Frakt, David - Interview master file / Witness to Guantanamo / Duke Digital Repository

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

Frakt, David - Interview master file

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