 1:06:22 | |
but one thing that he had talked about | 1:06:25 | |
that it didn't really make any sense to me, | 1:06:27 | |
was he said that there was a time when they would come | 1:06:29 | |
and they would just wake him up | 1:06:33 | |
and they would move him from one cell | 1:06:34 | |
and they would move him into another cell, | 1:06:37 | |
and they would wake him up, and it was like, | 1:06:37 | |
that was a very disturbing. | 1:06:41 | |
And I thought they were saying | 1:06:44 | |
that they just moved him a lot and he didn't like that | 1:06:45 | |
but, I really didn't know what he was talking about. | 1:06:48 | |
Beatings I understood and cold I understood | 1:06:53 | |
and not taking away his personal items and things, | 1:06:56 | |
but I couldn't understand this what he meant | 1:07:01 | |
by the whole moving thing. | 1:07:04 | |
Well, in the discovery that Colonel Vanderbilt send me | 1:07:05 | |
was something called | 1:07:08 | |
the Detainee Information Management System, | 1:07:09 | |
the DIMS records. | 1:07:12 | |
And this was basically a log | 1:07:14 | |
of everything that happens to an individual detainee. | 1:07:16 | |
And these are not classified, | 1:07:19 | |
or some may be but the ones that I were given were not. | 1:07:22 | |
And it showed, so if the prison psychologist comes by, | 1:07:26 | |
or the chaplain or the doctor where he goes out of itself | 1:07:30 | |
for a doctor visit or he goes for a shower | 1:07:34 | |
or he go to his room or he refuses a meal. | 1:07:36 | |
Everything is documented in, | 1:07:39 | |
under their detainee a serial number | 1:07:42 | |
and it's logged into the computer. | 1:07:46 | |
And if they move from one prison camp to another | 1:07:48 | |
or get re-assigned to a new cell block, or what have you. | 1:07:50 | |
So I am pouring over these, | 1:07:54 | |
years worth of records to try to get a picture | 1:07:56 | |
of what his life was like. | 1:07:58 | |
And I came across some very odd entries, | 1:07:59 | |
a series of entries, | 1:08:04 | |
and they weren't all in chronological order, | 1:08:07 | |
so it took me a while to start building a spreadsheet | 1:08:09 | |
to put things in chronological order. | 1:08:12 | |
And what I found was that he had been moved back and forth | 1:08:14 | |
from one cell to another, 112 times | 1:08:19 | |
in a 14 day period. | 1:08:24 | |
So on average, in less than every three hours, | 1:08:27 | |
it was like 247. | 1:08:30 | |
And I'm like, "What is this exactly? | 1:08:33 | |
And why would they do that?" | 1:08:35 | |
And there was a code for each entry | 1:08:38 | |
and one of the 112 entries, | 1:08:44 | |
most, I think 109 of them said, special move or SM. | 1:08:49 | |
So that didn't tell me anything. | 1:08:57 | |
But one of the entries said frequent flyer, | 1:09:01 | |
and two set FF. | 1:09:05 | |
and I thought I'd heard or read somewhere | 1:09:09 | |
something about a frequent flyer, | 1:09:11 | |
I didn't know what it is, so I started to research on it. | 1:09:14 | |
And I found references to it in a couple of reports of it, | 1:09:17 | |
that there had been investigations into detainee abuse. | 1:09:21 | |
There was a church report, | 1:09:24 | |
and something called the Schmidt-Furlow Report, | 1:09:26 | |
named after the generals who conducted the investigation. | 1:09:29 | |
And they referenced this frequent flyer program | 1:09:33 | |
as a sleep deprivation program, | 1:09:35 | |
that they considered to be abusive. | 1:09:40 | |
And the report that they wrote | 1:09:42 | |
indicated that the program had had been stopped, | 1:09:44 | |
by then Brigadier General Jay Hood | 1:09:48 | |
who was the Commander of Joint Task Force, Guantanamo. | 1:09:51 | |
The program had been stopped in March, 2004, | 1:09:54 | |
because it was abusive. | 1:10:00 | |
And the problem was that the records that I had | 1:10:04 | |
for Jawad show that this had happened in May, 2004. | 1:10:08 | |
So the official story that had been stopped | 1:10:12 | |
wasn't jiving with the record. | 1:10:14 | |
So I-- | 1:10:16 | |
and there was other abuse that he experienced, | 1:10:19 | |
but this I had a provable record | 1:10:22 | |
of something that was just outrageous | 1:10:25 | |
that they were moving this kid. | 1:10:27 | |
And at the time he would have been 16, 17 years old, | 1:10:29 | |
back and forth from cell to cell for no apparent reason, | 1:10:34 | |
other than to deprive him of sleep. | 1:10:40 | |
And sleep deprivation is a form of torture. | 1:10:42 | |
I mean, there was plenty of case law on it, | 1:10:47 | |
there was a international law on it. | 1:10:50 | |
Army regulations said quite specifically | 1:10:53 | |
that sleep deprivation was torture. | 1:10:55 | |
So I wrote this legal motion to have the... | 1:10:58 | |
I asked to have the case dismissed on the basis that, | 1:11:03 | |
that he had been tortured by the government | 1:11:06 | |
and the U.S. therefore should forfeit the right | 1:11:09 | |
to prosecute him. | 1:11:12 | |
I should say at the time, I was assuming | 1:11:14 | |
that Mohammed was guilty. | 1:11:21 | |
And what he was accused of was, throwing a hand grenade | 1:11:23 | |
that had injured two U.S. service members | 1:11:28 | |
and an Afghan interpreter. | 1:11:30 | |
They were driving in a Jeep in a crowded, bazaar in Kabul. | 1:11:32 | |
When someone threw a hand grenade into the Jeep exploded | 1:11:39 | |
it didn't kill them, but it injured them. | 1:11:42 | |
And in ensuing panic Mohammad had been arrested | 1:11:44 | |
and supposedly had had confessed repeatedly. | 1:11:49 | |
And so I assumed for a couple of reasons that he was guilty. | 1:11:53 | |
One was that as in my experience as a defense counsel, | 1:11:59 | |
most people are guilty, | 1:12:04 | |
that generally as a general practice | 1:12:06 | |
the government doesn't go around charging people | 1:12:08 | |
with crimes they didn't commit, | 1:12:10 | |
it does happen but, most of them are guilty of something. | 1:12:11 | |
And but more importantly, this was a case | 1:12:15 | |
that the government had six years to prepare. | 1:12:20 | |
He was the fourth person charged in Guantanamo. | 1:12:24 | |
He was a juvenile and it was very controversial | 1:12:27 | |
to be charging juveniles at all. | 1:12:35 | |
So I thought, well, they must have a very strong case. | 1:12:36 | |
And if they're leading with this case, | 1:12:39 | |
they must think that they have a really good case. | 1:12:41 | |
You don't wanna go with something weak, | 1:12:45 | |
but those assumptions proved to be incorrect. | 1:12:49 | |
And I ultimately came to believe that he was innocent | 1:12:54 | |
and none of the evidence | 1:12:58 | |
that they claimed to have really panned out | 1:12:59 | |
to be was what it purported to be. | 1:13:02 | |
Interviewer | Can I interrupt. | 1:13:06 |
- | Yes. | 1:13:07 |
Interviewer | In terms of | |
the frequent flyer are you the person who first revealed | 1:13:08 | |
that he was a frequent flyer. | 1:13:11 | |
- | Yes, oh yes, I mean, | 1:13:16 |
when I filed this motion and fortunately | 1:13:19 | |
the defense department did release | 1:13:23 | |
that information put it on their public website. | 1:13:26 | |
My motion there was some redactions | 1:13:29 | |
but it was out there, | 1:13:31 | |
the spreadsheet that I created was on their website. | 1:13:34 | |
So, and that hearing was well covered by the press. | 1:13:36 | |
And I mean, it wasn't the first time | 1:13:41 | |
that anyone had heard of the frequent flyer program, | 1:13:44 | |
but it was the first time that it became known | 1:13:46 | |
that the frequent flyer program had continued after the date | 1:13:49 | |
that it supposedly stopped. | 1:13:52 | |
And there was an article in the Washington Post, | 1:13:53 | |
in July, June, or July of 2008 that exposed that, | 1:13:57 | |
with some help from me that there | 1:14:04 | |
were a number of other people that were subject | 1:14:06 | |
to the frequent flyer program after it had stopped. | 1:14:08 | |
And we were able to track down | 1:14:11 | |
with Colonel Vanderbilt's help, | 1:14:13 | |
the person who was in charge of administrating | 1:14:15 | |
of the frequent flyer program during this period. | 1:14:18 | |
And he said that it continued at least until May, 2005, | 1:14:23 | |
and that it was standard operating procedure, | 1:14:27 | |
and it was done to dozens of detainees. | 1:14:30 | |
And it turned out that there were actually | 1:14:33 | |
two frequent flyer programs. | 1:14:35 | |
There was a frequent flyer program that was used | 1:14:38 | |
for interrogation purposes | 1:14:41 | |
to set the conditions for interrogation | 1:14:44 | |
to soften the detainee | 1:14:48 | |
or disorient them, or weaken their resistance. | 1:14:50 | |
And then there was another frequent flyer program | 1:14:54 | |
that was basically the punish the detainees. | 1:14:58 | |
And that's what they were doing to Jawad, | 1:15:03 | |
because they did not interrogate him | 1:15:05 | |
during the frequent flyer program. | 1:15:06 | |
They didn't interrogate him for months before | 1:15:08 | |
or months after. | 1:15:10 | |
So it had nothing to do with intelligence gathering | 1:15:11 | |
it was purely, | 1:15:14 | |
I mean, I call it sadistic, | 1:15:17 | |
but it was just abuse for the sake of | 1:15:19 | |
controlling the prisoner, punishing the prisoner. | 1:15:23 | |
But there was nothing in his records that indicated | 1:15:27 | |
that he was a significant disciplinary problem | 1:15:30 | |
or merited any particular punishment, certainly. | 1:15:33 | |
And nothing, there would be no legal justification | 1:15:36 | |
for using an inhumane method like this. | 1:15:39 | |
Interviewer | Who made this decisions (indistinct)? | 1:15:44 |
- | Well, the person who testified was an army major | 1:15:46 |
who had run the program said that, | 1:15:49 | |
it was the head of the detention operations group, | 1:15:54 | |
who was Colonel Nelson Cannon, | 1:15:58 | |
now a Major General Nelson Cannon. | 1:16:01 | |
So these people have all been promoted, | 1:16:04 | |
gone on to great careers, | 1:16:05 | |
but it was also with the full knowledge | 1:16:07 | |
of General Hood, that his claim, | 1:16:09 | |
and I met with General Hood and he stood there, | 1:16:11 | |
across the table and just lied to me, | 1:16:14 | |
claiming that he had no idea what this could be, | 1:16:17 | |
it must be some data entry error, | 1:16:21 | |
couldn't have possibly happened, | 1:16:23 | |
had no idea. | 1:16:26 | |
I couldn't understand it, couldn't explain it. | 1:16:27 | |
The major said that each candidate for this program | 1:16:31 | |
was fully vetted and approved by the senior staff | 1:16:34 | |
and, medical signed off, | 1:16:36 | |
psychologist that they can handle it. | 1:16:39 | |
So, the claims that you know, | 1:16:41 | |
and the coordination involved of moving someone 112 times, | 1:16:46 | |
cause there's at least two and usually three guards involved | 1:16:50 | |
with every move, | 1:16:54 | |
this is across different shifts over a number of weeks. | 1:16:55 | |
I mean this was so something guards | 1:16:57 | |
could just do on their own. | 1:16:59 | |
Interviewer | Was this decision made in the Pentagon, | 1:17:01 |
or Guantanamo, do you know? | 1:17:03 | |
- | I think it was local to Guantanamo, | 1:17:05 |
but they should have been coordinating | 1:17:09 | |
with the SOUTHCOM commander. | 1:17:12 | |
And nothing should have been going on | 1:17:17 | |
without the knowledge of somebody in the Pentagon, I mean. | 1:17:18 | |
Interviewer | Would doctors have a presence, do you know? | 1:17:21 |
- | During the frequent fire program? | 1:17:24 |
Interviewer | Mm-hmm. | 1:17:25 |
- | Well, he was visited by a psychiatric technician | 1:17:26 |
during the program, but- | 1:17:32 | |
Interviewer | For what purpose? | 1:17:34 |
- | The purpose was not stated, but the psych techs | 1:17:36 |
as they were called would do mental health checks on people. | 1:17:42 | |
So I don't know if it was just happened to be, | 1:17:47 | |
that he was in the cell block that day | 1:17:50 | |
or if it was specifically part of the program. | 1:17:53 | |
The problem with this program, I mean, | 1:17:55 | |
other than its very existence is that, | 1:17:57 | |
there was no documentation about it, | 1:18:00 | |
even though it was standard operating procedure, | 1:18:02 | |
nothing was ever written down. | 1:18:04 | |
I think they recognized that it was illegal, | 1:18:06 | |
no they didn't wanna have a paper trail surrounding it. | 1:18:09 | |
Interviewer | Could you had it in his day-to-day diary. | 1:18:12 |
- | All right, but they weren't supposed | 1:18:15 |
to use the term frequent flyer, and that was a slip up, | 1:18:17 | |
because the guards use that term, | 1:18:21 | |
it becomes the euphemism for the program. | 1:18:23 | |
And someone had accidentally entered that term | 1:18:25 | |
once out of 112 times. | 1:18:30 | |
And that was the only reason I was able | 1:18:32 | |
to figure out what it was. | 1:18:33 | |
But- | 1:18:37 | |
Interviewer | Your feeling of Guantanamo | 1:18:39 |
and the rule of law what changes | 1:18:41 | |
as the days and weeks and months were on, | 1:18:44 | |
while you were there? | 1:18:47 | |
- | Well, yes, there was a couple of myths | 1:18:49 |
that were still being spread that I came to disbelieve | 1:18:53 | |
and tried to disabuse people of, | 1:19:01 | |
which was that, | 1:19:03 | |
only the high value detainees were tortured. | 1:19:05 | |
I mean, at first it was, "We don't torture anybody." | 1:19:09 | |
And then it was, | 1:19:11 | |
well we only torture a few select people. | 1:19:12 | |
And only people believe to possess critical intelligence. | 1:19:15 | |
People that could save American lives | 1:19:19 | |
because they knew about the next terrorist plot. | 1:19:21 | |
And that something that most Americans | 1:19:24 | |
didn't have a problem with even favored. | 1:19:27 | |
Okay, well, if he could stop the next 9/11 | 1:19:29 | |
or something, a little torture, that's fine. | 1:19:31 | |
But if they knew | 1:19:35 | |
that we were actually torturing teenage kids, | 1:19:36 | |
that were known to possess no intelligence value | 1:19:40 | |
and that was admitted at the trial | 1:19:43 | |
and it was a factual finding made by the judge | 1:19:44 | |
that there was no intelligence value for Jawad. | 1:19:46 | |
And of course, as I said he wasn't interrogated | 1:19:50 | |
surrounding this incident, this frequent flyer program. | 1:19:53 | |
So if they knew that we were actually torturing children | 1:19:56 | |
for no good reason, | 1:20:01 | |
and that it was widespread. | 1:20:04 | |
And I mean, you will not find a detainee at Guantanamo | 1:20:05 | |
who was not abused in some way, | 1:20:10 | |
and usually in multiple ways. | 1:20:13 | |
And most of them, | 1:20:15 | |
not only were not terrorist and not high-value detainees, | 1:20:20 | |
but we're innocent of any wrongdoing at all. | 1:20:23 | |
So we not only wrongfully imprisoned several hundred people, | 1:20:28 | |
but we abused and tortured scores of them | 1:20:32 | |
into varying degrees. | 1:20:37 | |
Jawad was thoroughly mistreated at Bagram prison, | 1:20:39 | |
he was there for 45 days or 49 days | 1:20:45 | |
from December to February, 2002 to 2003. | 1:20:49 | |
And that was a time when the worst abuses were going on, | 1:20:54 | |
when two detainees were beaten to death | 1:20:59 | |
and just prior to when he arrived in December, 2002. | 1:21:03 | |
So the military police company that was there | 1:21:07 | |
at the time was, | 1:21:10 | |
which had a couple of dozen admitted people, | 1:21:12 | |
guards who later admitted to abusing detainees, | 1:21:16 | |
they were beating people, Jawad was pushed down the stairs, | 1:21:22 | |
while he was hooded and shackled, | 1:21:25 | |
he was chained to the door, he was with his hands up high, | 1:21:28 | |
in a very uncomfortable positions, it was extremely cold, | 1:21:35 | |
and so he was hit repeatedly, | 1:21:40 | |
and the army, | 1:21:45 | |
what's, I'm trying to think although | 1:21:54 | |
with the army interrogators are called, | 1:21:55 | |
CID that conducted the investigation | 1:22:01 | |
into the abuses of Abu Ghraib, | 1:22:04 | |
said that Jawad statements were completely consistent | 1:22:06 | |
with what all the other detainees said | 1:22:08 | |
and what the guards admitted to. | 1:22:11 | |
So, there was substantial evidence | 1:22:15 | |
that he was abused and that did change my view. | 1:22:16 | |
Because I had believed that we would mistreat people | 1:22:19 | |
that were serious Al-Qaida suspects, | 1:22:29 | |
and that we thought might know something | 1:22:33 | |
but it was very disappointing to learn | 1:22:35 | |
that it was standard operating procedure to abuse detainees. | 1:22:38 | |
And I attributed it all to the decision, | 1:22:43 | |
not to apply the Geneva Conventions, | 1:22:47 | |
and to say the humane treatment was not required | 1:22:49 | |
that it was policy. | 1:22:52 | |
Okay, as a general matter, we'll treat people humanely, | 1:22:55 | |
but if there's a military need or an intelligence need | 1:22:57 | |
not to treat them humanely, then we don't have to. | 1:23:01 | |
And so that just left the door open, | 1:23:04 | |
and created an atmosphere in which anything was possible | 1:23:08 | |
in which... | 1:23:11 | |
And then there was so much pressure to get intelligence | 1:23:12 | |
and the mantra of these are the most dangerous people | 1:23:15 | |
and these are terrorists. | 1:23:20 | |
the guards didn't know different, so they, | 1:23:23 | |
they treated them accordingly and they were, | 1:23:26 | |
the whole numbering people I think is dehumanizing, | 1:23:29 | |
they were never referred to by their names, | 1:23:37 | |
it was by their number. | 1:23:39 | |
Guards had their names removed ostensibly | 1:23:41 | |
for security purposes, | 1:23:44 | |
but they became just numberless automatons, | 1:23:45 | |
and it was a very dehumanizing regime. | 1:23:49 | |
And at least in the early years, | 1:23:53 | |
people weren't particularly well trained | 1:23:55 | |
the facilities weren't very good, | 1:23:58 | |
over time the training has improved, | 1:23:59 | |
the facilities have improved. | 1:24:01 | |
I think now in 2010, under the Obama administration, | 1:24:03 | |
the facilities are Geneva Convention compliant, | 1:24:07 | |
they're currently humane. | 1:24:12 | |
The problem is that you have years of | 1:24:14 | |
abuse and a lot of people with psychiatric problems, | 1:24:19 | |
post-traumatic stress disorder that have not been addressed. | 1:24:22 | |
So- | 1:24:26 | |
Interviewer | So your view of Guantanamo changed | 1:24:28 |
over time and... | 1:24:31 | |
- | Well, I was never a big fan of Guantanamo, | 1:24:33 |
but I came to see it, | 1:24:36 | |
I felt that it was there, | 1:24:39 | |
it existed to create a place that was beyond the reach | 1:24:43 | |
of the law. | 1:24:49 | |
That was a legal black hole where no one was entitled | 1:24:50 | |
to access to courts, to lawyers, to, | 1:24:55 | |
they wouldn't be told why they were being held there, | 1:24:59 | |
what they were accused of. | 1:25:02 | |
And the more I learned about how many people were innocent, | 1:25:03 | |
and how the senior leadership | 1:25:07 | |
of the United States government knew | 1:25:10 | |
that they were innocent and decided to hold them anyway, | 1:25:12 | |
for political purposes, it was just shameless, | 1:25:15 | |
and I was ashamed of it. | 1:25:18 | |
Interviewer | How did you learn | 1:25:22 |
that they were innocent from other lawyers? | 1:25:23 | |
- | Well, I mean, the numbers speak for themselves. | 1:25:27 |
The Bush administration let 2/3 of the detainees go, | 1:25:30 | |
and they were not just letting people go, | 1:25:35 | |
if there was even a shred of information that would suggest | 1:25:39 | |
that they were a threat, they were held. | 1:25:42 | |
And you can see that because when | 1:25:45 | |
the Bush administration fought tooth and nail | 1:25:48 | |
to prevent the detainees from having any rights, | 1:25:50 | |
and particularly habeas corpus rights. | 1:25:53 | |
And when the habeas corpus cases finally went to court, | 1:25:55 | |
six, seven years later | 1:25:59 | |
and the people that were left, | 1:26:01 | |
after two-thirds to three-quarters | 1:26:04 | |
have already been released. | 1:26:07 | |
So supposedly these are the drags, | 1:26:09 | |
these are the worst of the worst, these are the people | 1:26:11 | |
that we really have a good reason to hold. | 1:26:13 | |
And then three quarters of those people win, | 1:26:15 | |
federal judges say, | 1:26:19 | |
the government can't even prove by preponderance | 1:26:21 | |
of the evidence, more likely than not | 1:26:23 | |
that there's any legal basis to hold these people. | 1:26:25 | |
So that, | 1:26:28 | |
I mean, those numbers, it's not just my personal opinion, | 1:26:31 | |
that people are innocent. | 1:26:35 | |
This is what other people reviewing the facts | 1:26:37 | |
who have concluded, | 1:26:40 | |
and people who are inclined to give the government | 1:26:42 | |
the benefit of the doubt. | 1:26:45 | |
And so, of course, one of my clients I did, | 1:26:47 | |
I started to see how it could happen. | 1:26:52 | |
As I learned about how bounties were offered | 1:26:55 | |
to turn people in. | 1:26:59 | |
But in Jawad's case is very instructive because, | 1:27:01 | |
as I said he was accused of throwing this hand grenade, | 1:27:05 | |
he was arrested. | 1:27:07 | |
The Afghan, the Americans military in Kabul, | 1:27:09 | |
went to the Afghans and they said, | 1:27:15 | |
"We want, whoever was responsible for that attack, | 1:27:16 | |
we want them, turn them over. | 1:27:18 | |
Our good people were injured, were angry, | 1:27:20 | |
that's a terrorist, we wanna know, | 1:27:22 | |
we wanna interrogate them." | 1:27:24 | |
Now, several people were arrested, | 1:27:25 | |
after this hand grenade attack, | 1:27:29 | |
but the Afghans told the Americans, | 1:27:32 | |
"Oh we've got the guy responsible, he's confessed, | 1:27:35 | |
here he is." | 1:27:38 | |
And they gave Muhammad Jawad. | 1:27:39 | |
The next day, the Afghan Interior Minister | 1:27:42 | |
held a press conference, | 1:27:45 | |
and said, "We captured three foreign nationals | 1:27:46 | |
who were responsible for that, | 1:27:49 | |
three adults they've all confessed." | 1:27:52 | |
The Americans didn't follow up, | 1:27:54 | |
they thought they had their guy, it was this teenage kid | 1:27:56 | |
and that was the end of it. | 1:27:58 | |
So having been told that he was guilty and confessing | 1:28:01 | |
they were given us handwritten confession. | 1:28:05 | |
This was (laughs). | 1:28:08 | |
During the, | 1:28:11 | |
as the pre-trial litigation was progressing, | 1:28:13 | |
and we were approaching having a suppression hearing. | 1:28:18 | |
I asked my Pashto interpreter, | 1:28:22 | |
if he would review this handwritten confession | 1:28:25 | |
and that we were given a translation of it, | 1:28:28 | |
and I said, "Can you look at this | 1:28:28 | |
and make sure that the translation is accurate?" | 1:28:30 | |
And he said, "Okay." | 1:28:33 | |
And he looks at, he said, "Well, I can't do it." | 1:28:36 | |
I said, "Why not?" | 1:28:37 | |
He said, "This is not written in Pashto. | 1:28:39 | |
This is written in Farsi." | 1:28:41 | |
Now my client Mohammed was illiterate, | 1:28:44 | |
he couldn't read, he couldn't write. | 1:28:48 | |
And he didn't speak Farsi or Dari the Afghan dialect. | 1:28:52 | |
So this confession I knew was not written by him. | 1:28:58 | |
But now I find out it's written in another language. | 1:29:03 | |
And I go to prosecutor, "This is your evidence?" | 1:29:07 | |
And as Jawad explain it, he said he was told, | 1:29:12 | |
"We have, here's your release paperwork, | 1:29:15 | |
put your thumb print here." | 1:29:17 | |
Because he couldn't sign his name. | 1:29:19 | |
So he put his time print on it. | 1:29:21 | |
That was his, | 1:29:22 | |
turned out that he was thumb printing | 1:29:23 | |
the confession that they had written for him | 1:29:25 | |
in another language. | 1:29:27 | |
He's taken across town to the American prison, | 1:29:31 | |
American military base | 1:29:36 | |
where they're gonna interrogate him further. | 1:29:38 | |
He thinks they're gonna kill him, | 1:29:41 | |
and they say, | 1:29:44 | |
"We already know you confess, you got to confess." | 1:29:45 | |
And so he confesses again. | 1:29:46 | |
This confession, by the way, | 1:29:49 | |
completely different than the Britain confession, | 1:29:51 | |
'cause he didn't even know | 1:29:54 | |
what was in the written confession to match the stories up. | 1:29:55 | |
By the way that interrogation session was videotaped, | 1:30:01 | |
but the videotape disappeared. | 1:30:07 | |
So what techniques did they use? | 1:30:09 | |
We know they used harsh techniques, | 1:30:13 | |
they're classified techniques. | 1:30:15 | |
And we think that's the reason | 1:30:19 | |
that the video tape disappeared. | 1:30:20 | |
But we did get before they interrogated him, | 1:30:23 | |
they stripped him naked | 1:30:26 | |
and they took a series of nude photographs of him. | 1:30:27 | |
So here's this 15 year old boy. | 1:30:30 | |
I mean, there's few things would be more humiliating | 1:30:33 | |
in Afghan culture than to be stripped naked, | 1:30:36 | |
in front of strangers, enemy, who's terrified. | 1:30:40 | |
He'd never seen a black person before, | 1:30:43 | |
there's big muscular African-American Marines and others, | 1:30:44 | |
I mean, he was incredibly scared. | 1:30:51 | |
They're armed, he thought he was gonna die. | 1:30:52 | |
So he told them what they wanted to hear, | 1:30:55 | |
when he was later taken to Bagram prison and to Guantanamo, | 1:31:01 | |
and he realized they weren't gonna kill him. | 1:31:05 | |
He was still scared, | 1:31:09 | |
but they interrogated him close to 60 times, | 1:31:09 | |
over the next several years. | 1:31:15 | |
He never confessed again, he always denied it. | 1:31:16 | |
So, as I came to know of these facts, | 1:31:20 | |
I came to doubt his guilt. | 1:31:25 | |
They had eye witnesses, they claim to have eye witnesses. | 1:31:29 | |
I sent my co-counsel, | 1:31:33 | |
a very courageous Marine Major Eric Montalvo, | 1:31:34 | |
went to Afghanistan, tracked down the witnesses, | 1:31:38 | |
and showed them the statements | 1:31:42 | |
that they supposedly had made. | 1:31:44 | |
They said, "We didn't make those statements, | 1:31:46 | |
that's not what we said, and that's not what happened, | 1:31:48 | |
we didn't see it." | 1:31:50 | |
And they did not have an actual eyewitness, | 1:31:51 | |
to this attack which in broad daylight | 1:31:56 | |
in the middle of a crowded public bazaar. | 1:32:00 | |
So the case started to fall apart without the confession, | 1:32:02 | |
which were clearly obtained through abusive at a minimum, | 1:32:05 | |
and the judge actually found that it was torture. | 1:32:10 | |
They had no case, and that's, it turns out | 1:32:13 | |
that many of the cases were built on | 1:32:16 | |
coerced tortured statements. | 1:32:18 | |
And people say, "Well, we can't prosecute them | 1:32:21 | |
because they're not admissible." | 1:32:23 | |
But it's not just that they're not admissible, | 1:32:24 | |
it's that they're not reliable. | 1:32:26 | |
Because people will say what you want them to say | 1:32:28 | |
when they are scared that they're gonna die | 1:32:31 | |
or their pain is being inflicted on them, | 1:32:34 | |
or what have you. | 1:32:36 | |
So I can see how it happened, | 1:32:39 | |
and the people in that, | 1:32:42 | |
the people in Afghanistan were rounding people up, | 1:32:44 | |
and sending them back to Guantanamo. | 1:32:48 | |
And they're assuming | 1:32:50 | |
that there'll be screened properly over there, | 1:32:51 | |
'cause they don't have time | 1:32:53 | |
to deal with them in Afghanistan. | 1:32:54 | |
But they weren't screening them properly | 1:32:56 | |
in Guantanamo, and they were just warehousing them. | 1:33:00 | |
Interviewer | So looking that the upshot, | 1:33:04 |
Winnie tapped, (faintly speaking). | 1:33:07 | |
- | So the upshot as I learned about this terrorism, | 1:33:10 |
the torture that it occurred, | 1:33:14 | |
as I began to have doubts about the evidence | 1:33:15 | |
as the case started to really crumble, | 1:33:17 | |
and I went to Colonel Vanderbilt | 1:33:19 | |
and I said you know this is, | 1:33:21 | |
and I discussed it with him. | 1:33:23 | |
And he started to come around and felt that | 1:33:25 | |
you can question why he was prosecuting this kid. | 1:33:32 | |
And he was very disturbed by what, | 1:33:34 | |
that he had been mistreated in this way. | 1:33:36 | |
And he tried to get his superiors to drop the case | 1:33:38 | |
or to let him plea bargain it out in some way, | 1:33:44 | |
and they just wouldn't let him. | 1:33:47 | |
So he eventually resigned and very publicly and said | 1:33:49 | |
that he could not continue to ethically prosecute this kid. | 1:33:54 | |
And that helped a lot. | 1:33:58 | |
And then the judge found Jawad to be credible. | 1:34:03 | |
He suppressed all the statements that he had made, | 1:34:06 | |
or both statements that he had made, | 1:34:09 | |
and the case started to disintegrate. | 1:34:12 | |
And then Jawad asked me to file a habeas corpus petition | 1:34:17 | |
on his behalf, | 1:34:22 | |
and I never done anything like that. | 1:34:23 | |
So I got enlisted the help | 1:34:26 | |
of the ACLU National Security Project, | 1:34:29 | |
and we filed a habeas corpus petition for him. | 1:34:32 | |
And when President Obama took office, | 1:34:38 | |
the military commissions were suspended, | 1:34:43 | |
and Jawad's case was gonna be probably the next | 1:34:46 | |
to be heard after Omar Khadr's case, | 1:34:52 | |
if it got that far. | 1:34:55 | |
But the habeas corpus petition, | 1:34:59 | |
we got a federal judge who said, | 1:35:02 | |
"Well while the military commissions are suspended, | 1:35:05 | |
let's move forward with the habeas corpus petition." | 1:35:07 | |
And she, | 1:35:10 | |
that's a district judge Ellen Segal Huvelle, | 1:35:13 | |
was not impressed with the government's evidence | 1:35:16 | |
to say the least. | 1:35:19 | |
And what was interesting is that the justice department | 1:35:20 | |
continued to rely on these torture statements | 1:35:24 | |
until she said, "Look we're not going there." | 1:35:26 | |
And they eventually changed their tune, | 1:35:30 | |
and over the course of a few months, | 1:35:34 | |
we were able to win that habeas corpus petition. | 1:35:38 | |
And so on July 30th, 2009, | 1:35:42 | |
Jawad was ordered released. | 1:35:48 | |
And three weeks later he was sent home to Afghanistan. | 1:35:51 | |
So it was a tremendous victory for justice | 1:35:55 | |
and the rule of law and for our defense team. | 1:36:01 | |
And I've kept in touch with him and | 1:36:07 | |
talking to him on the phone | 1:36:10 | |
to hear him home with his family, | 1:36:13 | |
it's just been very, very rewarding. | 1:36:15 | |
al-Bahlul, was unfortunately, | 1:36:19 | |
he did not want to be represented by me | 1:36:23 | |
and never let me do anything on his behalf. | 1:36:25 | |
And we basically sat silently through his trial, | 1:36:28 | |
he was tried, and he was convicted of all charges, | 1:36:33 | |
and was sentenced to the maximum, which was life in prison. | 1:36:37 | |
I think if I had been able to represent him, | 1:36:42 | |
I could have shed some light on some things that | 1:36:45 | |
about his mistreatment and really | 1:36:48 | |
the many of the things that he did were not war crimes | 1:36:52 | |
that he was expressing his political and religious views, | 1:36:54 | |
and they may not be very popular here in the U.S. | 1:36:58 | |
but he was a Yemeni living in Afghanistan | 1:37:03 | |
and he's entitled to those views. | 1:37:05 | |
And he certainly was not an operational terrorist | 1:37:08 | |
of any kind. | 1:37:11 | |
So that was sad. | 1:37:12 | |
But when we hear about the three people that were prosecuted | 1:37:15 | |
during the Bush era military commissions | 1:37:18 | |
he was one of them, and I had a front row seat, | 1:37:21 | |
but very frustrating sitting there, | 1:37:24 | |
at the defense table and being silent for two weeks. | 1:37:26 | |
So- | 1:37:33 | |
Interviewer | So what's the future of Guantanamo. | 1:37:34 |
And since President Obama has become, | 1:37:37 | |
taken office, do you see anything positive moving forward? | 1:37:40 | |
- | Well, there was some, I mean the initial | 1:37:45 |
order to close Guantanamo within a year was positive. | 1:37:50 | |
And there was an immediate change | 1:37:54 | |
in the treatment of detainees. | 1:37:57 | |
I will credit Obama for that, | 1:37:59 | |
in that they were immediately given | 1:38:00 | |
substantially more time outside, like for Mohammed. | 1:38:04 | |
He had been getting one hour of exercise outside | 1:38:08 | |
alone and in a pen. | 1:38:12 | |
And that was increased to four hours a day | 1:38:15 | |
and it was with other people. | 1:38:17 | |
And that changed his whole outlook dramatically | 1:38:18 | |
that he was able to be with other people, be outside, | 1:38:21 | |
and it eased a lot of his mental health symptoms. | 1:38:24 | |
So, I give him credit for that, | 1:38:32 | |
unfortunately Congress was not being cooperative | 1:38:37 | |
with the efforts to close Guantanamo, | 1:38:40 | |
and I do think it should be closed. | 1:38:42 | |
What was really surprising though to me is that, | 1:38:44 | |
President Obama backtracked on his campaign pledge | 1:38:48 | |
and was decided to go forward to military commissions. | 1:38:52 | |
I did testify before Congress, | 1:38:55 | |
July 30 actually the same day that Jawad was released, | 1:38:57 | |
ordered released in the morning. | 1:39:01 | |
And then I went over | 1:39:03 | |
to Congress and testified that afternoon, | 1:39:04 | |
about proposals to reform the Military Commissions Act. | 1:39:06 | |
And I recommended they scrap it altogether | 1:39:11 | |
but knowing that they weren't gonna do that | 1:39:13 | |
I laid out a series of reforms that could improve, | 1:39:15 | |
the military commissions regime. | 1:39:19 | |
And they did adopt several of them but not all of them. | 1:39:21 | |
So the military commissions are improved | 1:39:27 | |
but there's still a second class, | 1:39:29 | |
second tier justice system, | 1:39:32 | |
and it's very disappointing to see | 1:39:34 | |
that this administration | 1:39:37 | |
has decided to continue to utilize them. | 1:39:40 | |
I think that they will come to regret that, | 1:39:42 | |
that they will not be judged kindly by history | 1:39:45 | |
for backtracking on the rule of law. | 1:39:50 | |
I think that this war ultimately is a war | 1:40:00 | |
of about values and ideals, | 1:40:03 | |
and that the only way to win it is to stick | 1:40:05 | |
to our fundamental core values and ideals. | 1:40:09 | |
And when we don't do that, | 1:40:13 | |
the terrorist win. | 1:40:18 | |
Interviewer | Is there anything else | 1:40:20 |
that you'd like to say that I haven't asked? | 1:40:21 | |
I'm sure there is but (laughs). | 1:40:25 | |
- | Well, there's so much that can be said, | 1:40:27 |
but I think the key points for me is that | 1:40:30 | |
the people should understand that, | 1:40:34 | |
so many of the detainees were innocent | 1:40:37 | |
and so many of them were abused, | 1:40:39 | |
and that Americans were sold a bill of goods on this, | 1:40:41 | |
all these people being terrorists, | 1:40:47 | |
and that they were treated well. | 1:40:50 | |
I mean, yes, they get good medical care, | 1:40:54 | |
yes, they're well fed, | 1:40:56 | |
but there was no reason to lock up a child, | 1:40:59 | |
essentially in solitary confinement for six or seven years. | 1:41:02 | |
Such an opportunity squandered, | 1:41:07 | |
if we had made some effort | 1:41:09 | |
to rehabilitate these people to give them... | 1:41:11 | |
Now today they're getting classes, | 1:41:13 | |
and they're getting, learning something | 1:41:15 | |
and their time is being used more productively. | 1:41:18 | |
But first, for years, they were just warehoused, | 1:41:20 | |
and they were seen if they didn't have useful information, | 1:41:23 | |
then they were of little use. | 1:41:27 | |
And I think we should always be mindful of | 1:41:29 | |
that during war we have a tendency to set aside, | 1:41:37 | |
individual rights, human rights, civil liberties. | 1:41:42 | |
And it's always a mistake, | 1:41:46 | |
and it's unfortunately a mistake that we seem to repeat. | 1:41:50 | |
And I'm hoping that in future conflicts | 1:41:53 | |
that maybe we will learn a lesson this time. | 1:41:57 | |
Interviewer | Thank you, that's great, | 1:42:02 |
it was a really, really great night. | 1:42:03 | |
- | All right. | 1:42:05 |
Interviewer | Okay, let's cut a little bit | 1:42:08 |
of room tone here, | 1:42:09 | |
everyone just sit quietly for 15 seconds. | 1:42:10 | |
Room tone. | 1:42:13 | |
End room tone. | 1:42:26 |
Item Info
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