Davis, Morris - Interview master file
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Interviewer | Rolling. Okay, good. | 0:05 |
Okay. So good afternoon. | 0:06 | |
- | Afternoon. | 0:08 |
Interviewer | We are very grateful to you | 0:10 |
for participating in the witness to Guantanamo project. | 0:11 | |
We invite you to speak | 0:15 | |
of your experiences and involvement in Guantanamo Bay, Cuba. | 0:16 | |
We hope to provide you | 0:22 | |
with an opportunity to tell your story | 0:23 | |
in your own words. | 0:26 | |
We are creating an archive | 0:28 | |
of stories so that people in America | 0:29 | |
and around the world will have a better understanding | 0:32 | |
of what you and others have contributed and observed. | 0:35 | |
- | Al right. | 0:40 |
Well, thank you for inviting me. | 0:41 | |
Interviewer | I want to thank you. | 0:42 |
Future generations must know what happened at Guantanamo | 0:43 | |
and by telling your story, you're contributing to history. | 0:47 | |
We appreciate your courage and willingness to speak with us. | 0:51 | |
And if anytime during the interview | 0:55 | |
you'd like to take a break, just let us know we'll do that. | 0:56 | |
And if anything you say you'd like to withdraw | 0:59 | |
just let us know when we can withdraw it. | 1:01 | |
- | Okay. | 1:03 |
Interviewer | Okay. | 1:04 |
So I'd like to begin | 1:05 | |
with just if you don't mind telling us your name | 1:06 | |
and where you were born | 1:07 | |
and a little bit where you grew up and your age, birth date. | 1:10 | |
Anything else about your family and education. | 1:18 | |
Just so we have a little background about who you are. | 1:21 | |
- | Alright. | 1:24 |
Yeah, I'm Morris Davis. | 1:25 | |
I'm originally from North Carolina, | 1:26 | |
graduated from law school in 1983 | 1:29 | |
and joined the North Carolina bar. | 1:31 | |
And shortly thereafter joined the US Air Force. | 1:33 | |
Primarily I think because my father | 1:37 | |
was a 100% disabled veteran of World War Two, | 1:39 | |
who passed away the week after I passed the bar exam. | 1:42 | |
And he always instilled, I think in my brother and I | 1:46 | |
that there was a sense of freedom is not free | 1:48 | |
and everybody has a duty to do their part. | 1:52 | |
And so I think I've kind of felt an obligation to him. | 1:55 | |
So I joined the Air Force intending to do four years | 1:59 | |
and get some litigation experience | 2:01 | |
and then probably get back to North Carolina. | 2:04 | |
And 25 years later, I retired from the Air Force. | 2:05 | |
Interviewer | And what age did you say you were? | 2:10 |
- | Oh, I'll be 51 now. | 2:14 |
52 next month. | 2:16 | |
Interviewer | Oh, happy birthday. | 2:17 |
- | Well, thanks. | 2:18 |
Interviewer | And you're currently living? | 2:19 |
- | Right outside of Washington, DC in the suburbs of DC. | 2:25 |
Interviewer | Okay. | 2:29 |
So I guess we'd like to start with just a little bit. | 2:31 | |
'Cause you told us why you joined the military | 2:34 | |
but what did you expect in the military | 2:35 | |
and how did it end up that you ended up | 2:38 | |
staying there for 25 years before we go to Guantanamo? | 2:40 | |
Just a little background. | 2:43 | |
- | Yeah. Well, the thing that really attracted me | 2:44 |
to join the Air Force was the opportunity | 2:46 | |
for litigation experience, where as you know | 2:49 | |
a lot of folks when you graduate law school | 2:52 | |
if you joined a law firm or it takes time, | 2:54 | |
the partners go to court and you do the work | 2:59 | |
for them to do it, but the military is an opportunity | 3:01 | |
to immediately get courtroom experience. | 3:03 | |
And to me that was appealing. | 3:07 | |
It didn't hurt when they said they were gonna send me | 3:09 | |
to Cocoa Beach, Florida that kind of closed the deal. | 3:10 | |
Interviewer | For training or for-- | 3:13 |
- | And for my first assignment. | 3:14 |
And so I thought it'd be nice to live in Florida | 3:16 | |
for a couple of years and get some trial experience. | 3:19 | |
And then I would go back home to North Carolina | 3:22 | |
but after joining the military | 3:25 | |
and I guess there's one reason when I retired | 3:27 | |
I didn't have any great desire to practice law | 3:30 | |
'cause in my view the military practice of law | 3:33 | |
was the most ethical practice of law that there is, | 3:36 | |
there are some occasional bad apples that come along | 3:40 | |
but by and large it's a very above board | 3:43 | |
gentlemanly practice of law. | 3:47 | |
So I think it was really the people | 3:50 | |
and the practice that caused me to stay in. | 3:53 | |
And it was always fun. | 3:56 | |
It was always getting to do different things | 3:57 | |
and see different places | 3:59 | |
and if I had it to do over again | 4:00 | |
I'd get back and do it again. | 4:02 | |
Interviewer | And after 911 how did it happen | 4:04 |
that you got ultimately involved in Guantanamo | 4:09 | |
not til later on. | 4:12 | |
- | Well, initially President Bush signed an order | 4:15 |
in November of 2001 that authorized the detention | 4:17 | |
of the detainees and the creation of military commissions. | 4:20 | |
Shortly after that there was a call | 4:24 | |
went out through all the services | 4:26 | |
looking for JAGs, attorneys that were willing to volunteer | 4:28 | |
to be involved in whatever capacity, | 4:34 | |
defense counsel's, prosecutors, judges. | 4:36 | |
'Cause they were creating the system | 4:40 | |
they needed volunteers. | 4:40 | |
At the time when 911 happened | 4:42 | |
I was the deputy commandant | 4:44 | |
of the Air Force JAG School in Montgomery, Alabama. | 4:45 | |
And I've volunteered to be the chief defense counsel. | 4:48 | |
I was a colonel at the time, | 4:51 | |
they were looking for colonels | 4:54 | |
to be the heads of both sides. | 4:56 | |
My concern was there was so much hatred | 5:01 | |
and right after 911 that I thought | 5:04 | |
being involved with the defense is gonna be a very | 5:08 | |
unpopular role that nobody would be interested in doing. | 5:10 | |
And I thought it was important | 5:15 | |
that we do it right, | 5:16 | |
that if we just succumb to the anger | 5:19 | |
then the other side won. | 5:24 | |
So I volunteered to be the chief defense counsel, | 5:25 | |
Will Gun, Colonel Will Gun who was also an Air Force JAG | 5:28 | |
was selected for that job. | 5:32 | |
So at that point, I guess from late 2001, early 2002 | 5:35 | |
when this process was being created until 2005 | 5:39 | |
I kind of watched from the periphery | 5:43 | |
but I wasn't directly involved with the commissions. | 5:46 | |
And then in July of 2005 | 5:50 | |
I got a call from the judge advocate, | 5:52 | |
general of the Air Force | 5:53 | |
asking if I'd consider being chief prosecutor. | 5:55 | |
My involvement started in 2005. | 6:00 | |
Interviewer | And why would they ask you | 6:02 |
to be a prosecutor if you had volunteered | 6:03 | |
to be a defense attorney? | 6:05 | |
- | Well, the judge advocate general recently retired now | 6:07 |
was Jack Rives and I'd known him for a number of years. | 6:10 | |
Actually had moved to Cheyenne Wyoming at the time. | 6:17 | |
I was the staff judge advocate, the senior attorney | 6:19 | |
for 20th Air Force, | 6:22 | |
which is headquartered in Cheyenne Wyoming. | 6:24 | |
It's the command that controls | 6:26 | |
all the intercontinental ballistic missiles. | 6:28 | |
And I'd only been there | 6:31 | |
for about six months when he called me, | 6:31 | |
I was the third chief prosecutor. | 6:34 | |
And as we sit here today | 6:36 | |
in June of 2010 there on the fifth chief prosecutor. | 6:37 | |
Te first one was an army Colonel Fred Bork | 6:42 | |
and early part of 2004 | 6:46 | |
there were a couple of Air Force attorneys that worked | 6:52 | |
for Fred in the prosecution office that felt | 6:54 | |
that he was pressing them to do some things | 6:56 | |
they thought were perhaps unethical. | 6:59 | |
And there was some email traffic | 7:04 | |
between the two that eventually wound up | 7:06 | |
in the New York times. | 7:07 | |
And so Fred moved on | 7:08 | |
to another job and was replaced by Colonel Bob Swan. | 7:12 | |
And then Bob decided to retire. | 7:16 | |
I guess it was around July of 2005 | 7:21 | |
is when he made the decision he was gonna retire. | 7:23 | |
He decided to retire. | 7:26 | |
He wanted to stay on, he wanted to be directly involved | 7:27 | |
in the high-value detainee, | 7:29 | |
the Khaleed Sheikh Muhammad Cases. | 7:31 | |
And so Bob retired or decided to retire | 7:33 | |
and then stayed on in a civilian capacity | 7:36 | |
with the prosecution. | 7:40 | |
I think General Rives felt that the Air Force JAGs | 7:44 | |
had had a role in the controversy | 7:48 | |
that had kind of permeated the office. | 7:51 | |
By 2005 it was three years into this effort | 7:57 | |
and nobody had been prosecuted, | 8:00 | |
there've been fits and starts and injunctions | 8:02 | |
and nothing had really happened. | 8:05 | |
There was a lot of frustration. | 8:08 | |
Then you had this email flat blow up. | 8:09 | |
And I think the office, the morale was not | 8:11 | |
what it should have been. | 8:17 | |
And I think he kind of felt like the Air Force | 8:19 | |
had contributed to things being in this state | 8:21 | |
and wanted to contribute to turning things around. | 8:24 | |
So he called and asked if I'd consider taking the job. | 8:28 | |
And I think my family was a little reluctant. | 8:33 | |
We'd moved from Alabama | 8:40 | |
to Wyoming in February of 2005. | 8:41 | |
And here we are in July looking at moving from Wyoming | 8:45 | |
to Washington but for an attorney | 8:47 | |
this was a once in a lifetime opportunity. | 8:51 | |
And I still think my attitude was the same as it was | 8:56 | |
when I volunteered to be the chief defense counsel | 8:58 | |
that it was important that we do this right. | 9:00 | |
And show the world that despite | 9:04 | |
what other people do to us | 9:08 | |
that we're still gonna take the high ground | 9:10 | |
and do it, right? | 9:12 | |
Interviewer | Were you trained | 9:16 |
before you went to Guantanamo | 9:17 | |
on some of the issues that you would face | 9:18 | |
in Guantanamo or did they just send you there and say | 9:21 | |
now you're in charge? | 9:23 | |
- | It was the latter really. | 9:24 |
When I came on board it was actually | 9:26 | |
September 2005, is when I actually moved to Washington. | 9:29 | |
Our offices were in Washington and then we would travel | 9:34 | |
to Guantanamo as needed. | 9:38 | |
And it was really, it was a very short, | 9:43 | |
I got the call in like mid July | 9:46 | |
asking if I'd consider doing it, | 9:48 | |
flew to Washington August 1st | 9:50 | |
and had an interview with Jim Haynes | 9:53 | |
who was the DVD general counsel at the time. | 9:55 | |
And then I think the next day I got the call | 9:58 | |
that he selected me to be the chief prosecutor. | 10:00 | |
And then we had to go back to Wyoming, get packed up | 10:03 | |
and then move 30 days later to DC. | 10:05 | |
It was basically show up and learn as you go. | 10:13 | |
Interviewer | Did Jim Haynes have other candidates | 10:16 |
to look at or you were the only candidate | 10:18 | |
that he interviewed? | 10:20 | |
- | I don't know if he interviewed others or not. | 10:21 |
When Bob Swan decided to retire all the services were asked | 10:24 | |
if they had nominees to take Bob's place. | 10:28 | |
But I don't know who else, | 10:31 | |
I don't know if the names that were put forward | 10:34 | |
or if other people were actually interviewed or not. | 10:36 | |
Interviewer | And do you remember any of the questions | 10:38 |
Jim Haynes asked that you found somewhat unusual or unique? | 10:40 | |
- | Yeah, the whole interview probably lasted | 10:46 |
less than half an hour. | 10:48 | |
And there weren't any real like I would say probing, | 10:57 | |
I think it was he wanted a face-to-face meeting | 10:59 | |
to kind of get to know me | 11:03 | |
before making the decision. | 11:05 | |
We talked a little bit about, | 11:10 | |
by August of 2005 this process has been in existence | 11:17 | |
for almost four years and nothing had happened. | 11:21 | |
The critics of the process that had a field day. | 11:28 | |
And in some cases they were truthful | 11:31 | |
in their criticisms and some they embellished | 11:35 | |
and other parts were just outright lies | 11:38 | |
and the department of defense | 11:40 | |
and their typical fashion would say no comment. | 11:41 | |
And then there'll be upset when the media would report | 11:45 | |
and portray Guantanamo and the military commissions | 11:50 | |
in a less than flattering fashion | 11:52 | |
after they'd said no comment. | 11:54 | |
So one of the things we talked about specifically | 11:57 | |
was that we needed to, | 11:59 | |
we had a decent story to tell | 12:01 | |
from what I could get a little bit of educating myself | 12:02 | |
on the process. | 12:08 | |
It looked like the framework was there to have | 12:09 | |
a decent process but we were doing a lousy job | 12:14 | |
of telling that side of the story. | 12:18 | |
And I remember him saying, I couldn't agree with you more. | 12:20 | |
So he was very enthusiastic | 12:24 | |
about trying to tell the other side | 12:25 | |
of the story that may have been part | 12:28 | |
of the reason why I got the job. | 12:30 | |
I'd written an article a year earlier | 12:31 | |
about engaging with the media. | 12:35 | |
I'd been the head of the investigation | 12:37 | |
of a sexual assault scandal at the Air Force Academy. | 12:40 | |
And during that I saw how DOD just did a terrible job | 12:43 | |
of public relations. | 12:48 | |
And for example, the secretary of the Air Force | 12:50 | |
had made a statement. | 12:53 | |
There were 52 reported rapes | 12:54 | |
and sexual assaults at Air Force Academy. | 12:56 | |
So in the minds of the public | 12:58 | |
that meant there were 52 Central Park | 13:00 | |
jogger cases at the academy. | 13:01 | |
Now his statement was accurate but out of those 52 cases | 13:04 | |
a number of those were cadets | 13:08 | |
they went to the counseling center and said, | 13:09 | |
when I was eight years old, back in Iowa, my neighbor, | 13:11 | |
my cousin, it had nothing to do with the academy. | 13:15 | |
But once you've said there are 52 reported rapes | 13:19 | |
and sexual assaults, you've painted that picture | 13:21 | |
and DOD did nothing to correct that misperception. | 13:26 | |
So that's what led me to write this article | 13:29 | |
about the poor job that we were doing. | 13:32 | |
And I think Jim Haynes was enthusiastic | 13:35 | |
about taking a more proactive approach with the media. | 13:38 | |
Interviewer | Did you meet Donald Rulph too? | 13:43 |
- | No, I never did. | 13:45 |
No. The interview was with Jim Haynes | 13:47 | |
and then Dan Del Ordo was the principal | 13:49 | |
deputy general counsel came in for a bit | 13:52 | |
during the interview and then had to leave. | 13:55 | |
I guess the part that probably got the most attention | 13:58 | |
from the interview was Jim Haynes had brought up | 14:00 | |
that these trials Guantanamo, | 14:07 | |
the military commissions are going to be the Nuremberg | 14:09 | |
of our times. | 14:11 | |
And he said, well, you knew this is a real opportunity. | 14:13 | |
You could be as famous as Robert Jackson. | 14:15 | |
What struck me is I think it showed how naive | 14:18 | |
he was about the military, | 14:22 | |
I think you'll find most military folks | 14:25 | |
don't take on missions or tasks | 14:26 | |
looking at it for what's in it for me. | 14:30 | |
But I think that was his, he's a political creature. | 14:34 | |
And I think from him that was like a real hook for, | 14:37 | |
Hey this is a chance to be famous | 14:40 | |
and having read up on Nuremberg after he made the comment | 14:45 | |
about and this is gonna be the Nuremberg our time, | 14:49 | |
at Nuremberg not everyone was convicted. | 14:54 | |
There were some acquittals. | 14:57 | |
And certainly as a prosecutor | 14:59 | |
you never go into court looking to lose. | 15:00 | |
But if it did happen that at least it would tend | 15:03 | |
to validate the process | 15:06 | |
of this at the kangaroo court | 15:07 | |
is not a rigged process that it does do justice. | 15:09 | |
And I remember he was sitting across | 15:14 | |
from me and he kind of rocked back and said, acquittals, | 15:16 | |
wait a minute we can't have acquittals. | 15:20 | |
We've been holding these guys for years. | 15:21 | |
How are we gonna explain that we can't have acquittals | 15:23 | |
we've gotta have convictions | 15:25 | |
and that point been discussed and debated | 15:27 | |
and I've testified about it in court. | 15:31 | |
And my impression was that it was not him saying | 15:33 | |
that the trials have to be rigged to ensure convictions. | 15:37 | |
I don't think it ever occurred to him this possibility | 15:41 | |
that there could be an acquittal that I think | 15:45 | |
and not just Jim Hayes, | 15:49 | |
I think a number of people had this view | 15:50 | |
that you take a case before a military jury | 15:53 | |
and the military is gonna, | 15:56 | |
they're gonna convict the guy, | 16:00 | |
this notion that military officers might actually think, | 16:02 | |
think hadn't been pondered by some people. | 16:07 | |
And that was I think the context of his statement | 16:11 | |
it just never had occurred to him | 16:14 | |
that there was a possibility of an acquittal. | 16:16 | |
Interviewer | How'd you feel about that? | 16:19 |
What did you think of that moment? | 16:21 | |
- | Well, again, it was kind of in close the session | 16:24 |
with the here's your chance to be as famous | 16:27 | |
as Robert Jackson. | 16:29 | |
Again, to me, it just confirmed | 16:30 | |
what I'd heard for a long time prior to that | 16:33 | |
that he was a political creature that was naive. | 16:36 | |
I mean, to my knowledge, he has never tried a case. | 16:39 | |
Yet he's the expert on litigation and trial strategy. | 16:43 | |
It just to me showed how naive he was | 16:46 | |
about the military and military justice. | 16:50 | |
Interviewer | So were you worried | 16:54 |
that maybe you won't succeed | 16:55 | |
in every prosecution and then you'll look bad | 16:57 | |
to General Haynes or you didn't really think about that? | 16:59 | |
- | I didn't really think about it. | 17:01 |
I didn't. | 17:02 | |
Yeah, pleasing him was never high on my agenda. | 17:05 | |
Interviewer | So then did you then get any training | 17:10 |
once you were hired? | 17:14 | |
Did you meet with certain people | 17:16 | |
who tried to give you some direction | 17:18 | |
or you just pretty much on your own? | 17:20 | |
- | It was pretty much on, | 17:21 |
there was no training course on military commissions | 17:22 | |
'cause we hadn't done one since World War II. | 17:27 | |
So there was no class you could go to | 17:31 | |
to learn how to do military commissions. | 17:33 | |
There were people involved in the process | 17:36 | |
that had been there for some period of time, | 17:38 | |
General John Altenburg was the convening authority | 17:42 | |
for the military commissions. | 17:44 | |
Convening authority is a unique role | 17:48 | |
in the military justice system. | 17:50 | |
And I can tell you having talked with members of Congress | 17:53 | |
trying to explain what a convening authority is. | 17:55 | |
There's no analog in any other system | 17:58 | |
that I'm aware of to the role of the convening authority | 18:00 | |
but essentially it's kind of a neutral | 18:04 | |
especially a neutral role is not beholden to the prosecution | 18:09 | |
or defense who is the person that decides | 18:12 | |
as a prosecutor, I may recommend charges | 18:17 | |
but is up to the convening authority to decide | 18:19 | |
if the charges go forward to trial, | 18:22 | |
they select the jury members, | 18:25 | |
they review the case when it's over, | 18:27 | |
they can break clemency | 18:28 | |
but it's supposed to be in a neutral role. | 18:31 | |
Interviewer | Being military person, of course, right? | 18:34 |
The convening authority? | 18:36 | |
- | Not necessarily , under the uniform code | 18:37 |
of military justice, Title 10, | 18:41 | |
which was created again at the end of World War Two, | 18:45 | |
the convening authorities are military officers. | 18:48 | |
And I haven't checked the math lately since 2001 | 18:54 | |
there've been more than 75,000 court marshals convened | 18:58 | |
under Title 10 into the UCMJ, | 19:02 | |
to my knowledge everyone of those has been convened | 19:05 | |
by a military officer. | 19:08 | |
Now General Arltenberg was the convening authority | 19:10 | |
for the military commissions. | 19:12 | |
And he was an army two star retired | 19:14 | |
who had been the deputy judge advocate general of the army. | 19:18 | |
When he left, he was replaced by Susan Crawford | 19:21 | |
who never served a day in her life in the military. | 19:25 | |
So that was, again, one of my concerns when she came | 19:28 | |
on board was if these are title 10 proceedings | 19:31 | |
and they're supposed to be modeled after the uniform code | 19:35 | |
of military justice why if we can convene 75,000 | 19:38 | |
court marshals under a military officer | 19:41 | |
why are these convened by a political appointee? | 19:46 | |
Interviewer | They lawyers be the convening authorities? | 19:50 |
- | No, generally, well they can be, but that's not | 19:53 |
a prerequisite for being a convening authority. | 19:56 | |
In 25 years in the Air Force | 20:02 | |
I can't think of a court martial being convened | 20:03 | |
by someone who was a lawyer. | 20:06 | |
Interviewer | So what impact was that to you | 20:11 |
to have a convening authority? | 20:14 | |
- | Well, that's the person that's supposed | 20:16 |
to oversee the entire process, | 20:17 | |
provide resources for both the prosecution | 20:21 | |
and the defense kind of be that neutral arbiter | 20:24 | |
like I said when I come forward with charges | 20:27 | |
the convening authority reviews them and can say yes or no | 20:32 | |
or we can modify the charges | 20:34 | |
or they exercise a great deal of discretion | 20:36 | |
but General Altenburg had been there | 20:42 | |
from the start who was the original convening authority. | 20:44 | |
If you ever talked to him, he'll tell you | 20:48 | |
he took the job because he was concerned that Rumsfeld | 20:50 | |
and Haynes and David Addington and those folks | 20:53 | |
they're gonna call this military justice. | 20:58 | |
And when it went to hell in a hand basket | 21:01 | |
they were gonna blame the military for it. | 21:02 | |
And so he viewed it. | 21:04 | |
And like I said, he had retired. | 21:06 | |
He left a much more lucrative job | 21:08 | |
in a law firm to come back and take on this role. | 21:12 | |
But he thought it was important to do that | 21:16 | |
to prevent people like Jim Haynes | 21:18 | |
from running a muck and making a mess of this | 21:20 | |
and then blaming it on the military. | 21:24 | |
When he met with the secretary Rumsfeld. | 21:26 | |
Well, let me, there's also a legal advisor. | 21:30 | |
The convening authority normally is not an attorney | 21:35 | |
in the military justice system. | 21:37 | |
So the convening authority always has a legal advisor | 21:40 | |
and attorney to advise the convening authority. | 21:42 | |
In this case, the legal advisor | 21:46 | |
for the military commissions was Brigadier | 21:48 | |
General Tom Hemingway | 21:50 | |
who was a retired Air Force general that I had known | 21:52 | |
for pretty much my entire career. | 21:56 | |
He had retired and came back out of retirement back on | 22:00 | |
to active duty to be the legal advisor | 22:04 | |
for general Altenburg. | 22:06 | |
General Altenburg when he met | 22:09 | |
with Secretary Rumsfeld, | 22:10 | |
the plan was was to bring him back on the active duty | 22:12 | |
put him back in two star status. | 22:16 | |
But he said, when he met with Secretary Rumsfeld | 22:18 | |
he said, look, I'll take the job | 22:21 | |
but only in a civilian status | 22:23 | |
because if I come back in uniform | 22:26 | |
and you tell me here's what you're gonna do | 22:27 | |
then I've got to obey your order. | 22:31 | |
So I need to be able to sit here and tell you | 22:33 | |
I hear what you're saying, but I'm not gonna do it. | 22:34 | |
And so that was why he insisted | 22:37 | |
on coming back as a civilian. | 22:38 | |
But when I came on board | 22:41 | |
and General Altenburg and General Hemingway were there, | 22:42 | |
I knew General Hemingway personally | 22:45 | |
and I knew General Altenburg by reputation. | 22:48 | |
I had a great deal of confidence in their abilities | 22:51 | |
and the top cover, they provided to try to do this right. | 22:55 | |
Interviewer | So they informed you | 22:59 |
of what you're just telling us. | 23:01 | |
You heard that from them and said you had some background | 23:02 | |
understanding of what your role should be. | 23:04 | |
- | Right? | 23:08 |
Yeah I understood from them that their desire | 23:08 | |
was to do this right. | 23:13 | |
And they the decisions I made, | 23:14 | |
they were gonna back me up | 23:20 | |
on doing this the right way. | 23:22 | |
Interviewer | So how do you perceive then | 23:24 |
when you started working, what did you do first? | 23:26 | |
- | I came on board right after remember the exact date. | 23:30 |
It was right after Labor Day weekend in September of 2005. | 23:33 | |
Bob Swan was still the chief prosecutor | 23:38 | |
at the time that he retired | 23:41 | |
officially retired like two or three weeks later. | 23:42 | |
And that was when we actually, | 23:46 | |
I actually had two or three weeks | 23:48 | |
to kind of get settled in before Bob retired | 23:49 | |
and I took over. | 23:51 | |
During that time, | 23:53 | |
some of the prosecutors in the office had been there | 23:58 | |
for several years at that point. | 24:00 | |
So I talked to get back with them | 24:04 | |
on their experience that they'd had. | 24:06 | |
One of the concerns that I think a lot of people had was | 24:12 | |
as I mentioned that originally first chief prosecutor | 24:14 | |
there were some prosecutors felt that | 24:18 | |
the original chief prosecutor was pushing them | 24:20 | |
to do some things that they thought | 24:22 | |
or bordering on being unethical. | 24:27 | |
Interviewer | Could you tell us some of that | 24:29 |
since you mentioned a second time | 24:30 | |
what things we're talking about? | 24:32 | |
- | I'm not sure exactly what 'cause I know | 24:34 |
Fred was the original chief prosecutor | 24:38 | |
and I'd known Fred for a number of years. | 24:39 | |
It turned out to be I think largely | 24:43 | |
a poor choice of words and miscommunications. | 24:47 | |
There was a person that was a Navy captain. | 24:49 | |
Let me back up. | 24:54 | |
I was in the army LLM program, | 24:55 | |
the masters of law program in Charlottesville. | 24:57 | |
One of my instructors was Fred Bork. | 24:59 | |
One of my other instructors was John Rolfe | 25:02 | |
who was a Navy Captain, Navy 06. | 25:04 | |
And obviously Fred and John were on the faculty together | 25:07 | |
at the army JAG school years earlier | 25:11 | |
in the early mid 90s. | 25:14 | |
Then if you move on | 25:18 | |
to the post 911 period, Fred's now the chief prosecutor | 25:19 | |
they're proposing John Roth be the chief judge. | 25:23 | |
And so Fred had made some comments about his good buddy | 25:27 | |
John Roth, which some people interpreted it. | 25:31 | |
The fix was in that his good buddy | 25:34 | |
was gonna make everything. | 25:37 | |
I don't believe that to be the case | 25:39 | |
but that was the perception and people were concerned | 25:42 | |
that they were gonna be participating | 25:46 | |
in this sham process and that didn't set well. | 25:49 | |
So in talking with people, | 25:56 | |
one of the first things I did | 25:57 | |
after I became the chief prosecutor. | 25:59 | |
Now, at that point in time | 26:01 | |
the CIA was still operating the black site. | 26:04 | |
So Khalid Sheikh Muhammad | 26:06 | |
and the other high value detainees were still | 26:07 | |
in CIA custody, not DOD custody | 26:09 | |
but there was certainly, like I said, Bob Swan retired | 26:12 | |
from the army to stay on to work on the high-value cases. | 26:17 | |
So it was known that there was a very strong likelihood | 26:22 | |
that in the not too distant future Khaleed Sheikh Muhammad | 26:25 | |
and the other high value detainees would be coming | 26:30 | |
into our system from the CIA and there was concern | 26:33 | |
there'd been reports about waterboarding | 26:38 | |
and some of the other enhanced interrogation | 26:41 | |
that people were concerned about | 26:43 | |
whether they were gonna be expected to go into court | 26:47 | |
and use that kind of evidence. | 26:49 | |
So one of the first staff meetings I had | 26:52 | |
with the prosecution team once I became chief prosecutor | 26:54 | |
was in early October of 2005. | 26:57 | |
And I told him, look, I just wanna establish upfront | 27:01 | |
that we're not gonna try to press the edge | 27:05 | |
of the envelope here and see how much we can get away with. | 27:08 | |
I know there's some concern about some | 27:10 | |
of the techniques that were used to extract information | 27:13 | |
like waterboarding and that we're not gonna use that kind | 27:16 | |
of evidence that and I remember telling folks, | 27:20 | |
I think people have this romanticized view | 27:23 | |
of Nuremberg that I think in its day | 27:26 | |
Nuremberg was quite an accomplishment | 27:28 | |
but that was prior to the Geneva conventions | 27:31 | |
and about 60 more years of judicial development | 27:36 | |
but people have this romanticized notion. | 27:40 | |
I said we're gonna do this right now. | 27:42 | |
We're hopefully our grandkids will sit | 27:45 | |
around one day and talk about Guantanamo the way | 27:46 | |
we look back at Nuremberg and it was my sense after that | 27:50 | |
that people were relieved that his chief prosecutor | 27:54 | |
wasn't going to lean on them to try to press the edge | 27:59 | |
of the envelope and see how much they could get away with. | 28:03 | |
What I instructed them to do | 28:06 | |
if there were cases 'cause I knew at the time | 28:06 | |
up until that point prior to the high-value detainees | 28:10 | |
getting to Guantanamo probably the dirtiest case | 28:12 | |
as far as excessive treatment would have been | 28:15 | |
Mohammed Al Qahtani. | 28:21 | |
Who in my view really is the 20th hijacker | 28:23 | |
but that was probably the worst treatment | 28:26 | |
any of the detainees had experienced. | 28:29 | |
So I said in a case like, like Qahtani, | 28:32 | |
well anything he has said in our custody | 28:36 | |
we're gonna set it aside like it never happened | 28:39 | |
and build the cases independent of any of their statements | 28:42 | |
where there has been abusive treatment. | 28:48 | |
And if you don't use their statement | 28:52 | |
the abusive treatment is interesting, but irrelevant | 28:54 | |
at least as far as the military commissions are concerned. | 28:58 | |
So that was my guidance | 29:00 | |
to my folks were if you had cases like that | 29:01 | |
then build a case independent of their statements | 29:05 | |
and their techniques that you think went too far. | 29:08 | |
Then, I don't want you to feel | 29:10 | |
like you're being pressured to press forth come in | 29:12 | |
and let's talk about it and let's do this right. | 29:15 | |
Interviewer | Did you have certain cases in mind? | 29:19 |
You mentioned Al Qahtani, | 29:21 | |
did the government say you should go forward on his case | 29:23 | |
or you decided that on your own? | 29:25 | |
- | Yeah, nobody really ever pressured me on any, | 29:31 |
before I came on board | 29:36 | |
there were 10 detainees that had already been charged | 29:37 | |
under the order that President Bush had signed. | 29:41 | |
So I inherited a number | 29:44 | |
of cases that were already in the system | 29:46 | |
at the time I came on board, | 29:50 | |
the way the process worked under the original military order | 29:52 | |
that President Bush signed every case | 29:56 | |
required the president, | 30:00 | |
the president had to personally sign a determination | 30:01 | |
that the person was believed to be a member or supporter | 30:05 | |
of Al Qaeda or the Taliban, it's called an RTB | 30:11 | |
a reason to believe determination by the president. | 30:14 | |
So the way the process would work is we reviewed cases | 30:18 | |
reviewed the evidence and felt | 30:22 | |
that there was sufficient grounds to go forward | 30:23 | |
with a criminal prosecution. | 30:26 | |
The case had to go through the Pentagon | 30:28 | |
to the national security council, to the president | 30:30 | |
who personally had to sign that determination. | 30:32 | |
Once he'd done that | 30:36 | |
we had jurisdiction to bring criminal charges. | 30:38 | |
So there were 10 cases that had been through that process | 30:42 | |
and had been charged which included, | 30:45 | |
Hamdan and Salim Hamdan and David Hicks, Omar Kotter, | 30:48 | |
Interviewer | Was Mosain Bag one of them? | 30:54 |
- | He was never charged. | 30:59 |
I was trying to recollect | 31:00 | |
if he'd been through the RT, the reason to believe process | 31:02 | |
I don't recall that he was. | 31:05 | |
Mosain Bag had already gone back to England | 31:09 | |
by the time I came on board in 2005. | 31:11 | |
So I'm just not that clear on the chronology of his case. | 31:13 | |
Interviewer | And Al Qahtani was one of them? | 31:17 |
- | Al Qahtani had not been charged. | 31:19 |
I believe, I was trying to recall. | 31:22 | |
I felt that there was enough information | 31:27 | |
on Al Qahtani to establish his guilt | 31:30 | |
without using anything he ever said. | 31:33 | |
I mean, the fact that he followed the same route | 31:35 | |
from the middle East through London to Orlando | 31:40 | |
on the same not the actual same plane as the other hijackers | 31:43 | |
but the same Virgin Atlantic flight number | 31:47 | |
that they had flown in on. | 31:50 | |
And you had Muhammad Ata, he had the records of him | 31:52 | |
and the rental car pulling into the parking garage | 31:55 | |
in Orlando at the same time, Ata didn't show up | 31:58 | |
to pick you up to go to Epcot in late August of 2001. | 32:02 | |
So I thought we could build a pretty compelling case | 32:09 | |
independent of his statements. | 32:11 | |
We prepared the RTV, the reason to believe package | 32:14 | |
it went through the Pentagon through the NSC | 32:18 | |
and it made it to Harriet Meyer's desk and sat there. | 32:20 | |
And to my knowledge, | 32:24 | |
it never made it past her desk. | 32:28 | |
So we never charged Al Qahtani | 32:31 | |
Interviewer | Do you know why it never made it | 32:33 |
past the desk? | 32:34 | |
- | I don't know. | 32:36 |
I mean, I know I inquired a number times | 32:37 | |
usually General Hemingway, who was the legal advisor | 32:39 | |
handled the administrative, | 32:42 | |
getting the packages coordinated through the Pentagon | 32:44 | |
and over to the White House and back to us. | 32:47 | |
And for months we kept asking about | 32:50 | |
'cause other cases would come forward | 32:52 | |
and go through and come back and then Al Qahtani | 32:55 | |
just seemed to have gotten hung up | 32:58 | |
at Harriet Meyer's office but it was never | 32:59 | |
under the old process under the president's military order. | 33:02 | |
Al Qahtani was never charged. | 33:06 | |
Now he was later charged under the military commissions act | 33:08 | |
but I don't know if you recall, | 33:13 | |
Ms. Crawford refused and again, as I mentioned | 33:14 | |
the convening authority has a lot of | 33:18 | |
discretionary authority. | 33:20 | |
The chief prosecutor | 33:22 | |
the person that replaced me had gone forward | 33:23 | |
with charges against Al Qahtani | 33:25 | |
and Ms. Crawford refused to refer the charges to trial. | 33:27 | |
And I'm sure you read | 33:31 | |
or in her interview with Bob Woodward | 33:32 | |
that came out in January of 2009, | 33:35 | |
she said the reason she didn't send the case | 33:38 | |
to trial was because Al Qahtani had been tortured. | 33:40 | |
Interviewer | So which case did you care to begin with? | 33:44 |
Which two cases or three cases did you have any in mind? | 33:48 | |
- | Unfortunately, as I said, | 33:51 |
there were 10 that were already in the queue. | 33:52 | |
When I came on board I was trying to recall, | 33:55 | |
I think it was Hamdan | 34:04 | |
there'd been a stay issued because Hamdan | 34:07 | |
and I believe was at the court of appeals | 34:12 | |
at the time I came on board in September of 05. | 34:15 | |
So the convening authority General Altenburg | 34:18 | |
had issued a stay on all the cases | 34:20 | |
just came to a grinding halt after the Supreme court | 34:23 | |
granted Cert and Hamdan. | 34:28 | |
So for a while there was nothing, | 34:31 | |
I think people thought we just sat around | 34:35 | |
and played solitaire on the government computer all day. | 34:36 | |
People continued reviewing evidence and working on cases | 34:41 | |
and building the case file so that when | 34:44 | |
we got the green light to proceed we were ready to proceed. | 34:47 | |
And eventually in late 2005 General Altenburg | 34:52 | |
lifted the stay in a couple of the cases like Omar Kotter, | 34:56 | |
Albalum and I guess there's been three cases | 35:04 | |
that have been completed so far. | 35:05 | |
Those three were all part | 35:07 | |
of the original 10 that had been queued up | 35:09 | |
before I got there. | 35:12 | |
Supreme court came out with a Hamdan decision | 35:18 | |
in June of 2006. | 35:20 | |
It just blew everything out of the water. | 35:22 | |
Now I'll never forget that day, Bob Swan. | 35:25 | |
It was just, I remember right before the decision came out | 35:29 | |
Bob was saying, Oh, it's gonna be a six to three vote. | 35:34 | |
We're gonna win we're to win six to three. | 35:36 | |
And we weren't there. | 35:39 | |
So we were just having to follow it on the, | 35:40 | |
actual we were looking at a SCOTUS blog | 35:42 | |
and I forgot the guy's name that runs, good grief. | 35:46 | |
He kept posting updates | 35:52 | |
and you can just kind of see the blood | 35:54 | |
start to drain out of Bob as it became clear | 35:55 | |
it wasn't gonna be a six to three win in the Hamdan case. | 35:58 | |
But when the process came | 36:01 | |
to a halt and we were, | 36:04 | |
it required going to Congress | 36:06 | |
and getting statutory authorization. | 36:07 | |
I remember saying, | 36:11 | |
the one case I don't want to lead off with is David Hicks | 36:14 | |
which wound up being the case | 36:18 | |
that we ended up leading off with. | 36:19 | |
One of the things I never could get anyone | 36:24 | |
to give me any direction on was, | 36:26 | |
in my view there's gotta be a threshold. | 36:30 | |
We had the authority to detain the enemy | 36:34 | |
during times of armed conflict, | 36:37 | |
detaining the enemies, an administrative process | 36:40 | |
and then convicting someone as a war criminal | 36:43 | |
is a different kettle of fish. | 36:47 | |
And they're not necessarily, you can be detained | 36:50 | |
as an enemy combatant without being a war criminal. | 36:55 | |
Now, I guess you would have to be a enemy combatant | 36:58 | |
in order to be a war criminal | 37:00 | |
the two are not one in the same. | 37:02 | |
One of the things I never could get any clear guidance on | 37:05 | |
is where is the cut line? | 37:07 | |
I mean, particularly after Congress approved | 37:09 | |
material support for terrorism | 37:12 | |
in theory you could have charged just about everybody, | 37:14 | |
how far down the hierarchy do you wanna go? | 37:21 | |
And like in my view | 37:27 | |
David Hicks never would have made the threshold | 37:27 | |
but nobody would ever give me any clear guidance. | 37:33 | |
So what I instructed the prosecutors to do | 37:37 | |
was to use 20 years to look at a case | 37:40 | |
and if in your mind looking at the evidence | 37:44 | |
it would warn a 20 year sentence. | 37:47 | |
And that's a keeper. | 37:49 | |
But if it doesn't measure up to the 20 year threshold | 37:50 | |
and let's not, | 37:54 | |
we've got plenty of cases to work on | 37:56 | |
without messing with the ones that don't warrant | 37:58 | |
a serious sentence. | 38:02 | |
And I kind of base that on the John Walker Lynn | 38:05 | |
got 20 years. | 38:07 | |
So that was kind of the benchmark for evaluating. | 38:08 | |
Interviewer | Was that your benchmark | 38:12 |
or did other people also consider? | 38:13 | |
- | That was mine. | 38:16 |
Like I said, I mentioned it to Jim Haynes | 38:18 | |
to El Dorado to General Hemingway and nobody | 38:21 | |
was willing to commit to what the threshold should be. | 38:27 | |
Interviewer | Let's hold. | 38:32 |
Its okay. | 38:34 | |
So we've talked about how you use the 20 year threshold | 38:36 | |
and otherwise you wouldn't pursue the case? | 38:39 | |
- | Right? | 38:42 |
Yeah. The way the process works | 38:43 | |
there's an organization, I guess I think it still exists. | 38:46 | |
Called set of the criminal investigation task force, | 38:49 | |
was an organization created, | 38:53 | |
actually was headquartered in at Fort Belvoir, | 38:55 | |
just South of DC | 38:58 | |
but it was a joint service though | 39:00 | |
kind of the law enforcement end of the detainee spectrum. | 39:03 | |
They were headquartered at Fort Belvoir. | 39:09 | |
They had a detachment at Guantanamo. | 39:11 | |
They had one over in Afghanistan | 39:12 | |
and their job was to kind of collect up all the bits | 39:16 | |
and pieces of information and try to put it | 39:21 | |
in some kind of a coherent package | 39:23 | |
that we the prosecutors and could take a look at | 39:26 | |
and see if we thought there was a case to be made. | 39:28 | |
So we would get cases from Sidoff | 39:33 | |
once they had done what they could do | 39:36 | |
then we would evaluate the case and decide again | 39:39 | |
kind of using that arbitrary 20 year threshold | 39:42 | |
I came up with whether it was a case worth pursuing | 39:46 | |
and it appeared, when I came on board | 39:50 | |
I think the detainee population was about 550. | 39:52 | |
There were roughly 70 cases that we thought | 39:57 | |
we had a enough evidence to proceed with. | 40:01 | |
Interviewer | And you said you didn't wanna pursue | 40:06 |
David Hicks but in fact that he was one of the first, | 40:08 | |
well the one of the first-- | 40:09 | |
- | He was the first. | 40:11 |
Interviewer | How did that happen? | 40:12 |
- | It happened in as I mentioned, | 40:13 |
Hamdan the Supreme Court decision came down | 40:17 | |
in late June of 2006. | 40:19 | |
It just shut down the whole show. | 40:22 | |
We worked with Congress | 40:25 | |
over the summer and with DOD | 40:26 | |
and the other executive branch agencies to try to craft | 40:29 | |
a statutory framework to revive the military commissions. | 40:32 | |
Congress passed the military commissions act. | 40:39 | |
And September of 2006 the president signed it | 40:42 | |
like the next day which happened to be the same week | 40:48 | |
they transferred the high-value detainees | 40:51 | |
from the CA black sites to Guantanamo, | 40:53 | |
the Military Commissions Act | 40:59 | |
is the statutory framework for the process. | 41:01 | |
But if you look at it it's pretty bare bones. | 41:03 | |
So, and again, the analogy was to make this process as close | 41:09 | |
to the court-martial uniform code | 41:13 | |
of military justice process as possible. | 41:15 | |
So the way that process works | 41:18 | |
you have the uniform code of military justice, the statute. | 41:20 | |
Then you have a manual for courts martial | 41:23 | |
which is a voluminous document that really puts the meat | 41:26 | |
on the bones. | 41:31 | |
And it gives you the element of the offenses, | 41:32 | |
the defenses that apply, | 41:34 | |
miss the real mechanics of how the process operates | 41:36 | |
which is like the uniform code of military justice | 41:41 | |
applies to all the services. | 41:44 | |
And then each service has their own regulation | 41:46 | |
that then further defines like how you style a motion | 41:49 | |
and that level of detail. | 41:53 | |
So with the military commissions | 41:57 | |
you have the Military Commissions Act, | 41:58 | |
you have the manual for military commissions | 42:01 | |
which again is a very substantial document. | 42:04 | |
And then you have the regulation | 42:07 | |
for Trial by Military Commissions. | 42:08 | |
So when Congress passed the statute in September of 06 | 42:11 | |
the next step was the then based on | 42:15 | |
the statutory authorization was to create the manual | 42:18 | |
for military commissions | 42:21 | |
which is done by the secretary of defense. | 42:25 | |
The manual was being drafted within the, | 42:29 | |
again it's a joint effort | 42:34 | |
within the Pentagon and department of justice | 42:35 | |
and CIA, everybody was participating in creating this thing | 42:37 | |
but it took from September until January of 2007 | 42:42 | |
to create this document. | 42:47 | |
In early January, 2007, | 42:52 | |
I got a call from Jim Haynes, one of the few, | 42:54 | |
Once I became the chief prosecutor | 42:58 | |
in September of 2005 | 43:00 | |
I had minimal contact with him or his office | 43:02 | |
other than occasionally when we needed resources | 43:07 | |
they would assist in doing that. | 43:11 | |
But he never was really involved | 43:14 | |
in the day-to-day operations | 43:17 | |
of the prosecution until early January of 2007. | 43:19 | |
And I don't recall the exact date | 43:23 | |
but it was the same date | 43:26 | |
that President Bush announced he'd withdrawn | 43:27 | |
Mr. Haynes nomination to be a judge | 43:29 | |
on the fourth circuit court of appeals. | 43:31 | |
So within hours of the president withdrawing his nomination | 43:34 | |
he called me and said, | 43:38 | |
"How quickly can you charge David Hicks?" | 43:38 | |
And I said, "Well, until we get the manual | 43:43 | |
"for military commissions, we can't charge anybody" | 43:46 | |
'cause that's the document that lays out | 43:48 | |
the elements of the crime. | 43:51 | |
So we kind of need to see what the elements of the crime are | 43:53 | |
before we start charging anybody with a crime | 43:56 | |
particularly with material support for terrorism | 43:59 | |
which didn't exist under the old system. | 44:00 | |
We'd kind of like to see what the elements | 44:05 | |
of that offense are | 44:07 | |
before we decide who we can charge it with. | 44:08 | |
Also general Altenburg in the fall of 2006 had left and gone | 44:14 | |
back to private practice. | 44:19 | |
My recollection was when he took the job | 44:22 | |
he said he would do it for two years. | 44:23 | |
And this was like four years later he was still doing it. | 44:24 | |
So I think in his mind he thought | 44:27 | |
and when he had the break between | 44:29 | |
after the Hamdan decision came out | 44:31 | |
and you got this new military commission back | 44:32 | |
it was a good time for him to move on. | 44:35 | |
So at the time Haynes called in January of 2007 | 44:41 | |
we had no convening authority. | 44:46 | |
I mean, if I charged anyone | 44:47 | |
there was no one to forward the charges to. | 44:49 | |
And there was no manual for military commissions | 44:52 | |
that told me what the elements of the charges were. | 44:54 | |
So I said, "I can't charge David Hicks | 44:57 | |
"or anyone else until I've got a manual | 45:00 | |
"for military commissions and a convening authority." | 45:04 | |
And he said, "Well, how quickly after," he said, | 45:07 | |
"We're working on the manual, we're getting close to that. | 45:09 | |
"How soon after the manual can you charge David Hicks? | 45:11 | |
"As this has taken way too long. | 45:15 | |
"We gotta get this thing moving." | 45:17 | |
And I said, | 45:20 | |
"the thing is hundreds of pages, | 45:22 | |
"we'll need a couple of weeks | 45:25 | |
"to review it and kind of digest it and then compare | 45:27 | |
"the facts that we know of the cases | 45:30 | |
"and how they're gonna fit together." | 45:34 | |
And he said, "That's too long. | 45:36 | |
"We gotta move this thing quicker." | 45:39 | |
And I said, "Look, we'll move it as quickly as we can | 45:39 | |
"but we're gonna need a couple of weeks | 45:42 | |
"to look at this new process and see where we go with it." | 45:45 | |
So he hangs up within 15 minutes | 45:51 | |
I get a call from Dan Del Orta, | 45:54 | |
who's the principal deputy to Haynes. | 45:55 | |
And Dan said, "Look, I talked to Jim. | 45:59 | |
"And he told me about his conversation with you." | 46:02 | |
He said, "Disregard everything he told you." | 46:03 | |
He said, "Those are your decisions to make not his. | 46:07 | |
"So don't pay any attention | 46:09 | |
"anything Jim just said." | 46:13 | |
Interviewer | So is that coming from him | 46:16 |
or was that coming from Jim telling him to tell you? | 46:18 | |
- | No, Dell Ordo before becoming the principal | 46:21 |
deputy general counsel was a career army JAG. | 46:25 | |
My best guess is after Haynes got off the phone with me | 46:32 | |
he went to Del Ordo and said, | 46:35 | |
"Hey I just talked to Mo Davis and is gonna take" | 46:36 | |
and I think Del Ordo went, "Wait a minute. | 46:39 | |
"that's called unlawful command influence. | 46:41 | |
"You can't do that." | 46:43 | |
Which prompted him to pick up the phone and call me and say, | 46:45 | |
"Disregard everything Jim just told you." | 46:47 | |
Which a few days later | 46:51 | |
the Secretary Gates signed the manual | 46:53 | |
for military commissions. | 46:57 | |
And two weeks to the day after that Jim Haynes called me | 46:59 | |
and said, 'Where are the charges on David Hicks?" | 47:02 | |
And I said, "Well, they're not ready yet." | 47:06 | |
And he said, "Well, you promised me two weeks | 47:07 | |
"after the manual was signed, you would charge David Hicks." | 47:09 | |
And I said, "Well, we're not quite there yet. | 47:15 | |
"And we still don't have a convening authority. | 47:17 | |
"So if I charge him, who do I send the charges to?" | 47:19 | |
And he goes, 'Well, we're getting close | 47:24 | |
"to having another convening authority named. | 47:25 | |
"That should take place in of days that you promise me | 47:27 | |
"and I promised other people that we'd get Hicks charged." | 47:30 | |
And I said, "Look, we're doing the best we can. | 47:33 | |
"And we're moving as quickly as we can." | 47:37 | |
And he said, 'Well, there are other people you can charge | 47:38 | |
"along with David Hicks." | 47:40 | |
He said, "It's not just gonna be Hicks, is it?" | 47:42 | |
And so there a couple of other cases | 47:44 | |
that we're considering, but we're expecting probably a batch | 47:48 | |
of cases that we'll charge right off the bat. | 47:51 | |
And so he was not happy that we didn't have the charges, | 47:56 | |
but if you look we actually charged David Hicks. | 48:02 | |
I forgot the exact date, but it was early February of 2007. | 48:04 | |
And at the time there was no convening authority. | 48:08 | |
And Ms. Crawford was appointed the convening | 48:11 | |
authority a few days afterwards. | 48:13 | |
Interviewer | So did Del Orte know about | 48:18 |
the second phone call? | 48:19 | |
- | I don't know. | 48:20 |
I never discussed it with him. | 48:21 | |
So I don't know if he did or not. | 48:22 | |
Interviewer | Were you concerned that Jim Haynes | 48:24 |
was calling your gammon | 48:27 | |
and apparently going out of the protocol? | 48:29 | |
- | Well, it certainly made me and again | 48:32 |
to this day I don't know the behind the scene | 48:34 | |
political environment that was prompting this | 48:38 | |
but it was certainly, I think one could surmise | 48:42 | |
if you look at that point in time, John Howard | 48:46 | |
who was the prime minister | 48:49 | |
in Australia at the time was just getting beat | 48:50 | |
about the head and shoulders over the David Hicks issue | 48:53 | |
back in Australia, | 48:56 | |
he had an election coming up later that year | 48:57 | |
and David Hicks was becoming a real albatross | 49:01 | |
around his neck. | 49:03 | |
And he was one of our more visible supporters | 49:04 | |
of our efforts in the war on terrorism. | 49:08 | |
Dick Cheney made a visit | 49:12 | |
to Australia about the same period of time. | 49:14 | |
And suddenly for the first time in two years | 49:21 | |
Jim Haynes is calling me saying | 49:23 | |
with a personal interest in a case. | 49:25 | |
So you can make of that what you want | 49:29 | |
but it was certainly was the timing was unusual. | 49:32 | |
Interviewer | Did Jim Haynes mentioned David Addington? | 49:36 |
- | No. | 49:38 |
His comment to me was you promised me you'd have charges | 49:45 | |
on David Hicks within two weeks. | 49:48 | |
And based on your promises, I made promises to other people | 49:50 | |
but he never identified who they were. | 49:52 | |
My fear was and I had this discussion with General Hemingway | 50:00 | |
and General Altenburg earlier on that, | 50:03 | |
David Hicks, the world had been told | 50:06 | |
these guys are the worst of the worst. | 50:08 | |
And if you lead off with David Hicks | 50:11 | |
who was just a knucklehead, it's not, you know what I mean? | 50:14 | |
That's not exactly the picture you want to, | 50:18 | |
the world has been waiting for years | 50:22 | |
for these military commissions to get going and you lead | 50:24 | |
off with a guy that's just a knucklehead, | 50:27 | |
but yeah that's the way it unfolded. | 50:30 | |
Interviewer | Well, did you feel pressured | 50:34 |
you felt you had to then indict David Hicks | 50:35 | |
given the phone call from Jim Haynes | 50:38 | |
is that why you did it? | 50:40 | |
- | I don't really that I felt that I had to, | 50:41 |
that was a case that had been around | 50:45 | |
from the start. | 50:47 | |
So it was well developed, the prosecutor on the case | 50:48 | |
it was a Lieutenant Colonel, Kevin Shenai | 50:52 | |
who had been working on the case for a number of years. | 50:54 | |
As far as the being developed | 51:00 | |
it was as well developed a cases | 51:01 | |
any that we had on the books, but it certainly | 51:04 | |
his level of culpability was only very | 51:08 | |
very low end of the spectrum. | 51:12 | |
So I think most people would have preferred | 51:15 | |
that he not be the first one out of the shoot. | 51:19 | |
Interviewer | And what happened subsequently | 51:23 |
with other cases, | 51:24 | |
how did that develop? | 51:26 | |
- | Well, I've neglected to mention that in February | 51:28 |
early February, we charged a David Hicks, Salim Hamdan | 51:31 | |
and Omar Katar were the first three cases that we charged | 51:35 | |
under the new military commissions act. | 51:38 | |
Ms. Crawford was appointed convening authority a few days | 51:43 | |
after that, we went to Guantanamo. | 51:46 | |
I believe it was in March, right? | 51:50 | |
Or April of 2007 | 51:54 | |
to do the arraignment of David Hicks. | 51:56 | |
We went down on a Sunday or I'm sorry. | 52:02 | |
Yeah. On a Sunday, | 52:06 | |
when these things take place the military commissions, | 52:08 | |
everybody shows up typically at Andrews Air Force Base | 52:12 | |
or sometimes out of Baltimore, Washington Airport | 52:15 | |
but the prosecution, the defense, the judges, | 52:22 | |
the non-governmental organization, the news media | 52:24 | |
everybody gets on the airplane. | 52:28 | |
I mean, it's like when professional wrestling comes to town | 52:29 | |
the whole entourage gets on the plane together | 52:33 | |
and they all fly to Guantanamo. | 52:35 | |
So we all fly to Guantanamo on a Sunday thinking that | 52:38 | |
on Tuesday morning we're gonna arraign David Hicks, | 52:43 | |
which in arraignment typically takes 15 minutes. | 52:46 | |
So it's a lot of effort for what we thought | 52:50 | |
was gonna be be 15 minutes of work. | 52:54 | |
Well, we get down to Guantanamo and on Monday morning | 52:58 | |
I get a call from general Hemingway saying there's been | 53:00 | |
a plea bargain in the Hicks case, | 53:04 | |
which typically in the military | 53:08 | |
is called a pre-trial agreement | 53:11 | |
or in the civilian world its a plea bargain. | 53:12 | |
But those are typically negotiated between the prosecution | 53:15 | |
and the defense. | 53:18 | |
And then once the two sides have come to terms | 53:19 | |
they put it in writing | 53:22 | |
and present it to the convening authority | 53:24 | |
who has the power to either approve it or disapprove it. | 53:25 | |
Well, in this case, | 53:30 | |
the prosecution was completely eliminated | 53:30 | |
from the discussion and the deal was negotiated directly | 53:33 | |
between the defense counsel and Ms. Crawford. | 53:36 | |
And so we found out Monday morning, | 53:41 | |
we thought we were gonna be going in | 53:44 | |
and doing an arraignment. | 53:46 | |
And instead we found out that there'd been a deal cut | 53:47 | |
in the David Hicks case. | 53:52 | |
Interviewer | Is that legitimate, | 53:54 |
can the convening authority negotiate a deal? | 53:55 | |
- | There's nothing that precludes it. | 53:58 |
And in my 25 years in the Air Force, I was involved in | 54:00 | |
or reviewed hundreds of pre-trial agreements. | 54:05 | |
And this is the only one I've ever seen that was | 54:12 | |
negotiated directly between the convening authority | 54:15 | |
and the defense counsel without the prosecution | 54:17 | |
being involved. | 54:20 | |
And its just atypical of the way the process normally. | 54:21 | |
Interviewer | What do you think about that | 54:24 |
for your own role in this? | 54:27 | |
- | I thought there was, again, | 54:30 |
I would love to know the whole backstory. | 54:32 | |
I mean, my personal view was that was a favor | 54:35 | |
to John Howard to make this case go away | 54:38 | |
before the election came up in Australia. | 54:41 | |
We'd had discussions with the defense, | 54:44 | |
there were a number of cases where we had discussion | 54:48 | |
with defense counsel about potential plea bargains. | 54:50 | |
And we'd had discussions | 54:55 | |
with Dan Maury was representing David Hicks | 54:56 | |
and we'd had discussions with the defense | 55:00 | |
about a potential deal, | 55:02 | |
but any discussions we ever had were measured in years | 55:04 | |
not months. | 55:08 | |
And the deal that was cut was | 55:09 | |
for nine months which you had a guy | 55:11 | |
the first military commission, | 55:15 | |
the worst of the worst convicted war criminal | 55:18 | |
gets a misdemeanor punishment. | 55:21 | |
And part of the deal was he was promptly returned | 55:24 | |
to Australia to serve his sentence. | 55:28 | |
And then by new year's of 2007, David Hicks was a free man. | 55:31 | |
Interviewer | So were you seeing | 55:36 |
that this is all very political | 55:37 | |
and that in fact your role | 55:39 | |
was really just a political role more than just? | 55:41 | |
- | In my perception, I had a very, | 55:48 |
people have asked me because originally I was probably | 55:52 | |
the most vocal proponent of military commissions | 55:55 | |
in Guantanamo Bay. | 55:58 | |
I wrote law journal articles | 55:59 | |
and went around to universities and professional | 56:02 | |
organizations wrote op-eds touting, | 56:04 | |
trying to tell the other side of the story. | 56:09 | |
And I've had people ask me about, | 56:12 | |
Well, were you just saying that | 56:14 | |
or did you really believe it? | 56:16 | |
I really believed it. | 56:17 | |
Like I said, I had a tremendous amount of confidence | 56:19 | |
in General Altenburg and general Hemingway | 56:21 | |
and the top cover they provided to get this done right. | 56:23 | |
To me when the wheels began to come off | 56:28 | |
the wagon started with General Altenburg leaving. | 56:30 | |
And then later in the spring of 2007 | 56:34 | |
General Hemingway left. | 56:37 | |
And by the summer of 2007, | 56:39 | |
I had grave doubts about the system | 56:41 | |
I've been touting the year | 56:46 | |
before I had grave doubts about. | 56:47 | |
By then my feeling was that we had a meeting in | 56:50 | |
or series of meetings in the spring of 2006 | 56:57 | |
before the Hamdan decision came down, | 57:02 | |
when I came on board in 2005, as I mentioned | 57:08 | |
it was not a done deal, but it was expected | 57:10 | |
that the high-value detainees at the CIA were keeping | 57:14 | |
we're gonna be turned over to the department of defense. | 57:17 | |
Interviewer | You have been informed about that? | 57:20 |
- | Right. | 57:22 |
I guess, as I said, it wasn't a done deal | 57:23 | |
but that was certainly the expectation. | 57:26 | |
In the spring of 06 | 57:29 | |
there were a number of meetings | 57:30 | |
where the national security council wanna be able to go | 57:31 | |
to the president and lay out his full range | 57:34 | |
of options on what to do with the high-value detainees. | 57:37 | |
I mean, I think the CA by that point | 57:40 | |
were getting really concerned that their mandate. | 57:42 | |
I mean, their mandate was to hold these guys | 57:46 | |
to extract intelligence. | 57:48 | |
At some point in time you've gotten all you're gonna get | 57:52 | |
and they didn't feel their mandate was to operate | 57:56 | |
the Bureau of Prisons. | 57:59 | |
And so they were very anxious to get these guys | 58:01 | |
off of their books and into somebody else's hands. | 58:04 | |
But the national security council wanted to be able to go | 58:08 | |
to the president with the full range | 58:10 | |
of what his options were to deal | 58:12 | |
with these folks that run the black sites. | 58:15 | |
Obviously for the department of justice, | 58:19 | |
prosecuting a Khaleed Sheikh Muhammad is a real career maker | 58:21 | |
for a US attorney. | 58:26 | |
So, I think initially DOJ really wanted | 58:27 | |
to take on the 911 cases. | 58:33 | |
As you looked at the evidence that we had | 58:36 | |
the lack of rights advisements, | 58:39 | |
the enhanced interrogation techniques | 58:41 | |
and a number of other things, | 58:43 | |
I think they came around eventually to the point | 58:46 | |
of view that a military commission was a more | 58:50 | |
viable option than federal court. | 58:52 | |
So it wound up by the time the Hamdan decision came down | 58:54 | |
I think all of the powers that be were pretty much | 58:57 | |
in agreement that military commissions were the best option | 59:01 | |
for these guys including | 59:06 | |
department of justice went along with that | 59:09 | |
even though they went along with it | 59:11 | |
I think they still wanted to keep their hands on the reins. | 59:13 | |
So I've told people before and I kinda felt | 59:18 | |
like Mickey Mouse at Disney World | 59:20 | |
if you take your family to Disney World | 59:25 | |
at some point you expect Mickey to come out | 59:26 | |
and wave at the crowd. | 59:29 | |
These were called military commission. | 59:31 | |
So you need somebody to put on the costume and come out | 59:33 | |
and sell this as a military effort | 59:38 | |
even though DOJ behind the scenes wanted | 59:40 | |
to pull the strings and say, | 59:44 | |
for me that was the kind of a constant battle | 59:45 | |
on who's really in charge here. | 59:48 | |
I mean, am I the chief prosecutor like Mickey Mouse is, | 59:51 | |
Mickey Mouse is the face of Disney | 59:54 | |
but he doesn't get a seat in the boardroom. | 59:56 | |
And so it was a question of who's in charge of this process. | 59:59 | |
And I felt a high degree of confidence | 1:00:04 | |
in that process until, like I said, General Altenburg left, | 1:00:07 | |
Hemingway left, Jim Haynes is no longer. | 1:00:11 | |
He'd been nominated for seat | 1:00:14 | |
on the fourth circuit Court of Appeals. | 1:00:16 | |
He was not confirmed, President Bush renominated him | 1:00:19 | |
in September of 2006. | 1:00:23 | |
And I think he really kept his nose | 1:00:25 | |
out of my business because he had this aspiration of | 1:00:28 | |
he didn't want to generate any attention. | 1:00:32 | |
He wanted to get confirmed. | 1:00:35 | |
And it was after in January of 2007 when his nomination died | 1:00:37 | |
his second death that I think he felt unconstrained | 1:00:41 | |
to screw it. | 1:00:44 | |
I can do what I want to do now. | 1:00:47 | |
And that's when, like I said, | 1:00:49 | |
the same day his nomination was withdrawn | 1:00:50 | |
is the first time he ever picked up the phone | 1:00:52 | |
and called me on a particular case. | 1:00:53 | |
Interviewer | So it seemed like that going | 1:00:57 |
after the next two Hamdan and Kadir | 1:00:59 | |
did you feel in control of those cases? | 1:01:02 | |
Did you feel that again | 1:01:04 | |
the civilian authorities were somewhat | 1:01:06 | |
behind the scenes of DOJ as someone who was involved? | 1:01:09 | |
- | No, on those two I didn't. | 1:01:13 |
There was never anyone that ever press made it | 1:01:17 | |
to pick those two cases to go along with David Hicks. | 1:01:22 | |
They just happened to be cases that were again | 1:01:26 | |
had been in the pipeline for a number of years | 1:01:29 | |
that had prosecutors, | 1:01:32 | |
Jeff Grow Herring was the lead prosecutor in Katar | 1:01:34 | |
still is to this day. | 1:01:37 | |
Hamdan's it was Lieutenant Colonel Steve Couch | 1:01:40 | |
had been working on the case. | 1:01:43 | |
It had been handed off to a Lieutenant Colonel Will Brit | 1:01:45 | |
but they were cases that were | 1:01:48 | |
on the shelf and ready to go. | 1:01:52 | |
And that's how they wound up. | 1:01:55 | |
Interviewer | You felt okay with those cases, | 1:01:58 |
you felt that you could pursue those? | 1:02:00 | |
- | Those are both in my view good cases. | 1:02:02 |
I know there's an argument | 1:02:06 | |
about Cotter and whether he was a child soldier. | 1:02:06 | |
To this day I think a lot of disagreement | 1:02:10 | |
about whether he should be prosecuted, but I never, | 1:02:12 | |
I reviewed the issue | 1:02:17 | |
and my view was the convention on the rights of the child | 1:02:18 | |
specify that when there are provisions | 1:02:23 | |
in there that say anyone below, | 1:02:25 | |
Cotter was 15 at the time he was captured | 1:02:28 | |
there are provisions in the convention | 1:02:32 | |
on the rights of the child that said, | 1:02:34 | |
if you're under the age of 16 | 1:02:37 | |
you can't receive the death penalty or confinement for life. | 1:02:38 | |
We didn't intend to refer the case as a capital case. | 1:02:42 | |
So in my view even though we're not a signatory | 1:02:44 | |
to the convention we were still within the spirit | 1:02:48 | |
of the convention. | 1:02:51 | |
Interviewer | So could you talk a little bit about | 1:02:53 |
just moving on? | 1:02:56 | |
'Cause Hamdan got a light sentence too | 1:02:57 | |
if you will and Cotter still going on. | 1:03:01 | |
So what happened in your role as these are months? | 1:03:03 | |
- | Yeah. Again, I don't recall the exact timeframe. | 1:03:11 |
We went to the arraignment on David Hicks | 1:03:12 | |
and it turned out to be not just an arraignment | 1:03:15 | |
but the whole trial was over and done | 1:03:18 | |
by the end of the week because he pled guilty. | 1:03:20 | |
We went back in June of 2007, I'm sorry | 1:03:23 | |
May of 2007 for the arraignments on Cotter and Hamdan | 1:03:28 | |
and there were two separate judges in each of those cases. | 1:03:34 | |
But in both cases, the judges dismissed the charges | 1:03:37 | |
against them because the military commissions | 1:03:40 | |
act says the military commission has jurisdiction | 1:03:44 | |
over alien unlawful enemy combatants. | 1:03:48 | |
And it says that a finding | 1:03:51 | |
by the combatant status review tribunal is dispositive. | 1:03:53 | |
Well, the combatant status review tribunal only found | 1:03:59 | |
that they were enemy combatants. | 1:04:02 | |
It didn't find that they were unlawful enemy combatants. | 1:04:04 | |
And so the judges in both of those cases said | 1:04:07 | |
we didn't establish jurisdiction because the word | 1:04:10 | |
unlawful was missing from the determination. | 1:04:15 | |
So once again the whole process | 1:04:19 | |
just came to a grinding halt. | 1:04:21 | |
And this was another interesting twist, I guess, | 1:04:25 | |
the time we had the actual trial of David Hicks. | 1:04:32 | |
Joshua Dreytell was his civilian defense counsel. | 1:04:37 | |
The judge wanted Mr. Dreytell to sign an agreement | 1:04:42 | |
that he would abide by, | 1:04:45 | |
there's an agreement civilian counsel have to sign | 1:04:47 | |
to be a military commission defense counsel, | 1:04:52 | |
but it says I'll come by with all laws and regulations | 1:04:54 | |
and rules pertaining to military commissions. | 1:04:57 | |
As I mentioned in a court martial or a military commission | 1:05:00 | |
you have the statute that creates it. | 1:05:03 | |
You have the manual | 1:05:05 | |
for military commissions or manual for court martial. | 1:05:06 | |
That's the more detailed directive. | 1:05:08 | |
And then you have the regulation that implements it. | 1:05:12 | |
At the time we went to trial on Hicks | 1:05:15 | |
the secretary of defense hadn't gotten | 1:05:18 | |
around to publishing the regulation. | 1:05:19 | |
So Mr. Dreytell refused to sign an agreement that he'd abide | 1:05:23 | |
by rules that hadn't been written. | 1:05:26 | |
So which became kind of an interesting little twist | 1:05:29 | |
in the Hicks case. | 1:05:32 | |
But now in a couple of months later we're back in court | 1:05:34 | |
with Hamdan and Cotter and the judges dismiss the charges. | 1:05:37 | |
So immediately I'm getting calls from, | 1:05:41 | |
we're down to get Moe to a big conference call | 1:05:43 | |
with folks from the Pentagon and the justice department. | 1:05:46 | |
And what do we do? | 1:05:49 | |
And I said, "Well, you gotta appeal this decision." | 1:05:51 | |
Well, the way the military commissions are set up | 1:05:54 | |
you go from the convening authority | 1:05:57 | |
to the court of military commission review | 1:05:59 | |
and then into the federal court system. | 1:06:02 | |
Well that point in time | 1:06:04 | |
there was no court military commission review. | 1:06:06 | |
No one had ever been appointed to be a judge | 1:06:08 | |
on the court military commission review. | 1:06:12 | |
There was no rules | 1:06:15 | |
for this court that didn't exist and no address. | 1:06:17 | |
My question was you want me to file an appeal | 1:06:20 | |
where do I file it with this non-existent court? | 1:06:22 | |
So they had to scramble | 1:06:27 | |
and after Hamdan and Cotter, the charges were dismissed. | 1:06:29 | |
First, we asked the judge to reconsider because | 1:06:35 | |
that would buy us another week or two of time | 1:06:37 | |
to try to create this appellate court that didn't exist | 1:06:39 | |
that we could then appeal the judge's ruling too. | 1:06:42 | |
But they managed to over the summer cobbled together | 1:06:46 | |
this non-existent court that we eventually appealed | 1:06:51 | |
Hamdan and Cotter to and I guess one of the last things | 1:06:55 | |
before I resigned was we got a favorable decision | 1:06:57 | |
on the jurisdictional question | 1:07:02 | |
that the judge, the trial judge has the authority | 1:07:03 | |
to make his own independent finding of whether the person | 1:07:07 | |
and whether the government has proved by preponderance | 1:07:09 | |
of evidence that he's an alien unlawful enemy combatant. | 1:07:11 | |
Interviewer | So before we go further | 1:07:17 |
as to why you resigned | 1:07:18 | |
it sounds to me like you're telling us the story | 1:07:19 | |
partly because to show | 1:07:22 | |
that it just wasn't working the way you perceived it | 1:07:23 | |
when you first came in there, is, is that true? | 1:07:26 | |
Or were you surprised at what you saw | 1:07:28 | |
in the last year that you were there | 1:07:30 | |
that you were describing? | 1:07:31 | |
- | Yeah. As I said, my confidence level it tapered off | 1:07:33 |
dramatically when General Altenburg left | 1:07:38 | |
and General Hemingway left and then they were replaced | 1:07:40 | |
by Susan Crawford who was, | 1:07:42 | |
when Dick Cheney was the secretary of defense. | 1:07:46 | |
Susan Crawford was his inspector general. | 1:07:48 | |
When she retired from the Court of Appeals | 1:07:51 | |
for the armed forces, the only person she mentioned by name | 1:07:53 | |
in her retirement speech was David Addington. | 1:07:55 | |
And then now she's the head of the military commission. | 1:07:58 | |
So I didn't have a real high, I don't know her that well | 1:08:01 | |
and she's probably a great human being | 1:08:06 | |
but we've got this process called a military commission | 1:08:07 | |
that historically has been controlled by a military officer | 1:08:11 | |
now being controlled by a friend of the vice president | 1:08:15 | |
whose never served in the military | 1:08:19 | |
which caused me some concern. | 1:08:21 | |
And then when General Hemingway left | 1:08:23 | |
he was replaced by a General Thom Hartmann | 1:08:25 | |
who was an Air Force reserve | 1:08:28 | |
one star who was a corporate attorney for an energy company | 1:08:29 | |
that does business with DOD, in his private life | 1:08:33 | |
who was now called active duty to be the legal advisor. | 1:08:38 | |
So yeah, I went from two people that I had enormous trust in | 1:08:43 | |
to two that-- | 1:08:47 | |
Interviewer | Was Hartmann connected to Cheney? | 1:08:48 |
- | Not that I know of, not that I know. | 1:08:51 |
Interviewer | So could you go on them as | 1:08:56 |
to why you resigned because you put that out? | 1:08:58 | |
- | Right. General Hartman came on board in June of 2007 | 1:09:00 |
the latter part of June. | 1:09:08 | |
Well, actually it was early July. | 1:09:09 | |
That's not right. | 1:09:13 | |
The latter part of June, I met with him. | 1:09:14 | |
I'm sorry. | 1:09:18 | |
General Hartman came on board early July | 1:09:19 | |
because it was the week of July 4th | 1:09:22 | |
'cause I met with him, | 1:09:24 | |
on Monday he showed up his first day on the job, July 4th | 1:09:25 | |
I think was like on a Wednesday. | 1:09:30 | |
And on Friday that week I had surgery at Walter Reed | 1:09:32 | |
for I've had pinched nerve in my neck. | 1:09:36 | |
So I was going to be out for a month having surgery. | 1:09:37 | |
So I got to meet him | 1:09:42 | |
for like 30 minutes that week. | 1:09:43 | |
And then we had the holiday and then I had surgery | 1:09:47 | |
and then I'm gonna be out. | 1:09:49 | |
While I'm out I've started getting calls | 1:09:51 | |
and emails from folks | 1:09:53 | |
at the office going you better hurry up | 1:09:54 | |
and get back in here the general's taken over. | 1:09:57 | |
His job was supposed to be a part of that independent | 1:10:02 | |
neutral convening authority process. | 1:10:05 | |
But now he's taking over the prosecution function, | 1:10:10 | |
reviewing evidence, reviewing charges, | 1:10:14 | |
talking about who's gonna be assigned | 1:10:18 | |
basically becoming both the neutral legal advisor | 1:10:20 | |
and the partisan prosecutor at the same time. | 1:10:25 | |
And so that's when he and I had a fundamental disagreement | 1:10:29 | |
about our respective roles. | 1:10:35 | |
Interviewer | Why do you think that happened? | 1:10:39 |
- | I think General Hartman came in with this expectation | 1:10:44 |
that this process had been screwed up for six years | 1:10:46 | |
and he was gonna be the white Knight | 1:10:50 | |
that was gonna save the day and make everything, | 1:10:52 | |
force this thing through the system | 1:10:57 | |
and get it going and get it done. | 1:10:58 | |
Interviewer | And do you think he wanted you to resign | 1:11:00 |
or he was just doing this in the hope that you would resign | 1:11:02 | |
or do you think he would have pushed you out of your head? | 1:11:04 | |
- | I can say from other people that have worked with him | 1:11:09 |
and from his continued involvement | 1:11:13 | |
after I left that it wasn't just me. | 1:11:16 | |
He treated everybody like a dog | 1:11:18 | |
so it wasn't that I was singled out for his rat. | 1:11:20 | |
That's just him. | 1:11:23 | |
I mean, that was the argument. | 1:11:26 | |
Later I testified in a couple of hearings | 1:11:27 | |
about unlawful command influence because of General Hartman | 1:11:29 | |
and the person that replaced me, Larry Morris | 1:11:32 | |
who was the fourth chief prosecutor. | 1:11:35 | |
Part of his argument was, was look here | 1:11:37 | |
the general might be an overbearing jerk | 1:11:39 | |
but he's that way to everybody. | 1:11:41 | |
To both sides, not just the defense | 1:11:43 | |
he's a jerk to the prosecution too. | 1:11:45 | |
So, but that was just him. | 1:11:47 | |
But in the context of this dispute with him | 1:11:49 | |
one of the things I had raised | 1:11:55 | |
there was a deputy general counsel guy named Paul Nye | 1:11:57 | |
who was the primary point | 1:12:00 | |
of contact for military commission detainee | 1:12:02 | |
related stuff for Jim Haynes office. | 1:12:05 | |
And when Paul came on board, | 1:12:09 | |
I believe this is the summer of 2006, he'd asked me, | 1:12:11 | |
he said, "Who do you work for? | 1:12:15 | |
"And what's your chain of command?" | 1:12:16 | |
And I said, "Well, you asked a good question. | 1:12:18 | |
"There's no wiring diagram that says..." | 1:12:22 | |
Which was odd, | 1:12:25 | |
the military is very power hierarchical, | 1:12:26 | |
you know what your chain of command is, | 1:12:29 | |
mine was never defined. | 1:12:31 | |
And so I had raised that with Paul | 1:12:33 | |
when he became the deputy general counsel. | 1:12:34 | |
And so when this dispute with Hartman blew up | 1:12:39 | |
I'd raised it again said, | 1:12:41 | |
"Look this is another example | 1:12:42 | |
"where nobody knows where the lines of authority are. | 1:12:44 | |
"We need to figure out who does what?" | 1:12:49 | |
And so it eventually led to | 1:12:54 | |
Deputy Secretary of Defense Gordon England on September 4th | 1:12:55 | |
of 2007 published written orders that said | 1:13:01 | |
I report to General Hartman, General Hartman reports | 1:13:06 | |
to Jim Haynes, which made Jim Haynes my second line, | 1:13:10 | |
my second line of command was Jim Haynes. | 1:13:16 | |
I got the order that morning and that afternoon I resigned. | 1:13:21 | |
Interviewer | So when you resigned | 1:13:24 |
how did you feel about that? | 1:13:27 | |
You were the first prosecutor to resign, right? | 1:13:28 | |
- | Right. | 1:13:31 |
Interviewer | For political reasons or for reasons that | 1:13:32 |
how did you feel about that? | 1:13:34 | |
Did you feel, | 1:13:35 | |
you knew the public would be watching you knew everyone. | 1:13:37 | |
I mean, what were you thinking? | 1:13:41 | |
- | I was thinking that, | 1:13:42 |
I guess one of the things I skipped over there | 1:13:46 | |
one of the fundamental disputes that General Hartman | 1:13:48 | |
and I had was over waterboarding | 1:13:50 | |
and torture and General Hartman's view was look | 1:13:53 | |
the president said we don't torture. | 1:13:57 | |
So what makes you think you can say we do? | 1:13:59 | |
I got instructed my folks | 1:14:03 | |
like in Qahtani | 1:14:06 | |
and by the Khalid Sheikh Muhammad had been transferred | 1:14:06 | |
that we were gonna build those cases independent | 1:14:09 | |
of anything they ever said in our custody. | 1:14:11 | |
General Hartman's view was that was good evidence. | 1:14:14 | |
Those confessions were good evidence | 1:14:17 | |
because the president says we don't torture. | 1:14:18 | |
Interviewer | He said that to you? | 1:14:21 |
- | Yes. And he testified to that. | 1:14:22 |
He testified at a Senate judiciary committee hearing | 1:14:24 | |
in December, 2007. | 1:14:27 | |
But his view was that as chief prosecutor | 1:14:29 | |
I didn't have the authority to exclude that evidence | 1:14:32 | |
that the president said we don't torture. | 1:14:37 | |
And if the president said it, then we don't torture. | 1:14:39 | |
And now I've got a written order from Secretary England | 1:14:47 | |
saying this guy is now my commander. | 1:14:50 | |
And then his commanders is Jim Haynes | 1:14:54 | |
who was the guy that signed, that wrote the memo | 1:14:56 | |
that Rumsfeld signed that said waterboarding was A okay. | 1:14:59 | |
So when I took the job, I had told General Rives | 1:15:03 | |
who was the judge advocate general of the Air Force. | 1:15:07 | |
Well, in fact, the first public presentation | 1:15:09 | |
I ever did was in March of 2006 at Case Western | 1:15:12 | |
and it was broadcast on CSPAN | 1:15:17 | |
and somebody in the audience asked me, | 1:15:19 | |
'cause I was there standing up for Guantanamo | 1:15:22 | |
and standing up for the military commissions | 1:15:24 | |
and somebody in the audience asked, | 1:15:28 | |
"Well, what would you do | 1:15:29 | |
"if you ever felt you were being pressured to use evidence | 1:15:30 | |
"that you thought was coerced, what would you do?" | 1:15:33 | |
And I said, "If that ever happens | 1:15:37 | |
"I'll call it a day and head to the house and quit." | 1:15:39 | |
So I told General Rives, | 1:15:41 | |
look I'll keep the job as long as we're committed | 1:15:43 | |
to a full, fair and open trials. | 1:15:47 | |
And I'll stick with this as long as you want me to. | 1:15:48 | |
So on September 4th of 2007 | 1:15:53 | |
when now I've got written orders that say | 1:15:57 | |
I report to Hartman and Hartman reports to Haynes. | 1:16:00 | |
And both of them think waterboarding, | 1:16:03 | |
the president says we don't torture. | 1:16:06 | |
That was when I concluded | 1:16:08 | |
that it was time to call it a day and head to the house. | 1:16:10 | |
Interviewer | Did you inform them | 1:16:11 |
before you publicly announced | 1:16:12 | |
that you might quit and did they respond to that? | 1:16:15 | |
- | No, I was called over. | 1:16:18 |
There'd been this dispute between General Hartman and I | 1:16:21 | |
over where the lines of authority were. | 1:16:23 | |
So I got a call that morning | 1:16:27 | |
from Dan Del Orto saying, | 1:16:28 | |
"Hey, can you come over to the our offices | 1:16:31 | |
"we're in Crystal City, Virginia?" | 1:16:33 | |
He said, "Can you come over to the Pentagon a bit?" | 1:16:37 | |
I don't know what time, 10 o'clock. | 1:16:40 | |
So I go to the Pentagon at 10 and I meet with Dan Del Orto | 1:16:42 | |
and Paul Nye, who was the deputy general counsel. | 1:16:45 | |
And they said, "Hey, we've we finally worked out | 1:16:48 | |
"the chain of command and we've got written orders | 1:16:51 | |
"where is clear now who does what and who reports to who? | 1:16:54 | |
"Here's the copy." | 1:16:57 | |
And it was the order from Secretary England | 1:17:00 | |
that laid out I report to Hartman, Hartman to, | 1:17:04 | |
so I took the order and went back to Crystal City | 1:17:08 | |
and drafted my resignation, | 1:17:12 | |
which they followed up an hour later | 1:17:15 | |
with a written order that I was precluded | 1:17:18 | |
from talking to anyone about why I resigned. | 1:17:20 | |
Interviewer | I had heard that General Hoffman | 1:17:27 |
tried to force you to take on a number of trials | 1:17:28 | |
before the election | 1:17:33 | |
that would look good for the administration. | 1:17:35 | |
- | It wasn't Hartman. | 1:17:38 |
That was actually it was Deputy Secretary England. | 1:17:39 | |
There was a meeting, don't recall the exact date. | 1:17:42 | |
This would have been September of 2006. | 1:17:48 | |
There was a meeting. | 1:17:53 | |
There are a number of different groups that were involved | 1:17:55 | |
in detainees military commission issues. | 1:17:58 | |
Within the Pentagon there was a group, it's called a SOG, | 1:18:03 | |
the SOG, Senior Oversight Group | 1:18:09 | |
which was like the deputy secretary of defense level. | 1:18:11 | |
I mean, it was Gordon England. | 1:18:14 | |
It was Steve Cambodia. | 1:18:19 | |
It was Jim Haynes. | 1:18:21 | |
That level of... | 1:18:22 | |
They met once a week then kind of an action group | 1:18:25 | |
beneath them was called the SUD FUG | 1:18:30 | |
the special detainee follow-up group. | 1:18:34 | |
And those were people | 1:18:37 | |
like my level and General Hemmingways level. | 1:18:37 | |
And it was actually chaired by Pete Garrin | 1:18:40 | |
who was the secretary of the army | 1:18:43 | |
and it met twice a week and it was the more nuts | 1:18:45 | |
and bolts of issues that would crop up. | 1:18:47 | |
And then they reported to the senior oversight group. | 1:18:51 | |
There was an issue in September of 2006. | 1:18:55 | |
They wanted a timeline of, if you remember, September, 2006 | 1:18:58 | |
Congress is just approving the Military Commissions Act | 1:19:03 | |
and we've gotta create the... | 1:19:07 | |
So they wanted a timeline of how, | 1:19:08 | |
kind of a flow of how these things are gonna go. | 1:19:12 | |
And so they asked me to put together a timeline | 1:19:15 | |
and go to the SOG, the Senior Oversight Group | 1:19:17 | |
and present it. | 1:19:19 | |
And that's the only time I ever went to that meeting. | 1:19:20 | |
But it was at that meeting that the Secretary England said | 1:19:26 | |
previously now Khaleed Sheikh Muhammad | 1:19:31 | |
and the high-value guys have just gotten to Gitmo. | 1:19:32 | |
And so he made a comment at that meeting about | 1:19:36 | |
we really need to, | 1:19:39 | |
you need to hurry up and charge these guys | 1:19:41 | |
so that there could be some real political capital | 1:19:43 | |
and getting these things charged before the election. | 1:19:45 | |
Now, in my view, he was referring | 1:19:48 | |
to the midterm elections, not the 2000. | 1:19:51 | |
Yeah. | 1:19:55 | |
And to Jim Haynes credit | 1:19:59 | |
there are very few good things I'll say about Jim Haynes, | 1:19:59 | |
to Jim Haynes credit when Secretary England | 1:20:02 | |
made that comment | 1:20:05 | |
Haynes jumped in and said, "Hey, wait a minute | 1:20:06 | |
"there's only one guy that gets to decide who gets charged | 1:20:08 | |
"and when and that's him and pointed at me." | 1:20:12 | |
So Haynes, Jim Haynes did the right thing | 1:20:14 | |
in that case. | 1:20:18 | |
Interviewer | After you resigned | 1:20:19 |
did Haynes ever talk to you? | 1:20:20 | |
- | No. | 1:20:21 |
Interviewer | Did anybody from the administration | 1:20:23 |
come to you afterwards and talk to you? | 1:20:24 | |
- | No. | 1:20:28 |
Interviewer | They just left you hanging pretty much | 1:20:29 |
or going off on your own? | 1:20:31 | |
- | Right. | 1:20:33 |
Like I said they gave me a written order | 1:20:34 | |
that I was precluded from talking to anyone | 1:20:35 | |
about why I resigned. | 1:20:36 | |
Interviewer | Does that order continue | 1:20:38 |
for the rest of your life? | 1:20:40 | |
- | No, it was from General Hartman | 1:20:42 |
and General Rives who was the judge advocate general | 1:20:45 | |
of the Air Force, who I'd been in communication | 1:20:49 | |
with regularly throughout this whole process | 1:20:51 | |
and who had been extraordinarily supportive of me. | 1:20:55 | |
So when I decided to resign | 1:21:02 | |
I was in communication | 1:21:04 | |
with other senior officers about what I was doing. | 1:21:05 | |
And so he said, look, we'll get you, | 1:21:09 | |
since he is the judge advocate general | 1:21:11 | |
of the Air Force, he said, | 1:21:13 | |
"Once you resigned, we'll get you reassigned back." | 1:21:17 | |
Because at that point I was working for DOD. | 1:21:21 | |
So we'll get you reassigned back to the Air Force | 1:21:23 | |
and we'll move you somewhere else here in DC. | 1:21:25 | |
And he said, | 1:21:28 | |
"Once you're no longer under that chain | 1:21:30 | |
"of command and you're under my chain of command, | 1:21:31 | |
"as long as you're telling the truth | 1:21:34 | |
"and you're not revealing classified information | 1:21:35 | |
"you can say whatever you feel like you need to say." | 1:21:37 | |
So he expedited getting me | 1:21:40 | |
I guess it was about 10 days from the time I resigned | 1:21:43 | |
till I became the director of the Air Force judiciary. | 1:21:45 | |
Interviewer | Oh. And then you were free to talk. | 1:21:48 |
- | Then that chain of command that Secretary England created | 1:21:49 |
no longer existed | 1:21:55 | |
because I no longer worked in that chain of command. | 1:21:56 | |
I worked for General Rives. | 1:21:58 | |
Interviewer | And did general Hartman | 1:22:00 |
ever contact you after that? | 1:22:01 | |
- | No. | 1:22:02 |
- | The only time I ever saw him after that was | 1:22:04 |
at the three times I testified | 1:22:06 | |
about unlawful command influence involving him. | 1:22:10 | |
Woman | Can I ask a question? | 1:22:14 |
Interviewer | Go ahead. | 1:22:16 |
Woman | Were you ever consulted about that chain | 1:22:17 |
of command and allowed to give input | 1:22:20 | |
and if you would to have made a decision | 1:22:23 | |
what would have been at your command? | 1:22:28 | |
- | Oh, okay. | 1:22:31 |
Yes. During the dispute with General Hartman | 1:22:33 | |
I submitted a lengthy memorandum | 1:22:36 | |
to Jim Haynes office about the chain. | 1:22:39 | |
What my view of how this process should be structured | 1:22:43 | |
that the prosecution should be. | 1:22:47 | |
When the Military Commissions Act was being created | 1:22:50 | |
by Congress I got a call | 1:22:55 | |
from Senator Graham, Lindsey Graham's office. | 1:22:57 | |
Senator Graham is till to this day | 1:22:59 | |
a member of the Air Force Reserve JAG corp. | 1:23:03 | |
The first trial I ever did as an Air Force attorney | 1:23:05 | |
in 1984, my opponent was Captain Lindsey Graham. | 1:23:09 | |
So I didn't know him well, but I had known him | 1:23:13 | |
over the years from his Air Force involvement. | 1:23:16 | |
So when Congress began working | 1:23:19 | |
on the Military Commissions Act | 1:23:20 | |
I got a call from his office saying, | 1:23:23 | |
"Could you come over and meet | 1:23:25 | |
"with Senator Graham and Senator McCain?" | 1:23:26 | |
So I went over and met with them. | 1:23:28 | |
And their question to me was | 1:23:30 | |
what do you need to get the job done right? | 1:23:32 | |
And one of the things I mentioned | 1:23:35 | |
to them was my, I mentioned about the hand of DOJ | 1:23:37 | |
and the process and that was getting, | 1:23:42 | |
I can tell you up until my first year there from 2005, | 1:23:45 | |
through 2006 nobody seemed to express much interest | 1:23:51 | |
in what I was doing. | 1:23:57 | |
I mean, I pretty much had a free hand | 1:23:58 | |
to run the place the way I wanted. | 1:24:00 | |
A year later now as you know, | 1:24:03 | |
the high-value detainees are coming to Gitmo | 1:24:05 | |
suddenly everybody and their brother | 1:24:09 | |
had some real strong opinions about how to do my job. | 1:24:11 | |
So I mentioned that to Senator Graham | 1:24:15 | |
and Senator McCain that I thought we needed. | 1:24:18 | |
I mean, the uniform code | 1:24:21 | |
of military justice has a specific provision | 1:24:22 | |
about unlawful command influence. | 1:24:24 | |
And it's really directed at trying to lean on, | 1:24:27 | |
senior people leaning on a judge | 1:24:31 | |
or a juror to try to influence a Court Marshall. | 1:24:33 | |
And I explained to them, I said, | 1:24:37 | |
"Look I'm starting to get a lot of people | 1:24:38 | |
that now have opinions about how I'm doing my job. | 1:24:41 | |
"So we need some protection on this too." | 1:24:45 | |
So they said, | 1:24:49 | |
"Well, how about can you draft up some language | 1:24:50 | |
"to include in the statute?" | 1:24:52 | |
And I did. | 1:24:54 | |
And it's in there for forbade them, what I wrote that says, | 1:24:55 | |
"No one may exercise exert unlawful influence | 1:24:59 | |
"or coercion over any member of the prosecution | 1:25:04 | |
"or defense in the exercise of their professional judgment." | 1:25:07 | |
I wanted to ensure that we had the ability to do the right, | 1:25:12 | |
like on waterboarding. | 1:25:16 | |
If we thought that evidence didn't measure up | 1:25:17 | |
then we ought to be able to exercise | 1:25:20 | |
our professional judgment as prosecutors | 1:25:22 | |
rather than having some outsiders say, | 1:25:24 | |
"Hey the president said, we don't torture. | 1:25:28 | |
"You gotta use it." | 1:25:30 | |
And so they put that in the statute and I talked | 1:25:32 | |
to Senator Graham a year later | 1:25:34 | |
as things started blowing up and he said, | 1:25:37 | |
"Look your interpretation is exactly what we intended." | 1:25:39 | |
He said, yeah, I think he was flabbergasted | 1:25:43 | |
as well that this dispute blew up. | 1:25:45 | |
But to the memorandum I submitted to the general | 1:25:48 | |
counsel's office | 1:25:50 | |
maintain those separate and discreet functions. | 1:25:52 | |
As a prosecutor our job was to review the evidence, | 1:25:56 | |
determined if charges were warranted | 1:26:00 | |
and then to draft those charges, | 1:26:03 | |
then they go to the convening authority | 1:26:05 | |
and her legal advisor. | 1:26:06 | |
And then it's their decision as they did | 1:26:09 | |
like in the Qahtani Case | 1:26:12 | |
they didn't refer it to trial, | 1:26:14 | |
on the Hick's case, Ms. Crawford | 1:26:16 | |
deleted a couple of the charges and made some changes. | 1:26:20 | |
That's their proper function | 1:26:23 | |
but to have the convening authority | 1:26:26 | |
legal advisor also coming over to my office | 1:26:29 | |
and reviewing evidence | 1:26:33 | |
and telling me which cases are gonna... | 1:26:34 | |
That to me was exerting unlawful influence on me. | 1:26:38 | |
Interviewer | What would be the chain of command | 1:26:41 |
as you would see it. | 1:26:43 | |
So who would be your super and just the commuting authority. | 1:26:47 | |
- | Yeah, it would have been the way it had worked | 1:26:51 |
before anything officially existed | 1:26:55 | |
in an order was like general Hemingway | 1:26:59 | |
had been like on my performance evaluations | 1:27:02 | |
as chief prosecutor were written | 1:27:04 | |
by General Hemingway but evaluating, | 1:27:06 | |
and its like the judge advocate general, | 1:27:10 | |
the judge advocate general evaluates the performance | 1:27:11 | |
of the judges on the Air Force court of criminal appeals. | 1:27:14 | |
Evaluating somebody's performance is one role | 1:27:18 | |
telling them how to decide cases is a different story. | 1:27:22 | |
Interviewer | So Hoffman could have evaluated you | 1:27:28 |
if that would been appropriated. | 1:27:30 | |
- | Yes. | 1:27:31 |
Yeah. I think that would have been, | 1:27:33 | |
that's the way it had existed. | 1:27:34 | |
That's the normal way it works in military justice practice. | 1:27:35 | |
It was that additional not just evaluating | 1:27:40 | |
but also directing like, | 1:27:43 | |
we mentioned earlier the case on Muhammad Jawad | 1:27:47 | |
that was one where General Hartman | 1:27:51 | |
from as soon as he got there | 1:27:54 | |
that was a case that was number one on his list | 1:27:57 | |
'cause a lot of these cases were cases like, | 1:28:00 | |
like Hamdan, a guy that was running errands | 1:28:04 | |
and he really liked Jawad. | 1:28:07 | |
Jawad was a case that we referred to as a guy | 1:28:10 | |
with blood on his hands | 1:28:12 | |
because the allegation was that he threw a grenade | 1:28:14 | |
that had wounded some US soldiers. | 1:28:17 | |
So to him, that was what we called a sexy case. | 1:28:22 | |
'Cause it was actually, it's not one of these, | 1:28:24 | |
like some of these guys facilitated travel. | 1:28:27 | |
So they ferried money or airline tickets | 1:28:30 | |
or it didn't mean they weren't bad guys | 1:28:34 | |
but it just went particularly exciting. | 1:28:37 | |
Like somebody that threw a grenade and actually | 1:28:39 | |
hurt somebody. | 1:28:41 | |
So he always, every time we'd talk about which cases | 1:28:42 | |
we were trying to get into the queue, he'd always say, | 1:28:46 | |
"What about the guy threw the grenade? | 1:28:48 | |
"What about the guy that threw the grenade?" | 1:28:51 | |
So when I resigned the first case | 1:28:52 | |
that went forward after I resigned was the guy | 1:28:55 | |
that threw the grenade, who was Jawad. | 1:28:58 | |
Interviewer | Is it appropriate to have Haynes | 1:29:01 |
as the supervisor to Hartman in the way you see it? | 1:29:03 | |
Would that be inappropriate line of authority? | 1:29:07 | |
- | I think it would be again, I think it would be appropriate | 1:29:11 |
for him to evaluate his performance. | 1:29:13 | |
I think it will be inappropriate for him to dictate. | 1:29:16 | |
The convening authority and the legal advisor | 1:29:21 | |
are supposed to render their own professional, | 1:29:22 | |
independent judgment. | 1:29:25 | |
So it would be inappropriate | 1:29:28 | |
for him to exercise, command authority | 1:29:30 | |
and direct how they exercise that judgment. | 1:29:33 | |
Interviewer | You mentioned waterboarding a few times. | 1:29:40 |
So I just wanna get this on the record. | 1:29:42 | |
Did you have no waterboarding at Guantanamo? | 1:29:44 | |
- | No. To my knowledge | 1:29:47 |
no one has ever been waterboarded at Guantanamo or by DOD. | 1:29:49 | |
I mean, to my knowledge | 1:29:53 | |
the only people were ever waterboarded | 1:29:55 | |
or waterboarded while they were in CIA custody. | 1:29:57 | |
Interviewer | Well, there was a CIA a trailer | 1:30:00 |
or several trailers at Guantanamo. | 1:30:02 | |
Could something have gone on there? | 1:30:05 | |
- | To be perfectly honest, | 1:30:08 |
I always felt like I had much greater cooperation | 1:30:10 | |
from the CIA than I did from DOD. | 1:30:12 | |
Now a member of the DOD team, | 1:30:15 | |
but I had more head budding contest with DOD | 1:30:16 | |
than I ever did with the CIA. | 1:30:21 | |
As I said I think the CIA was anxious to get these guys | 1:30:24 | |
off of their books and onto somebody else's | 1:30:27 | |
and always felt like I had, | 1:30:30 | |
I can't say unfettered access | 1:30:33 | |
but they were much more cooperative | 1:30:35 | |
than the DOD intelligence community. | 1:30:37 | |
I mean, Steve Cambodian was the under secretary of defense | 1:30:39 | |
for intelligence who was one of the most, | 1:30:41 | |
he was always the smartest guy in the room | 1:30:46 | |
and he wanted to make sure everybody knew that | 1:30:48 | |
in the first 30 seconds you were in the meeting with him | 1:30:49 | |
that he was impossible to work with. | 1:30:51 | |
I've got, I didn't bring one with me, | 1:30:55 | |
our objective were to have full fair and open trials. | 1:31:00 | |
Almost all of this information was classified. | 1:31:06 | |
So in order to have an open trial or a fair trial, | 1:31:08 | |
I remember having a discussion with Lindsey Graham | 1:31:13 | |
and him saying, the way the old process works | 1:31:15 | |
and the way the current one does | 1:31:20 | |
you can have a closed proceeding. | 1:31:21 | |
As they've done here recently | 1:31:24 | |
where spectators are removed from the courtroom | 1:31:27 | |
under the old the original process | 1:31:30 | |
that the president created | 1:31:33 | |
not only could you exclude the spectators | 1:31:35 | |
you could exclude the accused. | 1:31:37 | |
And I remember Senator Graham saying | 1:31:40 | |
and it just doesn't seem fair to tell a guy, | 1:31:41 | |
"Hey, look if you could have seen the evidence against it | 1:31:43 | |
"you'd understand why we're doing this to you." | 1:31:45 | |
But of course you couldn't because it was classified. | 1:31:47 | |
So part of this process to me that | 1:31:51 | |
was really important was getting information. | 1:31:55 | |
And I think there was over classification, | 1:31:59 | |
everything that was just presumptively classified. | 1:32:05 | |
Some of it should have been a large part | 1:32:09 | |
in my view was inappropriately classified | 1:32:11 | |
but we were trying to get information declassified | 1:32:16 | |
we'd identify statements we wanted to use. | 1:32:22 | |
We'd send them in to the DOD intelligence community asking | 1:32:24 | |
that it be declassified and three or four months later | 1:32:28 | |
we'd get back pages of black lines. | 1:32:31 | |
Man, I've got some at home. | 1:32:33 | |
One of the guys in my office pointed out | 1:32:34 | |
that the only use you could possibly make | 1:32:36 | |
of this information if you turn it sideways | 1:32:39 | |
it kind of looked like the twin towers | 1:32:42 | |
from the black lines, because there was not a visible word | 1:32:44 | |
on the page or the only thing that would be declassified | 1:32:47 | |
is the detainee is a 23 year old year. | 1:32:51 | |
How are you gonna prove guilt beyond a reasonable doubt | 1:32:55 | |
with eight words | 1:32:58 | |
but Cambodia's attitude was a couple | 1:33:01 | |
of meters ahead when he said, | 1:33:06 | |
"Look now don't we have the authority to detain the enemy | 1:33:07 | |
"for the duration of the arm conflict." | 1:33:09 | |
Yes. Is it likely this arm conflict | 1:33:13 | |
is gonna end anytime soon? | 1:33:17 | |
No, but you want me to declassify intelligence | 1:33:19 | |
so you can have a trial when I can keep this guy anyway. | 1:33:24 | |
And that was his attitude. | 1:33:27 | |
Interviewer | So how did the CIA, | 1:33:30 |
what did they do for you? | 1:33:32 | |
You said you had a better relationship with them. | 1:33:33 | |
How did they help you or assist you? | 1:33:35 | |
- | I was trying to think as far as access to people | 1:33:39 |
to information, they were extraordinarily accommodating. | 1:33:44 | |
And again, is it possible they held something back | 1:33:51 | |
and I didn't know about it? | 1:33:56 | |
It is, but it was never my impression | 1:33:58 | |
that that was the case. | 1:34:00 | |
So where with DOD it was like pulling teeth, | 1:34:01 | |
trying to get cooperation. | 1:34:04 | |
And the agency was much more cooperative. | 1:34:06 | |
Interviewer | They would give you evidence. | 1:34:09 |
Is that what you're saying the CIA did for you? | 1:34:10 | |
- | Yeah, we had a database that I believe contained | 1:34:13 |
everything that they had in their possession. | 1:34:16 | |
Interviewer | Some of it classified and some-- | 1:34:21 |
- | All of it, every bit of classified. | 1:34:23 |
And you didn't know what feed when they used to get that? | 1:34:25 | |
- | No, we did. | 1:34:28 |
When we had briefings from the people | 1:34:29 | |
that did the waterboarding, | 1:34:32 | |
we had briefings from them on exactly how they did it. | 1:34:33 | |
Interviewer | I see. | 1:34:37 |
So you knew what treatment was? | 1:34:38 | |
- | Yes. | 1:34:40 |
Interviewer | So that's how you could distinguish? | 1:34:41 |
- | Well, that was where I told the team, | 1:34:43 |
Bob Swan was heading up the high value team | 1:34:46 | |
that we'd build those cases. | 1:34:50 | |
We weren't gonna use anything | 1:34:52 | |
they said in US government custody | 1:34:53 | |
we would build it independent of their statements. | 1:34:55 | |
And again, that's one of the things | 1:34:59 | |
to me was extraordinarily frustrating | 1:35:01 | |
like in this dispute with Hartman over, | 1:35:02 | |
the president says we don't torture. | 1:35:06 | |
I think in the public's mind to this day, | 1:35:11 | |
I think they're huge misperceptions about Guantanamo | 1:35:13 | |
and the military commission. | 1:35:18 | |
I think to this day if you ask most members | 1:35:19 | |
of the public they think the detainees | 1:35:22 | |
live in the dog cages | 1:35:23 | |
that were camp x-ray that every morning | 1:35:25 | |
they wake them up and they waterboard them | 1:35:27 | |
and then through the force feeding | 1:35:30 | |
and then put them back in the dog cage | 1:35:33 | |
and that's not the case. | 1:35:35 | |
So with waterboarding, we're talking about three guys | 1:35:39 | |
that were waterboarded. | 1:35:42 | |
And if you like, Khaleed Sheikh Muhammad, | 1:35:45 | |
I mean there's ample evidence to prove his guilt | 1:35:46 | |
without using anything he's ever said in our custody. | 1:35:50 | |
So what's the point of going into court | 1:35:55 | |
and the nation's gotten a black eye already over this stuff. | 1:35:59 | |
So why go into court and I'll offer up evidence | 1:36:03 | |
that most people would say was obtained by torture? | 1:36:05 | |
Yeah, that's what Hartman was trying to force me to do. | 1:36:10 | |
Now. There's some other cases like Qahtani | 1:36:16 | |
and in some others where in my view | 1:36:18 | |
and I think for most people will agree | 1:36:21 | |
that waterboarding was a step too far. | 1:36:25 | |
And most of the information came from the interrogators | 1:36:31 | |
sitting down get a Subway or McDonald's | 1:36:34 | |
and they'd sit down and took time to develop a rapport. | 1:36:38 | |
And I would say 90% | 1:36:41 | |
or more of the information came that route. | 1:36:43 | |
It was the rare exception when it was the coercive route. | 1:36:46 | |
And somewhere between those two is where | 1:36:53 | |
I think most people would probably strike the balance | 1:36:55 | |
but it was a minority of the cases | 1:36:59 | |
not the majority that were coercive. | 1:37:02 | |
Woman | So why did they use those tactics? | 1:37:06 |
The reason in my view and again this, | 1:37:10 | |
I'll continue. | 1:37:13 | |
In my view the reason they did, | 1:37:15 | |
I came on board in September 05. | 1:37:16 | |
So a lot of this stuff had taken place | 1:37:18 | |
in the years before that. | 1:37:22 | |
So I don't have firsthand on the ground knowledge | 1:37:23 | |
of what happened. | 1:37:28 | |
From what I do know is in the early days | 1:37:30 | |
Guantanamo was not that bad of a place | 1:37:33 | |
other than, the camp x-ray just looks bad. | 1:37:36 | |
But I think as far | 1:37:39 | |
as the way people were treated the military treated them | 1:37:40 | |
much better than I think most people have been | 1:37:46 | |
led to believe as time went on, | 1:37:49 | |
you had senior people in the administration | 1:37:52 | |
like I know Rumsfeld was really aggravated | 1:37:57 | |
that we'd had these folks that get Moe | 1:38:01 | |
for months and not much was percolating out of there. | 1:38:04 | |
And so there was pressure to we need more intelligence. | 1:38:09 | |
And so that's what led to ramping up he coercion | 1:38:13 | |
was to try to squeeze more information out of the detainees. | 1:38:19 | |
Building rapport with somebody takes time | 1:38:24 | |
and to them time was of the essence. | 1:38:26 | |
Interviewer | Did you ever sit in on an interrogation | 1:38:29 |
while you were there? | 1:38:31 | |
- | I never sat in the room. | 1:38:32 |
I actually met personally with some of the detainees, | 1:38:35 | |
a couple of the detainees. | 1:38:38 | |
Interviewer | Why would that be? | 1:38:39 |
- | Oh, we were hoping to do under the old process. | 1:38:42 |
If you go back and look | 1:38:47 | |
at the 10 cases that were originally charged, | 1:38:49 | |
every one of them at least one of the charges | 1:38:50 | |
was conspiracy. | 1:38:52 | |
What we were hoping to do was to find a cooperating | 1:38:54 | |
detainee, somebody that was willing to work | 1:38:57 | |
with us, that spoke English | 1:39:01 | |
and that had a significant involvement in terrorism. | 1:39:03 | |
They could come in to the jury and kind of explain | 1:39:07 | |
we called it Al-Qaeda 101, | 1:39:11 | |
have this person with firsthand knowledge come in. | 1:39:14 | |
Kinda like the mafia cases, | 1:39:16 | |
where you have somebody come in | 1:39:17 | |
and explain how the Gambino crime family was structured. | 1:39:18 | |
We were hoping to find somebody that could come in | 1:39:22 | |
and do the same thing for the Taliban and Al Qaeda. | 1:39:25 | |
And so there were a couple | 1:39:29 | |
of detainees that when I approached the hierarchy | 1:39:30 | |
of Gitmo and explained what we were looking for | 1:39:35 | |
recommended a couple of folks that met the bill. | 1:39:37 | |
And so I had a couple of meetings with a couple | 1:39:41 | |
of detainees to talk about whether they were interested in. | 1:39:43 | |
Interviewer | Were you gonna be negotiating | 1:39:48 |
with them by the sentences, something in exchange for it? | 1:39:50 | |
- | Right. | 1:39:53 |
Interviewer | Did they agree? | 1:39:54 |
- | They were favorably inclined. | 1:39:56 |
Well, unfortunately this whole thing kind of blew up. | 1:39:57 | |
I still feel bad, there were two guys at Gitmo that I said, | 1:40:01 | |
I'll be back. | 1:40:04 | |
And I never made it back because-- | 1:40:06 | |
Interviewer | They could have been witnesses | 1:40:09 |
for the prosecution? | 1:40:10 | |
- | Right? | 1:40:11 |
Now, those were the only two that I ever sat down | 1:40:12 | |
personally with. | 1:40:17 | |
There were others that I watched typically | 1:40:18 | |
the high-value detainees | 1:40:20 | |
and they were transferred to Guantanamo. | 1:40:23 | |
One of the big questions after the president | 1:40:26 | |
officially made the decision that, | 1:40:30 | |
yes that's gonna be the route. | 1:40:32 | |
We're gonna transfer him from the CIA to DOD. | 1:40:33 | |
And they'll go before military commissions. | 1:40:36 | |
Then one of the questions was and I can tell you | 1:40:39 | |
the DOD intelligence community Gitmo. | 1:40:42 | |
You can imagine if you're a young intelligence officer | 1:40:46 | |
and all of a sudden Khaleed Sheikh Muhammad is sitting right | 1:40:50 | |
in your backyard, they were chomping at the bit. | 1:40:52 | |
The CIA maybe didn't get it out of them for two years | 1:40:56 | |
but give me 15 minutes with them | 1:40:59 | |
we'll know where Osama bin Laden is, | 1:41:00 | |
I mean that was kind of the mindset. | 1:41:03 | |
So they were extraordinarily frustrated | 1:41:04 | |
when they were precluded from interrogating | 1:41:08 | |
the high-value detainees. | 1:41:14 | |
What we came up with was called the claim team | 1:41:16 | |
which was a group of law enforcement agents, | 1:41:21 | |
it was a team made up of FBI. | 1:41:27 | |
And I mentioned set of the criminal investigation task force | 1:41:29 | |
which was the military law enforcement component. | 1:41:31 | |
But those two together would go in | 1:41:35 | |
and interview the high-value detainees. | 1:41:39 | |
Now we initially debated whether just to, | 1:41:42 | |
when they showed up at Gitmo in September of 2006, | 1:41:46 | |
until the plane landed and the door open | 1:41:51 | |
we didn't know for sure who or how many were gonna get | 1:41:53 | |
off the airplane, it ended up being 14. | 1:41:57 | |
Now then later Hottie L Rocky was transferred. | 1:42:01 | |
So there are 15 people | 1:42:03 | |
that are in the high-value detainee program. | 1:42:05 | |
We debated over whether just to work | 1:42:09 | |
with the information that already exists. | 1:42:12 | |
Most of the folks like Khaleed Sheikh Muhammad | 1:42:14 | |
there's tons of information. | 1:42:16 | |
Do we stick with that | 1:42:20 | |
or do we make an effort to re-interview them? | 1:42:22 | |
Which is what we decided. | 1:42:27 | |
We figured that we're in no worse shape by trying | 1:42:30 | |
than by not trying. | 1:42:34 | |
I mean if it's gonna be inadmissible | 1:42:35 | |
it's gonna be inadmissible. | 1:42:38 | |
So we elected to use the clean team approach. | 1:42:40 | |
And then the other big point | 1:42:43 | |
of debate was whether to do rights advisements or not. | 1:42:45 | |
And I think with the benefit of hindsight | 1:42:50 | |
if there's a decision I made that I would reconsider | 1:42:52 | |
it might've been the decision not to do rights advisements. | 1:42:55 | |
The primary reason I thought we should not do | 1:43:02 | |
rights advisements is if we went in | 1:43:05 | |
and actually it was early 07 | 1:43:09 | |
by the time we actually implemented the clean teams. | 1:43:11 | |
If we went in, in let's say February of 07 | 1:43:15 | |
and read rights to Khaleed Sheikh Muhammad at Guantanamo | 1:43:17 | |
or we're not also saying | 1:43:23 | |
that everybody that was interviewed at Guantanamo prior | 1:43:25 | |
to February of 2007, had those same rights. | 1:43:27 | |
So the thousands of interviews that had taken place | 1:43:31 | |
the smaller fish are we not admitting | 1:43:37 | |
that all of those were obtained | 1:43:41 | |
in violation of that right. | 1:43:44 | |
So that was the primary reason for not doing it. | 1:43:46 | |
Interviewer | You said you would reconsider that | 1:43:50 |
when to start. | 1:43:52 | |
If you wanna take a break? | 1:43:55 | |
Man | So I was gonna ask you, | 1:43:57 |
you said you might do it differently this time | 1:43:59 | |
but wouldn't that then cause a problem with | 1:44:01 | |
and you'd have to justify about | 1:44:03 | |
thousands of interviews without rights | 1:44:06 | |
Will you justify it then? | 1:44:08 | |
- | The time back you when the decision was made | 1:44:10 |
we were looking at prosecuting | 1:44:13 | |
potentially as many as 70 people. | 1:44:14 | |
And I think from what I've seen as we sit here | 1:44:18 | |
in June of 2010, | 1:44:21 | |
I think I saw were the attorney general said, | 1:44:23 | |
"We're looking at more like 30." | 1:44:26 | |
So if you factor in the 15 high-value detainees | 1:44:29 | |
that only leaves 15 others. | 1:44:31 | |
So and again, I don't know who those other 15 are | 1:44:35 | |
but they're probably significant enough players | 1:44:39 | |
to where there's other evidence, | 1:44:41 | |
and my concern was that we were gonna particularly in some | 1:44:44 | |
of the lesser cases where it was really, | 1:44:47 | |
the evidence was primarily statements | 1:44:50 | |
that if we did the rights advisement | 1:44:53 | |
and all those statements were excluded | 1:44:56 | |
then there were a number of those cases | 1:44:58 | |
we would have would've lost out on. | 1:45:00 | |
But as it turns out I don't think | 1:45:04 | |
they're gonna be prosecuted anyway | 1:45:05 | |
and it wouldn't have mattered. | 1:45:07 | |
Interviewer | You started to say, yes, | 1:45:10 |
you said it on interrogations. | 1:45:12 | |
Can you tell me what that was? | 1:45:13 | |
- | Yeah, I'm sorry. | 1:45:15 |
The only ones like I said that I personally participated in | 1:45:16 | |
with the couple of guys that we were interested in using | 1:45:18 | |
as a cooperating witness. | 1:45:22 | |
When the high-value detainees | 1:45:24 | |
when the clean teams were implemented in early 2007. | 1:45:26 | |
And again, I guess it kind of ties in | 1:45:32 | |
with the last part about the rights advisement. | 1:45:34 | |
Well, the teams wound up doing was essentially | 1:45:38 | |
like a modified cleansing statement telling the detainees | 1:45:40 | |
it wasn't really a rights advisement but saying, | 1:45:45 | |
"Look you're in a different place | 1:45:46 | |
"with different people and we don't care about | 1:45:48 | |
"anything you've said before | 1:45:50 | |
"or if you want to talk fine, if you don't." | 1:45:52 | |
And so it was interesting. | 1:45:56 | |
We didn't know going into it | 1:45:57 | |
how many would wanna talk and how many wouldn't. | 1:45:59 | |
It wound up, I forget the exact numbers | 1:46:05 | |
but the overwhelming majority were more | 1:46:06 | |
than happy to talk. | 1:46:08 | |
In fact, the problem became not | 1:46:10 | |
whether they would talk is whether they'd ever quit. | 1:46:11 | |
'Cause I think for them they enjoyed the rep RTA | 1:46:13 | |
of sitting around talking to the to the law enforcement guys | 1:46:19 | |
and drinking coffee and shooting the breeze. | 1:46:24 | |
Interviewer | You were involved in those? | 1:46:28 |
- | I wasn't involved. | 1:46:30 |
There was just the team members | 1:46:30 | |
the FBI and the set of agents going in | 1:46:32 | |
or sometimes with an interpreter with the individual. | 1:46:35 | |
It was monitored on closed circuit television. | 1:46:39 | |
And so we would sit in the control booth and watch. | 1:46:44 | |
We purposely the attorneys purposely didn't listen | 1:46:48 | |
we only watched, I watched the video | 1:46:54 | |
of what was taking place but didn't listen | 1:46:56 | |
to the audio 'cause we didn't want to become, | 1:46:58 | |
we wouldn't make the attorneys into witnesses. | 1:47:03 | |
We wanted the agents to be the witnesses. | 1:47:05 | |
And then also the command structure | 1:47:09 | |
is part of the deal to do this clean team thing, | 1:47:13 | |
I believe its general, General Admiral Harris | 1:47:16 | |
I believe was the commander at the time. | 1:47:20 | |
But insisted that someone from his staff be... | 1:47:22 | |
He was one responsible for ensuring | 1:47:26 | |
they were being treated humanely. | 1:47:28 | |
And he wanted somebody there that could | 1:47:30 | |
with eyes on that could attest they're not being mistreated. | 1:47:33 | |
So there were a number | 1:47:39 | |
of the high-value sessions where I watched the video | 1:47:40 | |
portion of that. | 1:47:43 | |
Interviewer | And you didn't hear anything | 1:47:45 |
you just visually watch the-- | 1:47:48 | |
- | Correct. | 1:47:50 |
Interviewer | In your time in Guantanamo | 1:47:54 |
did you ever hear or voice, see any abuse | 1:47:55 | |
of any of the prisoners? | 1:47:58 | |
- | I never did. | 1:48:00 |
There were times where, yeah, | 1:48:04 | |
I felt some the detainees were being abusive | 1:48:07 | |
to the guard staff | 1:48:09 | |
but I never saw the other way around. | 1:48:11 | |
Interviewer | And did you go through all the prisons? | 1:48:14 |
View them, did you inspect as a prosecutor? | 1:48:17 | |
- | They didn't really inspect them. | 1:48:21 |
I think other than the facility where there's a | 1:48:24 | |
a special site where the high-value | 1:48:26 | |
detainees are kept, right? | 1:48:29 | |
I never went through that one but all the others | 1:48:31 | |
I believe I've been through on multiple occasions | 1:48:33 | |
Interviewer | Could you have gone through Camp Seven | 1:48:36 |
or you wouldn't have been, were you been permitted to? | 1:48:38 | |
- | I don't know. | 1:48:41 |
I never, I don't know. | 1:48:42 | |
I never really had an occasion to-- | 1:48:45 | |
Interviewer | And had you heard of Camp No | 1:48:51 |
which was in the news at 6 Montenegro? | 1:48:53 | |
- | Yeah. I know where it is. | 1:48:56 |
As I've mentioned before, I think, | 1:49:01 | |
referring to the triple homicide, suicide depending on, | 1:49:03 | |
I'm always at Guantanamo when the suicides happened | 1:49:12 | |
went over in the camps at the time that it happened. | 1:49:15 | |
But yeah, if I was a betting man | 1:49:18 | |
I would bet my bottom dollar that they were suicides. | 1:49:21 | |
It doesn't make sense. | 1:49:29 | |
I was at Gitmo when it happened and when word first got out | 1:49:30 | |
that there three guys were dead. | 1:49:37 | |
There were some names that popped to mind | 1:49:41 | |
that were either significant players | 1:49:43 | |
or there were some in the camps that were troublemakers | 1:49:45 | |
that were feces throwers and hunger strike instigating. | 1:49:48 | |
The three guys that died were, | 1:49:54 | |
when I heard the names, I didn't know who they were. | 1:49:59 | |
They were so insignificant in that they weren't even names | 1:50:01 | |
that I recognize. | 1:50:05 | |
One of the three had been cleared. | 1:50:07 | |
Maybe it was like a week away from going home. | 1:50:10 | |
So I just don't see what the, | 1:50:13 | |
if it had been like Khaleed Sheikh Muhammad | 1:50:17 | |
or even a Hicks or a Hamdan | 1:50:21 | |
or if maybe I could see a rash now | 1:50:23 | |
but I just don't see any, | 1:50:28 | |
particularly if you recall this was June of 2006 | 1:50:30 | |
when that took place. | 1:50:35 | |
So that was still when the president | 1:50:36 | |
hadn't officially announced | 1:50:38 | |
that the high-value detainees were coming to Gitmo. | 1:50:39 | |
So, I mean, Gitmo was on its best behavior. | 1:50:41 | |
I just can't fathom any rationale | 1:50:48 | |
for picking out these three guys | 1:50:52 | |
and killing them and putting that spotlight on Gitmo. | 1:50:55 | |
Interviewer | And you were close enough to the ground | 1:51:00 |
you probably would have heard something | 1:51:02 | |
if nearly half right? | 1:51:03 | |
- | I don't know. | 1:51:06 |
It's certainly not something I could state | 1:51:11 | |
with absolute certainty but I would, I just can't fathom | 1:51:14 | |
Interviewer | Have you've been to Camp No? | 1:51:19 |
You said you know where it is? | 1:51:21 | |
- | Nobody knows it. | 1:51:22 |
I mean, I know where it is | 1:51:23 | |
but it's appeared to me to be an abandoned | 1:51:24 | |
and in Gitmo there tons of, there was a point in time | 1:51:28 | |
when Gitmo was a booming military installation. | 1:51:30 | |
There's a lot of empty buildings and stuff around there | 1:51:34 | |
and that area appeared to me to be unused. | 1:51:40 | |
Interviewer | And then someone told us about | 1:51:45 |
the General's cottage, you know where that is? | 1:51:47 | |
- | General's cottage? No. | 1:51:50 |
Interviewer | General Scottry God had told us | 1:51:51 |
about that term. | 1:51:52 | |
I hadn't heard of it. | 1:51:53 | |
- | No, I'm not familiar with that one. | 1:51:55 |
Interviewer | Did you ever see | 1:51:58 |
any people on hunger strikes? | 1:52:01 | |
- | Yes. In fact, I was trying to recall who, | 1:52:03 |
let me back up, man. | 1:52:09 | |
I did see some of the detainees | 1:52:11 | |
who had been at different points in time. | 1:52:12 | |
Part of, the numbers fluctuated | 1:52:17 | |
on how many were or were not hunger strikers. | 1:52:19 | |
I was trying to recollect one of the commanders, | 1:52:22 | |
remember if it was Harris | 1:52:24 | |
or trying to think who took his place. | 1:52:25 | |
I remember I called one of the commanders when | 1:52:30 | |
they first took command had a tube inserted | 1:52:31 | |
because his view was if you're gonna do it | 1:52:35 | |
to the people that I'm responsible for | 1:52:37 | |
then I wanna experience it. | 1:52:40 | |
Interviewer | Were you present, you saw that? | 1:52:44 |
- | No, my recollection is I was there | 1:52:45 |
at Gitmo when it happened but I wasn't standing | 1:52:49 | |
in the room when they put the tube down his nose. | 1:52:51 | |
Interviewer | And have you ever seen any doctors interact | 1:52:56 |
with the detainees? | 1:53:00 | |
- | They do a day on this, they still do it. | 1:53:07 |
When I was there, the medical staff, they do a daily check. | 1:53:10 | |
Every detainee has an opportunity every day | 1:53:15 | |
to ask for, they got a head cold or whatever | 1:53:18 | |
they get it. | 1:53:23 | |
Everyday there someone from the medical community | 1:53:24 | |
is present. | 1:53:30 | |
So I was there as they did their-- | 1:53:31 | |
Interviewer | Rounds? | 1:53:33 |
- | Their rounds. | 1:53:34 |
And I was trying to recall, | 1:53:35 | |
and I was over in the clinic a time or two | 1:53:37 | |
when a detainee would be ever getting treatment. | 1:53:42 | |
Obviously it wasn't like heart surgery. | 1:53:45 | |
It was something minor but there were times | 1:53:46 | |
when I was over in the detention clinic | 1:53:50 | |
when detainees were present. | 1:53:53 | |
Interviewer | And the doctors always seemed | 1:53:56 |
totally professional to you from your observation? | 1:53:58 | |
- | Yeah. We used to joke about, | 1:54:00 |
I remember I was down there. | 1:54:02 | |
I think what I did | 1:54:06 | |
think it was like, | 1:54:11 | |
I twisted a knee. | 1:54:14 | |
The detention facility has its own clinic | 1:54:18 | |
within the inside the wire. | 1:54:21 | |
For us we had to go to the Naval station to the hospital. | 1:54:24 | |
And I remember I did something | 1:54:29 | |
to my knee and I was having trouble walking. | 1:54:34 | |
I had to go over | 1:54:36 | |
and they basically gave me some Motrin and said | 1:54:37 | |
and you'll see your doctor | 1:54:39 | |
when you get back to the US and I remember we were joking | 1:54:40 | |
about for regular military guys | 1:54:44 | |
for like routine kind of stuff. | 1:54:49 | |
It's you call them make an appointment | 1:54:51 | |
and maybe a month from now | 1:54:53 | |
you get seen at the Pentagon clinic | 1:54:54 | |
or at Walter Reed or whatever, | 1:54:57 | |
if you're a detainee and you've got an ingrown toenail | 1:55:00 | |
somebody is gonna be there today. | 1:55:02 | |
At least my view was they got better medical care | 1:55:06 | |
than we did. | 1:55:10 | |
I've seen It reported what the ratio was | 1:55:14 | |
of medical personnel to, compared to any other | 1:55:16 | |
detention facility of some astronomical ratio | 1:55:22 | |
but I never saw anything that suggested | 1:55:27 | |
to me there was inadequate or inappropriate medical care. | 1:55:29 | |
Interviewer | And did you ever go into the isolation wards | 1:55:34 |
in Guantanamo? | 1:55:37 | |
- | You mean in like Camps Five and Six? | 1:55:39 |
Interviewer | Yeah. | 1:55:41 |
- | Yeah. | 1:55:42 |
Interviewer | And did you ever see | 1:55:43 |
how the men were in isolation | 1:55:44 | |
in terms of for how long they'd be there | 1:55:46 | |
or what kind of conditions they were in? | 1:55:52 | |
- | When I was in college to help pay my way through college | 1:55:59 |
I was a bail bondsman. | 1:56:02 | |
And then afterwards in the military as a prosecutor | 1:56:04 | |
and defense counsel | 1:56:07 | |
I got to see a lot of other, | 1:56:08 | |
I've seen dozens and dozens of prisons and jails. | 1:56:10 | |
I think most Americans are incarcerated | 1:56:15 | |
if they could see the conditions at Camp Five | 1:56:18 | |
and Six would volunteer to trade places because they are, | 1:56:20 | |
I don't know if I showed it, | 1:56:26 | |
I've used it a couple of times | 1:56:29 | |
in some presentations I've done | 1:56:30 | |
I'll put up a picture of a cell | 1:56:31 | |
and I'll ask the audience what's inhumane about the cell | 1:56:33 | |
and people who used to say, | 1:56:37 | |
"Well, it's kind of small | 1:56:38 | |
"and this has got that one little window in it. | 1:56:39 | |
"And that look real pleasant." | 1:56:41 | |
And then I'll put up a picture | 1:56:44 | |
of another cell and go, okay, what's wrong with this cell? | 1:56:44 | |
And they always go, | 1:56:47 | |
"Well, it looks just like the first one." | 1:56:48 | |
And I'll say, "Well, you're exactly right. | 1:56:50 | |
"The first cell is where Congressman Bill Janklow | 1:56:51 | |
"served his sentence. | 1:56:53 | |
"And this is the one where Omar Cotter serving." | 1:56:54 | |
So the blueprints for Camp Five and Six | 1:56:57 | |
were based on existing blueprints for US | 1:57:00 | |
prison facilities were American | 1:57:05 | |
citizens are incarcerated. | 1:57:07 | |
So in my view, the facilities were never. | 1:57:09 | |
And then if you look at while they're in their 20, | 1:57:14 | |
23 hours a day or it was like 22 hours a day, | 1:57:18 | |
out in Florence, Colorado, that's twice as much time | 1:57:23 | |
as those American citizens are allowed out of their cells. | 1:57:27 | |
So I guess it depends on your basis of comparison. | 1:57:30 | |
I know there was a big push after the suicides. | 1:57:36 | |
There was also an uprising where a number | 1:57:40 | |
of the inmates attacked the guards | 1:57:42 | |
right around the time of the suicides. | 1:57:45 | |
You kind of have both events in very close proximity. | 1:57:47 | |
Gitmo went to more of an individual cell arrangement. | 1:57:52 | |
By the time I left in 2007, | 1:57:58 | |
there was a Colonel Bruce Wargo | 1:58:02 | |
was the detention group commander. | 1:58:05 | |
And he was making a real effort to get back | 1:58:06 | |
to the communal environment. | 1:58:08 | |
And he was bringing in | 1:58:12 | |
like language classes and movie nights | 1:58:13 | |
and you're trying to make it a more palatable environment. | 1:58:16 | |
Interviewer | Cool. So 10 years later, | 1:58:25 |
Guantanamo was still open. | 1:58:28 | |
Do you have any thoughts about that? | 1:58:29 | |
- | How long do we have? | 1:58:32 |
(chuckles) | 1:58:34 | |
Yeah, it's disappointing that as we sit here | 1:58:35 | |
in June of 2010, | 1:58:43 | |
that we've still had three trials | 1:58:45 | |
in the history of Guantanamo. | 1:58:49 | |
As we mentioned, David Hicks | 1:58:55 | |
got a nine month sentence | 1:58:56 | |
and essentially a misdemeanor punishment. | 1:58:57 | |
Salim Hamdan effectively got a five | 1:59:02 | |
and a half month sentence. | 1:59:04 | |
You've got about 180 people that are locked up | 1:59:07 | |
at Guantanamo that have never faced trial. | 1:59:10 | |
You've got two people that have been convicted | 1:59:14 | |
as war criminals that are free men. | 1:59:17 | |
So the kind of the running joke was in order to win | 1:59:19 | |
in Gitmo you gotta lose | 1:59:22 | |
and you have to go to court and lose and be convicted | 1:59:23 | |
as a war criminal and you might get to go home | 1:59:25 | |
or you can never face trial and be locked up indefinitely. | 1:59:28 | |
So it's really frustrating. | 1:59:32 | |
I think we really had the potential to have done this right | 1:59:36 | |
from the start had the administration, | 1:59:42 | |
these are gonna be military commissions | 1:59:47 | |
they should have turned it over to the military | 1:59:48 | |
as a mission, assign it to southern commander | 1:59:51 | |
who is responsible for Guantanamo | 1:59:54 | |
turn it over to the military, making a military mission | 1:59:59 | |
and let's get it done and get it done right. | 2:00:01 | |
But you had too many, we used to joke | 2:00:05 | |
about refer to them as the big brains, | 2:00:08 | |
the John Hughes and the David Addington | 2:00:10 | |
and the Jim Haynes that didn't know anything | 2:00:14 | |
about litigation, didn't know anything about the military | 2:00:17 | |
but they were the this vangalis | 2:00:19 | |
that we're gonna run this process. | 2:00:22 | |
And we're sitting here in June of 2010 | 2:00:25 | |
and nothing much has happened. | 2:00:28 | |
So it's unfortunate that the things have ended up this way. | 2:00:32 | |
And it's to me extraordinarily disappointing | 2:00:38 | |
that the current administration who campaigned | 2:00:40 | |
on their respect for the rule of law | 2:00:43 | |
and justice and what a travesty military commissions | 2:00:46 | |
in Guantanamo had been have suddenly flip-flopped | 2:00:50 | |
and have become the third term of the Bush administration | 2:00:54 | |
at least with respect | 2:00:57 | |
to national security and detainees in Gitmo. | 2:00:58 | |
Interviewer | So do you see your light | 2:01:02 |
at the end of this tunnel? | 2:01:03 | |
- | I don't know. | 2:01:06 |
There've been so many times | 2:01:07 | |
over the last couple of years where I thought | 2:01:09 | |
finally and it's never, yeah, | 2:01:12 | |
I've gotten to the point where I'm afraid | 2:01:17 | |
to be optimistic. | 2:01:18 | |
I don't know. | 2:01:23 | |
I don't know how this is gonna turn out. | 2:01:24 | |
I'm hopeful that eventually we'll do it right | 2:01:29 | |
but we've got almost a nine year track record | 2:01:32 | |
of doing it wrong. | 2:01:36 | |
So I don't know, it'd be interesting to say | 2:01:36 | |
as I said, I mean, | 2:01:40 | |
there's nothing wrong with military commissions | 2:01:41 | |
had they been implemented the way they should have been. | 2:01:44 | |
My concern is at this point | 2:01:48 | |
no matter how much you spruce them up | 2:01:50 | |
there's been such a taint on just the words | 2:01:54 | |
military commission around the words Guantanamo | 2:01:57 | |
that there is no amount of antiseptic that can fix that. | 2:02:00 | |
Interviewer | Well, what would you do? | 2:02:06 |
- | If I were king and I could do whatever I wanted. | 2:02:11 |
In my view terrorism is not just a US domestic issue. | 2:02:14 | |
Terrorism affects pretty much every country. | 2:02:19 | |
If you look the last several, | 2:02:22 | |
whether it's England or Spain or Russia or Bali | 2:02:26 | |
or pick your, terrorism's an international problem | 2:02:28 | |
and there's inconsistent standards on how we deal with it. | 2:02:33 | |
And if you look at organizations like Al Qaeda | 2:02:38 | |
and the Geneva conventions were a great by-product | 2:02:39 | |
of World War Two but it was based on | 2:02:44 | |
German soldiers in uniform | 2:02:48 | |
and fighting a country not an ideology like Al Qaeda. | 2:02:50 | |
So we've tried to take in my view, a square peg | 2:02:55 | |
and fit it into a round hole where if I were king, | 2:02:58 | |
I think we should have a international terrorism tribunal. | 2:03:03 | |
Like we have the international criminal court to deal | 2:03:07 | |
with these transnational groups that affect everybody | 2:03:10 | |
and not just us. | 2:03:15 | |
And I'd probably throw piracy into that as well. | 2:03:17 | |
And that's another kind | 2:03:19 | |
of new phenomena that you probably saw months ago | 2:03:20 | |
where the Canadian stopped a group of pirates | 2:03:24 | |
and realized there was nothing they could charge them | 2:03:25 | |
with under Canadian law. | 2:03:27 | |
So they put them back on their boat | 2:03:28 | |
and send them on their way. | 2:03:29 | |
I think groups like that like the Shabaab and Al Qaeda | 2:03:32 | |
and that should be dealt with | 2:03:37 | |
as an international issue and not just a domestic issue. | 2:03:39 | |
Interviewer | And will you close Guantanamo down | 2:03:43 |
if you were able to bring these men | 2:03:45 | |
into international tribunals? | 2:03:48 | |
- | I think that would also ameliorate that problem. | 2:03:51 |
If this was treated by the international community | 2:03:53 | |
then it'd be up to the international community | 2:03:57 | |
to detain and prosecute or release | 2:04:01 | |
or whatever the appropriate decisions are made. | 2:04:04 | |
Again, I think it's unfortunate. | 2:04:08 | |
I think Guantanamo is a safe, clean, | 2:04:09 | |
humane facility that has been just, | 2:04:13 | |
yeah, tarred and feathered | 2:04:17 | |
to the point of being perhaps irredeemable. | 2:04:18 | |
Interviewer | Do you regret that you were | 2:04:22 |
in Guantanamo for that year, less than a few months? | 2:04:24 | |
Are you really betting up? | 2:04:28 | |
- | No. I mean, I fact I was telling the young lady | 2:04:33 |
on the ride from the airport over here | 2:04:35 | |
that if I had to do over again, I'd do it over again. | 2:04:37 | |
'Cause it's frustrating the way that things ended up | 2:04:39 | |
but for an attorney it was probably the most interesting | 2:04:44 | |
23 or 25 months that I ever had. | 2:04:48 | |
And the folks I worked with | 2:04:53 | |
on the prosecution on the defense side as well. | 2:04:55 | |
I mean the folks I worked with 99% | 2:04:57 | |
were extraordinarily talented and dedicated and ethical | 2:05:01 | |
and it's unfortunate but the actions | 2:05:06 | |
of the 1% overshadow the dedication of the 99% | 2:05:08 | |
but it was a great group of folks. | 2:05:14 | |
It was interesting beyond all belief and I'd do it again. | 2:05:15 | |
Interviewer | That was great. | 2:05:23 |
Interviewer | Thank you so much. | 2:05:27 |
- | It was my pleasure. | 2:05:28 |
Sure. | 2:05:29 |
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