Davis, Morris - Interview master file / Witness to Guantanamo / Duke Digital Repository

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

Davis, Morris - Interview master file

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