Lewis, Paul - Interview master file / Witness to Guantanamo / Duke Digital Repository

Johnny

We're rolling.

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Okay. Good morning.

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Good morning.

Interviewer

We are very grateful to you,

0:08

for participating in the "Witness To Guantanamo" project.

0:10

We invite you to speak about your experiences

0:13

and involvement with people associated

0:17

with Guantanamo Bay, Cuba.

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We are hoping to provide you an opportunity

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to tell you a story in your own words.

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We are creating an archive of stories

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that people in the U.S and around the world

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will be able to watch and hear over the future generations.

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Future generations must know what happened in Guantanamo,

0:38

and by telling the story, you're contributing to history.

0:41

If you want to take a break at any time,

0:44

please let us know.

0:46

And if you do say something that you feel was classified

0:48

and you like us to remove it, we can remove it.

0:50

If you tell us at the end of the interview.

0:52

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Great. Much pleasure to be here. Thank you.

0:54

Interviewer

Thank you very much.

0:56

And we'd like to begin by asking me your name.

0:57

If you wouldn't mind, your birthday,

1:00

and a little bit about your schooling background

1:02

to the present.

1:06

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Sure. My name is Paul Lewis, November 17th, 1958,

1:07

so I'm not as young as I used to be.

1:11

I went to University of Notre Dame as a history major.

1:14

So, I think, put things in perspective,

1:17

and then stayed at Notre Dame for law school.

1:19

And I've had three careers.

1:21

I was a litigator, as a judge advocate in the Marine Corps,

1:22

which is good because you get to be both the defense counsel

1:26

and a prosecutor, so you see both sides.

1:29

And I still think like a defense counsel.

1:31

What's the evidence?

1:33

What's the proof?

1:34

Then I was a district attorney in Manhattan.

1:36

I was on "Law and Order,

1:38

not officially, but I walked through the set several times

1:40

on my way to get to the courtroom.

1:43

Then I came down to Washington,

1:46

and was a trial attorney in the organized crime

1:48

and racketeering section.

1:50

So, I went from 500 cases at the DA's office

1:52

to five at DOJ.

1:54

So that was being a litigator.

1:56

Interviewer

Can you tell us what year that was just to?

1:59

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Sure. Was a judge advocate from '84 to '87,

2:01

then I was in the District Attorney's office

2:05

from '87 to '93,

2:07

then at DOJ from '93 to '97.

2:10

But I always wanted to work in policy and on Capitol Hill.

2:12

So, in '97, I went to the House Ethics Committee,

2:17

which I was an attorney and an investigator,

2:23

so I still got to be an attorney,

2:25

but got to do some policy work.

2:27

And ended up being the counsel to the chairman

2:29

in 2003, 2004 when the House investigated

2:33

the majority leader, Tom DeLay,

2:37

and the ethics committee sanctioned him

2:40

three times in two weeks, admonished him.

2:41

Majority leader was not pleased.

2:45

And the chairman I worked for, Joel Hefley,

2:48

soon was no longer the chairman,

2:50

and I was no longer the counsel to the chairman.

2:52

But Mr. Hefley was the number two ranking member...

2:55

Number two Republican on the Armed Services Committee,

3:01

so he asked me to become his council.

3:04

So, in April of 2005, I left the ethics committee,

3:06

walked in as a new attorney

3:10

on the House Armed Services Committee,

3:11

and they handed me the GTMO portfolio,

3:13

and said, "Good luck."

3:15

And so, basically, from 2005,

3:17

I've been doing the Guantanamo issue,

3:20

both from the Capitol Hill perspective,

3:23

and the executive branch perspective,

3:25

and for both parties.

3:27

In 2005, Duncan Hunter,

3:28

Republican was chairman of the committee.

3:30

The Republicans lost the House,

3:33

I went over to the Pentagon,

3:35

and worked for the general counsel over there.

3:37

Obama was elected,

3:43

Jay Johnson came in as the general counsel,

3:44

and asked me to stay,

3:46

so I worked for Mr. Johnson for a year.

3:48

And then the Democrats asked me to come back

3:51

to the House Armed Services Committee,

3:53

as the general counsel.

3:56

Chairman Skelton promised me I wouldn't have to do GTMO,

3:58

and I ended up spending more than half my time was GTMO.

4:01

As you know, the Defense Authorization Bill every year

4:04

would come down to a GTMO provision

4:07

that had a veto threat of some sort.

4:10

And chairman Smith, we'll talk about was very strongly

4:13

in favor of closing GTMO.

4:17

And he had amendment, after amendment

4:18

to close GTMO, which is not the votes.

4:21

But I spent a lot of time working with the White House.

4:24

And eventually, when they formed

4:27

the Office of the Special Envoy,

4:28

the President and Secretary Hagle,

4:31

asked me to become the special Envoy to close GTMO at DoJ.

4:33

Interviewer

I'd love to go through that,

4:37

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Sure.

4:38

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In brief part for each.

So, from the beginning of the 2005,

4:41

what was your sense of Guantanamo

4:43

when you first were assigned the Guantanamo packet?

4:45

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Right. So, GTMO had been open for a couple years,

4:49

and I was aware of it,

4:52

but I've been focusing on ethics issues.

4:53

So, I had the point of view of, you know, an attorney

4:56

looking at an issue, saying this is interesting.

5:00

How, you know, they were not given POW rights,

5:03

that sort of thing,

5:06

but I was totally new to the issue.

5:07

So, the focus of the Armed Services Committee

5:10

was an Abu Ghraib at that time.

5:12

Abu Ghraib had broken on April of 2004,

5:15

but it was still an issue, but starting to bubble up.

5:19

Working for Chairman Hunter,

5:23

he was interested in what he called re-engagement detainees

5:25

that were released from GTMO,

5:29

and either started fighting, or went back to the fight.

5:30

And I don't remember the specific number,

5:35

but it was very low,

5:38

it was like 10 or 11 detainees allegedly.

5:39

And trying to get evidence from the Pentagon about that,

5:42

that was the first focus.

5:46

The second focus was interrogation techniques.

5:48

As we know now, there'd been a series of memos

5:52

back and forth,

5:55

you know, Alberto Moro was concerned,

5:56

but that was all internal to the Pentagon,

5:59

a lot of that had not bubbled up to the public.

6:01

But the committee was starting to say,

6:06

what are the interrogation techniques?

6:08

Things like that.

6:11

And the third issue was the care and treatment

6:11

of the detainees.

6:15

You know, the allegations that they're treated harshly,

6:16

allegations of torture.

6:19

So, it was shifting from a short term,

6:22

so the mindset,

6:26

when 9/11 happened was that the general in the field,

6:30

General Frank said, I've got thousands of prisoners.

6:34

I can't keep them here.

6:37

But, you know, we're being attacked,

6:38

there's an attack, CIA officers were killed,

6:40

so let's get them off the battlefield.

6:44

It was temporary,

6:47

you know, looking back,

6:48

it could have been much different,

6:49

but it was in 2005, it was.

6:50

Okay, we don't know how long this is gonna be,

6:54

but let's upgrade the facilities,

6:56

let's go from concrete and wire to permanent facilities.

6:58

So, there was a focus on,

7:02

you know, health care and things like that.

7:04

Interviewer

Well, what was your role exactly?

7:07

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So, I was counseled to the committee.

7:10

So, you know, there are a lot of subcommittees,

7:12

but I worked directly for the chairman,

7:15

and the general counsel.

7:18

And I was looking into the issues of re-engagement,

7:19

current treatment of the detainees,

7:23

and the the allegations of mistreatment.

7:25

So, General Hood came up and testified, people like that.

7:29

So, there'd be hearings,

7:34

considering legislation,

7:36

that Detainee Treatment Act, if you recall of 2005

7:39

became a huge issue, and it was focused...

7:42

You know, Senator McCain played a major role in that,

7:45

Senator Warner played a major role.

7:49

But to get a bill passed through conference,

7:50

you need the House.

7:53

So, you know, Duncan Hunter

7:55

was key to getting him to agree

7:58

to the Detainee Treatment Act,

8:00

so that was a huge part.

8:01

Interviewer

Were you involved

8:03

in the writing of that act?

8:04

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No. Senator McCain wrote it.

8:06

So, I was involved in,

8:08

you know, there were tweaks that were done to it

8:11

to get it actually passed, but it was what we call,

8:14

you know, sacrosanct language.

8:18

You know, John McCain and Senator Warner

8:20

wanted that language.

8:23

And I remember vividly,

8:24

Senator Warner came over to chairman Hunter's office

8:26

with the language, and said,

8:29

"You know, we finally got President Bush to agree to this."

8:31

So, you know, the...

8:34

What I was doing was explaining what this means,

8:38

what does inhumane mean?

8:40

You know, and common Article 3 and things like that.

8:42

So, it was basically educating the chairman,

8:45

so that he would understand the issue

8:48

when he went into conference.

8:50

But no, we didn't touch the language

8:51

to the Detainee Treatment Act.

8:53

Interviewer

The detainee treatment had more than

8:55

just that particular language about the detainees.

8:57

But for people who are watching this,

9:02

who don't know what we're talking about,

9:04

could you explain it?

9:06

And then, in that same context,

9:07

the Detainee Treatment Act,

9:10

also talks about Sacramento and habeas on some level.

9:11

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Right.

9:14

Interviewer

And so, if you could just distinguish those?

9:15

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Yeah, it's been a while since I've looked at it.

9:17

So there were...

9:19

You know, it's the Detainee Treatment Act of 2005,

9:21

but it actually is a section of a massive bill,

9:24

the Defense Authorization Act.

9:27

So, the Detainee Treatment Act had, I think six sections

9:30

that the key section that people focused on,

9:35

was that it's against the policy of the United States

9:37

to torture or treat in humanely.

9:42

But there was a section dealing with Habeas Rights,

9:44

basically, stripping the Habeas Rights of detainees.

9:49

The Supreme Court had made a ruling in 2004,

9:54

but allowing due process saying all cases

9:58

dealing with the legality of holding a detainee,

10:02

have to go through the U.S Court of Appeals

10:06

for the District of Columbia,

10:09

which handled 95% of the GTMO cases.

10:11

There were cases that could go through other circuits,

10:16

but the judiciary decided we're gonna handle these cases.

10:18

And it's, you know, one level below the Supreme Court,

10:21

you have brilliant judges.

10:24

And it was also a way that,

10:26

to give civilian control over the judicial resolution

10:30

of the detainee process.

10:35

So, that was an important part.

10:37

There's also another section about the Iraqi forces,

10:39

had to be trained, given training and things like that.

10:45

So, it was more than that one paragraph,

10:50

but the paragraph is what was important to Senator McCain,

10:52

and that was the veto threat.

10:56

And the president,

10:57

you know, was did not want to sign it,

10:57

but he did eventually.

11:00

Interviewer

And how did the...

11:02

I hadn't realized you were involved,

11:04

but how did the committee feel about that,

11:06

that this provision had Senator Cain wanted was included?

11:07

Did people support that even if President Bush

11:11

was somewhat reticent?

11:14

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You know, the Armed Services Committee

11:16

is the largest committee in the House, it's 62 members.

11:18

So, you have a broad range

11:22

of policies you have to embrace for the members.

11:26

So, there were members of the committee

11:29

who were against the war in Iraq,

11:32

who were against the war in Afghanistan.

11:33

There are members who felt very strongly,

11:36

so it takes a long time to craft a compromise.

11:37

I think there is broad acknowledgement,

11:44

that, yes, the United States does not want to torture,

11:45

does not want to treat people in humanely,

11:48

but there's also a feeling

11:50

of only want to be able to interrogate detainees.

11:52

We wanna be able to protect the troops.

11:55

So, it's the constant balance we've had since 9/11,

11:57

liberty versus security.

12:01

On the Armed Services Committee,

12:02

probably more of a balance towards the security side,

12:04

but an acknowledgement,

12:08

you know, McCain had a very strong point,

12:10

that if reviewed as acting improperly,

12:12

it's gonna hurt our troops,

12:16

it's gonna hurt the reputation of the United States.

12:17

Not to the level that later on, President Obama raised it,

12:19

but that we do have a moral position as a country.

12:23

It was tricky because the Department of Defense,

12:31

Secretary Rumsfeld was very forceful in saying,

12:35

"We need to have all the tools available in our toolbox.

12:39

And if we need to have strong interrogation techniques

12:43

that are not torture, we should use them."

12:46

So, there's a lot...

12:49

The debate the country's having and the committee had,

12:50

what is cruel and inhumane?

12:53

And as you know, we are in a new world,

12:56

we didn't have Geneva specifically covering these detainees.

12:59

Even back in 2005, there's beginning to be acknowledgement,

13:06

this may take longer than other struggles.

13:09

So, how do you define the end of the war?

13:12

And what does end of hostilities mean

13:15

when you're dealing with,

13:17

you know, something different than GTMO?

13:20

They're not states,

13:22

and it's Geneva was designed for states,

13:23

even though Geneva had additional protocols,

13:26

and the international community was starting

13:29

to struggle with these issues.

13:32

My point to the committee members as a lawyer,

13:34

is the law is unsettled.

13:36

You know, Supreme Court has made very broad determinations

13:38

but it's unsettled.

13:42

But you certainly don't wanna be

13:44

anywhere near being accused to torturing people,

13:46

that's not the United States.

13:49

But frankly, there are some people

13:51

who did not agree with that, they're like,

13:53

"We have to do what we have to do."

13:54

The Bush administration did not wanna have another 9/11,

13:57

which I understand.

14:00

So, I did a lot of explaining.

14:02

So, I had to explain to very liberal members.

14:04

I'm trying to think of the name of the member.

14:08

She was from Georgia as a female African-American member

14:11

who just did not buy any of this.

14:18

And the GTMO to other members who like,

14:22

"I don't see what the issue is."

14:25

So, a lot of explaining.

14:27

Interviewer

And you have a background

14:30

on international law?

14:31

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No. I'm a criminal lawyer.

So, you know, I had, at the highest level,

14:34

I had a understanding of it.

14:37

And I quickly dove in, and did quite a bit of reading.

14:39

You know, one of the benefits

14:43

of being a counsel on the Hill,

14:44

is you have what I call my advisory committee.

14:46

So, you could pick up...

14:49

You figure out who the expert is, pick up the phone,

14:50

you know, somebody at Georgetown and say,

14:53

"Come over and give me an international law 101?

14:55

Give me, you know, a CAT 101."

14:58

And both sides so, you know, you're in favor of this,

15:02

you're against it, so you get to really see the both sides.

15:06

And that what you're doing as a staffer,

15:09

you're going into members

15:11

who may have 15 minutes or whatever.

15:12

So, what you would say is, you know, "Sir, or ma'am,

15:15

this is the issue.

15:17

This is the arguments in favor of the legislation.

15:19

This is the arguments against, this is my recommendation.

15:22

But the bottom line is this is a policy issue,

15:25

because there, the law is not there.

15:28

There's not a law on interrogation techniques at GTMO.

15:31

There's a broad provision,

15:35

but, you know, the army field manual

15:37

which lists specific techniques, it's not statutory."

15:39

So, a lot of...

15:44

So, I educated myself,

15:45

and I'm certainly, I don't have a degree,

15:47

but I've spent, you know, 10 years-15 years now

15:50

studying these issues.

15:53

And a lot of time with the international Red Cross.

15:54

Interviewer

So, did you go down

15:59

to Guantanamo doing that?

16:01

-

Yeah.

Interviewer

How soon after you started,

16:03

did you go down there?

16:04

And why did you go there?

16:05

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Mm-hmm.

I went for, I went...

16:08

I don't remember the date, but I started in April of 2005,

16:09

so I went within the first month or two.

16:13

So, staffers would go because oversight,

16:17

you want to actually get the ground truth

16:20

and see for yourself.

16:23

If you're discussing an issue with a member,

16:24

you want to have...

16:28

You wanna be able to say, I've been there,

16:28

I've talked to the lawyers.

16:30

I've talked to the doctors

16:33

I've talked to the commanding officer.

16:34

And then, we were encouraging members to go.

16:39

So, you want, you know, the members

16:42

who actually have to vote on the issue, they need to know.

16:44

So, from a staff point of view,

16:47

and I think from Chairman Hunter's point of view,

16:49

he wanted the members to go.

16:51

So, you would have the staff go

16:53

as the subject matter experts.

16:55

The members would get a presentation on E Feeding

16:59

from the doctors, and on the plane on the way back,

17:02

and they would say, what's the deal?

17:05

And you'd say, this is the position of the administration,

17:07

these are the arguments against.

17:10

So, as a lawyer, you're really trying to

17:13

present the facts, present the issues

17:19

in an impartial manner,

17:21

and if the members ask you for a recommendation,

17:23

you can give it.

17:25

But these are policymakers who were busy.

17:26

You know, GTMO is one of 500 issues.

17:28

So, you wanna get a reputation as a staffer

17:32

of being impartial,

17:35

and, you know, you have opinions,

17:38

but as a lawyer, you want to give them their options.

17:40

And it was a fascinating time because the law was,

17:42

you know, we had,

17:45

you know, Hamden and Rassul, and Hamdi, but we...

17:46

Those were very broad decisions.

17:50

And you're dealing with,

17:53

you know, the day-to-day care and treatment of detainees

17:55

in a situation that was new for the United States.

17:58

Interviewer

When you came to Guantanamo,

18:01

were you surprised at what you saw,

18:03

or expected what you saw?

18:04

-

I was not surprised because I had done a lot of planning

18:06

and talk to people who had been there.

18:09

And, you know, you have phone calls,

18:11

so I knew what was going to be like.

18:12

But, you know, as I have a standing joke with my kids,

18:18

they're like, "All you do is go to meetings."

18:22

Like every meeting I go to, I learn something,

18:24

so you learn by going.

18:27

So, I wasn't surprised, but,

18:31

you know, I've been to GTMO 30 or 40 times now,

18:34

so I'm trying to think back to the first trip.

18:36

I think my impression from the first trip was,

18:41

I knew the politics was difficult,

18:45

that we're gonna be here for a long time,

18:48

and we're still thinking short term.

18:51

Because the fun thing, the thing about GTMO,

18:54

is we've been there 15 years,

18:55

but we haven't had a 15-year plan,

18:58

we've had 15 one-year plans.

19:00

So, everything started off as temporary,

19:04

as a huge effort to get permanent detention facilities.

19:06

And it's tough to plan.

19:12

If you got the president saying, "We're closing."

19:14

But, you know the base commander is saying,

19:17

"Well, last I checked.,

19:19

You didn't have the votes in Congress to close it.

19:21

So, I need to plan to take care of my troops,

19:24

to take care of the detainees."

19:26

So, there was constant struggle.

19:28

In 2005, I think they built Camp Five or Camp Six,

19:32

I forgot which came first, I think Camp 5,

19:36

which is a modern facility.

19:38

Yeah. They get medical treatment,

19:41

they have housing that is appropriate.

19:45

The thing about GTMO, is it's the long-term nature of it,

19:49

that they're not prisoners,

19:52

they haven't been convicted of anything,

19:55

they're being detained to keep them off the battlefield,

19:56

during the hostilities.

20:00

But what are the hostilities?

20:02

You have the authorization for use of military force,

20:03

which was our legal authority in Afghanistan,

20:06

which was against Al Qaeda, and the perpetrators of 9/11

20:10

and associates.

20:14

You know, what is an associate?

20:15

They amended it in 2011, a little bit broader,

20:18

and the Obama administration

20:21

came in with a different definition.

20:22

But again, it's the indefinite detention.

20:25

Now, you know, we're all aware that

20:28

that's been an issue for many years.

20:31

The Armed Services Committee point of view,

20:34

and the DoD point of view,

20:36

was, we've the right to keep the enemy off the battlefield.

20:38

But certainly, you have to

20:41

follow Common Article 3,

20:45

and then, you know, give due process.

20:47

There is, how do you keep the enemy off the battlefield?

20:51

Yeah, the military's point of view,

20:57

is, you know, the judiciary doesn't need to be involved.

20:59

This is our issue, we handle national security.

21:01

But State Department's saying,

21:04

"Wait a minute, the international community is concerned.

21:06

These are not American citizens.

21:09

Their countries want them back.

21:11

It's becoming a diplomatic issue.

21:13

It's becoming a human rights issue."

21:15

So, it's not just a DoD issue, but DoD had custody,

21:16

and there's no law.

21:22

I mean, members keep saying, what's the law?

21:23

The law is on settled, you can make another law.

21:26

You can make the United States law,

21:28

but there's also international law.

21:33

So, it was fascinating as an attorney.

21:37

Interviewer

Well, when Hamdem was decided,

21:40

and word in the Common Article 3.

21:41

How did that affect the people you work with?

21:44

How did they see that?

21:47

-

So, the Armed Services Committee,

21:49

you've got a lot of former military folks.

21:53

You've got a lot of people

21:56

that are focused domestically in security.

21:59

So, they are not many folks

22:02

in the international affairs area.

22:04

So, I spent a lot of time doing what I did,

22:07

you know, a year before,

22:10

explaining this is...

22:12

They are not prisoners, they are detained.

22:14

They are not POW's for the reasons

22:17

that Bush administration made, but they still...

22:19

So, I spent a lot of time explaining

22:22

Geneva one, two, three, four, Common Article 3;

22:25

Cruel and inhumane treatment.

22:29

But it builds so members,

22:31

you know, they had gone through the debate

22:34

over the Detainee Treatment Act.

22:36

So, Hamden comes down,

22:38

basically saying,

22:41

"No, we have to start military commissions again."

22:42

And so, 2005, where the issues I talked about,

22:46

2006, they started focus...

22:49

The committee started focusing on military commissions.

22:52

Interviewer

They were okay with Common Article 3

22:55

applying to the detainees?

22:57

No one really wanted to challenge that?

22:59

-

No, it was...

23:02

I mean, I think the day after Hamden,

23:03

or right after Hamden,

23:06

within a couple of days, fast for the government,

23:09

Gordon England who was the Deputy Secretary of Defense,

23:12

came out and said, "Common Article 3 will apply."

23:15

So, it was more explaining to members

23:18

who were not trained in international law, what it meant.

23:21

And so, it's, what does this mean?

23:25

How does this affect interrogation and that,

23:29

but the focus after Hamden was,

23:32

how do we get a military commissions system

23:34

that comports with Geneva?

23:38

You're always educating members from a staff point of view,

23:45

of we're detaining the enemy, or allegedly the enemy

23:49

to keep them off the battlefield.

23:53

But then how do we know they're the enemy?

23:55

So, that whole process.

23:56

So, well, how does Habeas come into this?

24:00

Well, you have to have legal authority.

24:02

And even though really an article...

24:04

In World War Two, the courts weren't involved, they are now,

24:08

so you have to deal with it.

24:12

So, I mean, there has to be,

24:13

you have to...

24:15

They have to be a AQ,

24:17

or involved in the attack, or associated somehow,

24:18

or we do not have legal authority to hold them.

24:22

Separate issue is military commissions,

24:24

deciding if somebody is a war criminal,

24:26

is a different issue.

24:29

The focus after Hamden became military commissions,

24:32

so the White House set up legislation,

24:36

which was universally viewed as not sufficient.

24:39

So, you had the House

24:43

and the Senate Armed Services Committee members,

24:45

and staff sitting together saying,

24:48

"We need to do this the right way."

24:51

Did the best they could,

24:53

the Democrats were not happy, voted against it.

24:54

And then Democrats took power, and redid it in 2009.

24:58

You know, I think the executive

25:04

needs to have all the abilities possible.

25:06

I'm not against the idea

25:10

of prosecuting potential war criminals,

25:13

but the military commissions, it's just,

25:16

we have to do something better.

25:19

It's taking too long,

25:20

and you know, the back and forth, and the back and forth

25:21

between Article 3, and military commissions,

25:24

you know, we're 15 years in,

25:28

and not too many final adjudications.

25:29

Interviewer

I wanna get into that.

25:34

But were you involved with the Military Commission

25:35

explaining to the members of the various staffs

25:37

exactly how the law applies there too?

25:42

-

Yes.

25:44

The cycle of legislation is the committee passes,

25:47

the Defense Authorization Act every year.

25:52

The Congress now is basically,

25:54

you know, you can't pass a budget,

25:57

can't pass Appropriations Bill.

25:59

The Armed Services Committees are,

26:01

you know, the Defense Bill was one of the few

26:02

authorization bills that gets passed every year.

26:05

So, you get that done,

26:08

all of a sudden, you know members are leaving

26:09

for the summer or whatever.

26:11

It's an election year, Supreme Court says,

26:13

"You need to...

26:16

You don't have authority to do military commissions."

26:17

So, a process that normally takes year and two months,

26:19

they came up with the Military Commissions Act

26:23

and added it on in conference

26:27

to the Defense Authorization Act.

26:31

So, I spent a lot of time, yes,

26:32

you know, 'cause this is just something...

26:33

So, you've got international law,

26:35

and then you have the overlay of,

26:38

you know, creating a brand new judicial process.

26:40

So, it was like, okay, why is this different

26:46

from the Article 3 courts?

26:49

Why is this different from a court martial?

26:50

So, again, a lot of time educating the members, and just,

26:53

you know, creating a process from scratch.

26:57

You know, Senator Graham was saying,

27:00

"It needs to be like a court-martial."

27:02

The Democrats are saying,

27:04

"We don't think the whole thing is legitimate."

27:06

The administration saying, "Well, we're gonna do this."

27:09

Interviewer

So, by 2008, when McCain and Bush,

27:14

and Obama all went to close Guantanamo,

27:19

what was going on where you were sitting,

27:22

where people behind that?

27:24

-

So, in 2007, the House switched,

27:26

and Secretary Gate's office

27:30

asked me to come over and be the legislative council

27:34

to the general council.

27:39

Basically I handled all legislation

27:40

that dealt with DoD.

27:44

But again, a lot of it was GTMO-related, detainee-related.

27:46

My main focus was Senator Levin was doing an investigation

27:52

on interrogation techniques in GTMO,

27:56

and Abu Ghraib, the SERE techniques.

27:59

But there were two schools of thought,

28:03

President Bush and most of his advisors

28:08

came to the conclusion that GTMO is not sustainable.

28:10

That our allies didn't like it,

28:15

that it was a propaganda tool,

28:17

Bush 43, and his memoirs,

28:20

you know, I know cliff Sloan has spoken to you, you know?

28:23

Bush said, it's a propaganda tool,

28:26

and it's a distraction to our allies.

28:27

Secretary Gates felt that way,

28:31

Secretary Rumsfeld had not felt that way.

28:35

The vice president did not feel that way.

28:38

And there was some folks in Pentagon

28:40

who did not feel that way.

28:41

So, there's a split in the Pentagon,

28:42

but the leadership wanted to close GTMO,

28:44

but there's also the understanding,

28:47

it was really difficult and really hard.

28:49

But there was a consensus of both presidential candidates.

28:53

you know, the incumbent presidents,

29:00

feeling it should be closed yet by,

29:03

I think may of 2009, the Senate was voting 92 to 6,

29:06

to keep detainees in GTMO and not fund it,

29:12

so that consensus was lost in a year.

29:14

Interviewer

Can you explain that?

29:17

-

I'm still...

29:20

Yeah, as we discussed,

29:21

you know, I'm thinking about what happened in GTMO,

29:22

and maybe writing something.

29:24

So, I'm still trying to figure out what happened,

29:27

but the broad picture,

29:29

is you had the underwear bomber on Christmas night of 2009,

29:32

which scared folks.

29:37

Then as you know, a group of...

29:40

There were a group of detainees,

29:41

at GTMO called the Uyghurs,

29:43

who were not Al-Qaeda, were not part of Al-Qaeda,

29:45

not associated, so there's no legal authority to hold them.

29:49

There's the allegation that they're terrorists,

29:53

but if they were terrorist,

29:55

it was against the Chinese government.

29:56

So, the courts were saying,

29:58

"You don't have legal authority to hold these guys."

30:01

But you can't send them back to China,

30:04

because the convention against torture.

30:06

We had more than the preponderance to the evidence

30:08

to believe the Chinese might torture them,

30:13

so State Department could not send them to China.

30:15

And, you know, other countries

30:18

did not want alleged terrorists.

30:20

So, there's a Uyghur community in Fairfax County,

30:22

the administration considered,

30:26

some sort of home release or whatever to Fairfax County.

30:29

But the Congressman from the district was not notified.

30:35

Frank Wolf was a very forceful member,

30:38

he was not pleased,

30:41

so that became an issue.

30:44

Military commissions became an issue.

30:46

The, the administration originally wanted

30:47

to try the 9/11 cases and the Nashari case,

30:50

the Call Bomber Case in New York city, that became an issue.

30:54

So, that,

31:00

and just the feeling of the public changed.

31:02

But it basically, the short answer is politics.

31:10

The Obama administration was focused on healthcare.

31:14

Greg Craig was the White House counsel,

31:17

and trying very hard to close GTMO.

31:19

Dan freed was responsibly transferring detainees,

31:21

if they could go to a country that wanted them.

31:26

Yemen was a problem though,

31:28

was security situation in Yemen,

31:30

many felt was not conducible to transfers.

31:34

So, for whatever reason to change,

31:37

I'm still exploring that.

31:39

But that's the broad consensus right now

31:40

of how you lost the political opportunity.

31:44

But it was frustrating,

31:49

'cause many people still think it could have been closed.

31:50

Interviewer

Right. And I might wanna know about that,

31:52

but you make me think of something.

31:53

Before you came on President Obama's envoy,

31:56

going back to this time actually,

32:00

did you see the DoD working with the governor of state

32:03

on all these issues?

32:07

So, were they really two different camps?

32:08

-

That's a complicated question.

32:12

When I was at DoD from 2007 to 2009,

32:16

I was focused on 9/11 investigation,

32:21

I didn't deal with State that often.

32:23

But I knew that at the broad level,

32:27

there was cooperation that

32:29

Secretary Rumsfeld had said,

32:34

we don't wanna be in the business of detaining.

32:35

So, it was finding a country that had security assurances

32:38

that would be conducive to both departments.

32:42

But when I went to the Hill,

32:47

and started working for Adam Smith,

32:48

first chairman Scranton in 2010,

32:51

the Democrats were still in control.

32:54

The Democrats lost, chairman Scranton loss.

32:57

So, in 2011, Adam Smith from Seattle

32:59

became the ranking member.

33:03

It was still led by DoD, the briefings would come up,

33:06

Bill Leitz Owl would come up,

33:09

who's the head of the office of detainee policy at DoD.

33:12

And there's an understanding of there some friction,

33:15

but that they're working together on transfers.

33:21

The transfer process, two steps;

33:25

State identifies a country that either wants

33:27

their own detainee back or will take Yemeni,

33:29

basically we'll take a citizen from another country

33:33

and they agree that they can watch them,

33:38

that they can keep them from leaving the country,

33:40

that they'll share information with us,

33:43

and that there's some sort of an integration program.

33:45

The problem is, it's two-step process,

33:49

it's not just identifying the country.

33:52

Congress had jumped in, in 2009.

33:54

And a part of the Angst on the part of Congress

33:56

with the transfers, was they felt

33:59

that there were some detainees

34:01

who are going back to the fight,

34:02

and there wasn't proper vetting of the transfer.

34:04

So, they passed a couple series of laws

34:08

saying it changed every year,

34:11

but basically saying

34:13

the buck was on the Secretary of Defense,

34:15

to either determine or certify.

34:18

Certifies a really high standard

34:21

that any threat by the detainee was substantially mitigated.

34:25

Again, what does that mean?

34:29

So, that's subjective.

34:30

There are eight different factors we looked at,

34:31

but it's basically,

34:34

that the country would share intelligence,

34:36

that the country just wouldn't dump them

34:39

in the middle of,

34:41

you know, of city that would have some sort

34:42

of integration process.

34:45

That they would, under their domestic laws,

34:48

keep them from having passports or ID cards,

34:52

so that they wouldn't leave

34:55

and go back to Yemen, or whatever right away.

34:56

And that was always dependent on the domestic laws

34:59

of that country.

35:01

And that they would also keep an eye on them.

35:02

So, the Secretary of Defense had to send a letter

35:07

to the Hill saying, "I agree that this can be done,

35:11

through any, you know, for each different country."

35:14

And so, it didn't create a tension

35:17

between State and defense,

35:21

is just different, you know,

35:22

state's job was to identify a country

35:23

that allegedly could do it.

35:26

DoD had to actually sit down and say,

35:28

"We think this is the right thing to do with this detainee."

35:32

And it really complicated,

35:36

'cause you've got intelligence on detainees.

35:38

You know, I can't go into that,

35:41

but, you know, we're trying to figure out who they are,

35:42

what they wanna do,

35:45

what situation they're going into.

35:47

So, it's just a different decision-making process.

35:49

Part of the process was the Secretary of Defense

35:53

would listen to the joint chiefs of staff,

35:56

you know, who would weigh in from a military point of view.

36:00

Both secretaries, I worked for,

36:05

Secretary Hagle, and Secretary Carter,

36:06

both very much wanted to close GTMO,

36:09

but they also had to acknowledge a statute

36:12

that says, "You don't transfer detainee,

36:15

unless the threat is mitigated."

36:18

Now what's the threat?

36:19

Well, by the time I became the envoy in 2013,

36:21

we had Habeas Corpus proceedings for every detainee

36:25

that who wanted them,

36:28

and, you know, acknowledging that there are people at GTMO

36:30

at the beginning who shouldn't have been there,

36:32

swept up whatever.

36:34

DoD was confident that they had the legal authority

36:37

to hold the detainees that were still there in 2013,

36:40

about 168 when I started.

36:45

A lot of them though,

36:48

even though we had the legal authority to hold them

36:50

if they were AQ associated forces, whatever,

36:52

the feeling was,

36:55

if you go back to a country in which they could do those,

36:58

meet the security assurances,

37:01

a threat of them going back to the fight,

37:04

or joining a fight for the first time, was mitigated enough.

37:06

But it was,

37:10

had to do on a country by country basis.

37:13

The timing was difficult,

37:16

because there are a lot of countries,

37:17

frankly, who wanted to help us,

37:18

but would say, "Well, we don't wanna acknowledge publicly

37:20

that we're working with you

37:24

for our domestic domestic politics."

37:25

Or we have an election coming up,

37:27

or we don't wanna be the first in this continent,

37:29

we want to be the fourth,

37:32

or the third, so get two other countries,

37:33

all things like that.

37:36

So, just State and DoD had a different perspective.

37:37

And I know my colleagues at State would get frustrated.

37:41

You know, we've got a country that's willing to take

37:44

X number of detainees,

37:46

but Secretary Kerry did not have to go up to the Hill

37:47

and explain, you know, why the transfer was made,

37:51

to the Armed Services Committees.

37:55

-

Mm-hmm.

37:56

-

You know,

Secretary Hagle and Secretary Carter had to do that.

37:58

And, you know, they're honorable men.

38:01

The statute says,

38:02

you know it's gotta be mitigated

38:04

and they wanted to close GTMO,

38:06

so they're willing to lean forward,

38:09

but there are some times

38:12

when the secretary would just not be comfortable.

38:13

You know, it's the country's shaky or whatever?

38:16

Interviewer

Did the DoD have more access

38:20

to more information about the detainee than State?

38:25

-

A reach so,

38:32

when the transfer decisions were made

38:35

under the Bush administration,

38:36

there are a couple of different

38:38

processes that were used.

38:42

But basically, there's a lot of input from the inner agency,

38:43

including state,

38:47

but it was a determination made by,

38:48

usually, the Deputy Secretary of Defense,

38:52

and most of the intelligence was DoD.

38:55

Obama came in, and had the executive order,

38:58

task force led by Matt Olsen,

39:00

in which they had a broader...

39:02

They tried to get all the information.

39:04

So, DoD originally was using intelligence they had

39:07

when the detainees are captured.

39:12

Ongoing intelligence,

39:14

but as usually from the defense intelligence agency,

39:15

DoD sources.

39:18

So, the Obama administration said,

39:19

"We want to get all the CIA information.

39:22

We wanna get ODI information."

39:24

So, with the Obama's much, much broader

39:27

array of information.

39:31

Interviewer

But nevertheless,

39:34

the DoD might have issues that State didn't have

39:35

in terms of releasing the men?

39:39

-

Issues in the sense that the secretary of defense

39:41

had the statutory obligation to make the decision.

39:43

Like I said, the statute changes, some change.

39:47

Some years, the Sec Def made the decision

39:49

in consultation with state,

39:52

other years, it was just the secretary.

39:54

But the bottom line was, it was always the secretary

39:57

who signed the letter and felt the obligation to do it.

40:00

So, we started out with 168,

40:06

when I left in January of 2017, there are 41.

40:08

So, there are three categories of 41.

40:14

There are five that were eligible for transfer,

40:16

which I'll go into,

40:19

10 that were part of the military commissions process.

40:20

And 26 that their review process

40:23

determined were still significant threats.

40:25

So, if you're still a significant threat, the thinking was,

40:28

even if a country wanted their citizen back,

40:32

or a third country wanted to take Yemeni,

40:35

the feeling was, these are the guys who say,

40:38

"We want to continue to kill Americans, blow up buildings."

40:41

And any sort of security assurances that I talked about,

40:45

couldn't stop them.

40:48

If somebody wants to, you know, leave a country,

40:49

they probably can.

40:52

So, those 26, that was the whole issue

40:55

where are they gonna go,

40:57

if they're not gonna be transferred out to of GTMO,

40:58

the 10 are gonna be prosecuted.

41:00

So, my point is, there are only five left

41:01

that the inter-agency process

41:05

at a starting point said,

41:09

"We feel the threat is no longer significant,

41:10

but you still have to find the right country, whatever."

41:13

So, I can't go into classified information,

41:16

but the New York Times has said,

41:20

of those five, one of them refuse to go,

41:23

that he had an opportunity to go to a country

41:26

and refuse to go.

41:28

One of them, no country wanted,

41:31

couldn't go back to his country,

41:34

and couldn't chop him to a third country,

41:36

based on his particular background, whatever.

41:38

But, you know, hypothetically,

41:41

maybe he would be making statements like,

41:43

"You know, I'm gonna do bad things."

41:45

Allegedly, according to The Times,

41:48

two of them, Secretary Carter was just not confident,

41:49

even though there's a country willing to take the detainee

41:53

of those factors I talked about,

41:56

Secretary Carter was not comfortable.

41:59

And that was his statutory obligation sometimes to say no,

42:01

because you say no to one transfer,

42:07

doesn't mean you're opposed to closing GTMO,

42:08

because even if you close GTMO,

42:11

there's still gonna be some detainees,

42:14

so does it matter if it's 26 or 27?

42:16

And then, The Time said one detainee

42:19

got the paperwork in too late.

42:21

What that means is if there's gonna be a transfer,

42:24

Congress has to have 30 days notice.

42:26

So, the country decided to take the detainee

42:29

within 30 days of the inauguration.

42:32

And so, the feeling might've been,

42:36

president Trump was clear

42:39

that he wasn't gonna transfer anybody else,

42:40

so why go through this?

42:43

It's an incredibly complicated process

42:44

to get this package to the Secretary.

42:46

You've got 15 years of paperwork involving a detainee,

42:49

all the diplomatic negotiations.

42:52

So, if president Trump's gonna say no,

42:55

you know, leave it to him.

42:59

So, I'll just leave it at that.

43:00

That's what the New York Times concluded about those five.

43:02

But what I would say is, you know

43:05

out of detainee population of 168,

43:08

having only five that were still eligible for transfer

43:13

is not a bad record.

43:17

Now, I have colleagues who say,

43:18

we could have gotten it below those five.

43:20

And I understand that,

43:22

but I think that's a pretty good record.

43:24

Interviewer

Why did President Obama hire you?

43:28

He hadn't had an Envoy in the DoD before.

43:30

What was his reasoning in selecting you?

43:34

-

My joke with my kids it's becomes because I'm special.

43:36

There's never been a special Envoy of DoD.

43:41

That's a title in the Department of State,

43:43

it's, you know, like a Uber ambassador or whatever.

43:46

But the feeling was, like I said, it's a two-part process.

43:49

State can identify opportunities for transfer,

43:54

but DoD has control of the detainees.

43:57

And under the Obama administration,

44:01

had to deal with the statute

44:03

that basically the decision making,

44:05

is by the Secretary of Defense.

44:07

So, it's always been State and DoD.

44:09

And again, I think they basically worked pretty well,

44:12

but there were...

44:15

Like I said, they're different,

44:17

they had different decision-making process.

44:20

State had to identify the country,

44:21

DoD had to make the determination

44:24

on whether this is the right country,

44:26

security reasons, not diplomatic reasons.

44:28

So, the feeling was, let's have two co-equal people

44:31

with the same, you know high title

44:36

that are both presidential envoys, which was great.

44:38

So, we could go into a country,

44:42

and, you know, I was representing the president

44:44

and Secretary of Defense.

44:46

My state colleagues would be representing Secretary Kerry

44:48

and the president.

44:51

So, we would get in, and these were high level meetings.

44:52

We'd meet with the foreign minister,

44:55

the president of the country,

44:57

the chief, the head of state often.

44:58

And, you know, they knew we were speaking for the president,

45:01

and they knew that I would,

45:04

you know, personally would make a recommendation

45:05

to Secretary Hagle or Secretary Carter.

45:09

In the world of Washington,

45:14

you know, nobody has the luxury of working one issue.

45:16

So, I had one issue I could focus on and I could say,

45:21

"I represent the president."

45:24

So, it's, it's a method of prioritizing

45:26

and enhancing the issue.

45:29

The issue was there, no one knew in DoD what an Envoy was.

45:32

So, we quickly determined though,

45:36

that it's a special assistant

45:38

who reports directly

45:40

to the undersecretary for policy,

45:43

and who has access to the secretary.

45:45

So, it was a way of helping,

45:48

you know, the Pentagon bureaucracy,

45:49

we could be here for days.

45:51

But in the Pentagon, being able to say,

45:53

I need to meet the secretary

45:56

or to have the email for the chief of staff, the secretary,

45:58

being, you know one corridor down and E Wing,

46:03

it was an indication, it was important to the president.

46:08

It was a presidential priority,

46:10

it was a priority of the secretary,

46:12

and it allowed me to cut through the bureaucracy.

46:16

Didn't mean that the secretary would still agree,

46:20

but it allowed me to go in,

46:23

and either tell the secretary,

46:25

or secretary of chief of staff,

46:26

or the secretary's counselor,

46:28

this is my recommendation.

46:30

Interviewer

Would you be looking at security issues

46:32

when you would go to these countries?

46:34

What would be your purpose in going,

46:36

and what would therefore, the information

46:38

you bring back to the secretary?

46:41

-

Right. Look at the four issues

46:44

that I talked about earlier.

46:45

You know, did this country have the ability,

46:47

the technical ability to keep an eye on these guys?

46:50

They were not gonna be detained like in GTMO.

46:53

But basically, could they either through human intelligence

46:58

or technology, know where these guys were

47:03

to see if they were starting to meet with the wrong people?

47:05

You know, going to a mosque, that's fine.

47:08

Going to a mosque that's allegedly extremist,

47:11

that's something we wanna know about.

47:15

If the detainee wanted to leave,

47:18

you know, what were the abilities to do so,

47:21

or not do so under the domestic law?

47:25

So, just basically, you know, would they have a passport?

47:27

Would they have an ID?

47:30

That sort of thing.

47:32

And then, very important,

47:33

would that country share intelligence with us?

47:36

So, we always have our unilateral assets, we have our ways.

47:39

You know, the U.S is always gonna try

47:42

to keep an eye on these guys,

47:44

so this is all building on our capabilities.

47:45

Frankly, there are a lot of countries

47:49

who say they wanna help us,

47:50

that wanna share information,

47:52

and would not.

47:53

So, you know, is...

47:55

And then, a lot of them,

47:58

particularly, with the Yemenis coming into a third country.

48:00

So, Saudi Arabia, Oman, United Arab Emirates,

48:03

would take in Yemeni detainees.

48:07

You know, the Saudi Rehab Program,

48:11

Oman modeled off that, UAE model off that,

48:14

but, you know, is it gonna be a six month program?

48:18

Is it going to be...

48:20

You know, did they want these people?

48:21

What was the intent of the country

48:23

where they just wanna make President Obama happy?

48:26

Or were they going to really work to integrate them?

48:29

Who's going to pay for it?

48:32

What sort of oversight?

48:34

What was the goal?

48:36

To wareHouse them for a year or two?

48:38

Or did they wanna make them citizens of the new?

48:41

Was there a path to citizenship in the third country?

48:43

So, that's what I focused on.

48:47

I also focused on just the security situation

48:48

in the country.

48:51

I would look at the Intel that we had on the country.

48:55

Before I went, I would talk to both

48:59

our Intel people in the country,

49:02

our defense people in the country.

49:03

Basically, just to get another...

49:05

To get the information for the questions

49:09

the Secretary of Defense would ask.

49:11

So, okay, State has identified this as an opportunity.

49:13

It's an opportunity,

49:17

now, we're being tasked with the decision,

49:19

are we really gonna do this knowing that the Hill's

49:22

gonna call us up right away?

49:24

That some of them may go back to the fight.

49:27

That's just a fact of life.

49:30

but, you know...

49:31

So, I would go basically, as the eyes and ears

49:35

of the Secretary of Defense,

49:38

knowing I knew what Chuck Hagel was going to ask.

49:39

I knew what Ashton Carter was gonna ask,

49:42

so building on what State had.

49:44

Interviewer

So, when detainee told us.

49:48

Actually, we spoke to a number of detainees.

49:50

You know, one detainees told us, that they had...

49:52

They were not able to get passports

49:55

or any kind of travel documents for three years.

49:58

Others said it could be for eight years.

50:02

Whose decision was that?

50:05

If they, where would they get that information from?

50:06

Why did they think that?

50:09

Is that?

50:11

-

It would be domestic law of the country,

50:11

so every country is different.

50:13

Interviewer

Would you be okay,

50:14

or would Chuck Hagle or Ashton Carter be okay

50:16

with three years, or did U.S want eight years?

50:20

Or what kind of policy did U.S have on that?

50:23

-

So, again, that's something

50:26

I can't talk about in specifics because,

50:28

they're diplomatic negotiations,

50:33

so State doesn't like to talk about those.

50:35

And frankly, there are some countries

50:39

who really wanted to help us,

50:41

but didn't want it to be known.

50:44

So, they didn't want,

50:46

even the fact that we are visiting with them.

50:48

But let's say hypothetically,

50:51

the working premise was you wanted to have...

50:55

We wanted to have an agreement,

50:59

at least for a couple of years, and which country would say,

51:00

"We're gonna do everything under our domestic law

51:05

to make sure this detainee can't travel."

51:07

Not a guarantee, you know, they have court systems in.

51:11

But I wanted to know what that process was.

51:13

And, you know, track record,

51:17

if they'd had previous detainees.

51:19

So, Great Britain, we looked at the process

51:21

in the United Kingdom.

51:23

Again, there's no guarantees in a democracy,

51:25

but the home secretary would have to make determinations,

51:27

things like that.

51:31

If there is a country in which we felt

51:35

they had the willingness to help us,

51:37

but maybe not have the technical ability

51:39

to follow the detainees or whatever,

51:43

we would say, well, maybe this is the country

51:45

where three years is better than two years,

51:47

some countries even more.

51:50

So, as an individual determination based on the country.

51:52

But the detainees were told what,

51:56

you know, what the security assurance is were.

51:59

You know, the understanding was a detainee,

52:05

was not gonna forced to go to a country,

52:08

they did not want to go to.

52:11

And if they didn't understand the circumstances.

52:12

So yeah, do I wanna get out of GTMO?

52:15

Yeah. So, maybe I'll, I'll take a deal.

52:17

But on the other hand,

52:20

the understanding was that, that they knew

52:22

what they were getting into.

52:24

It's just not released,

52:25

it was transfer subject to restrictions.

52:27

Interviewer

That's really important for that,

52:31

because that's not always understood?

52:33

-

Right.

52:35

Interviewer

So, that's what they understood though?

52:36

The detainees understood it was change

52:38

for it's subject to restrictions?

52:40

-

Yes. And I understand,

52:41

you know, there's some things get lost in translation,

52:42

and, you know, sometimes the detainee

52:46

wants to hear what they wanna hear.

52:48

But, you know, either through someone at GTMO,

52:51

or through the Department of State, the detainees were told

52:55

what the security assurances were going to be.

52:58

Interviewer

So, one thing that also interest me,

53:03

is that I noticed, and people have pointed this out as well,

53:05

that a lot of detainees were sent us small towns

53:08

in countries, as opposed to large cities.

53:10

Was that also a security issue

53:13

or is that arbitrary or?

53:16

-

Again, it would be, the country

53:20

would submit a proposed plan, and we would..

53:23

-

Sorry about that.

53:28

-

Excuse me.

-

Pause, for a second.

53:29

-

Yeah, pause.

Interviewer

I think had asked you

53:30

before the light blew on us,

53:31

that, you know, some people went to small towns,

53:33

and many did not go to cities.

53:36

And if that was the decision by the country or by the DoD,

53:38

or is arbitrary, or?

53:42

-

It was usually...

53:44

It was primarily, the decision by the host country.

53:45

They would, we would ask them

53:47

to give us a proposed integration plan,

53:49

and then, we would make recommendations based on that.

53:54

But a lot of the countries,

53:58

you know, a GTMO detainee going to a third country

54:00

would be a public figure,

54:03

and subject to a lot of...

54:07

You know, the concern was that could be recruited

54:09

by terrorist groups.

54:14

So, many countries felt that it better plan

54:14

to keep control of them, keep an eye on them

54:20

would be in a small town.

54:21

But some countries would go with the big town.

54:23

So, you know, we would leave that up to the host country,

54:25

but we would definitely make recommendations to them.

54:29

Interviewer

So, one detainee said

54:33

that he could travel because he's in the EU,

54:36

and they couldn't really stop him, but he didn't...

54:40

But he was afraid to.

54:42

But again, that would be a local country's decision

54:44

that he felt he could travel,

54:47

even though the U.S wanted some surveillance on him?

54:48

-

So, the EU was Schengen zone.

54:52

Yeah, it's, as long as you have

54:55

the proper paperwork,

54:59

you can travel from one country to another country.

55:01

So, that's the sort of thing we would look at

55:03

from the security assurance point of view,

55:06

if we know that they could get identity papers,

55:08

or passports of some sort,

55:12

then we would want to have the country

55:14

to have enhanced capability to keep an eye on them.

55:16

So, you know, the detainees,

55:20

you know, were part of this process,

55:22

they agreed that they wouldn't travel.

55:24

So, you know, if there were surveillance

55:26

and the detainee were clear...

55:29

It was clearly doing things that looked

55:31

like he might be preparing to take a trip,

55:33

the local authorities could then say,

55:35

you know, what are you doing?

55:37

So, you know-

55:39

Interviewer

They agreed,

when they have-

55:41

-

They agreed

that they would not travel, yeah.

55:42

-

For some people find it?

55:43

-

Yeah, yeah.

-

Really?

55:47

-

Yeah.

Interviewer

So, that's why you're saying

55:47

about transfer with exceptions?

55:48

-

Right. But...

55:50

So, my point is there would be a balancing

55:52

of the security assurances.

55:54

So, if the travel ban part of it was weak,

55:56

we would up the surveillance level, that sort of thing,

56:00

and up the integration and that sort of thing,

56:04

so yeah.

56:07

But we knew that the travel restrictions

56:08

were less strong in the EU.

56:11

Interviewer

You might not want to answer this,

56:15

but was the U.S doing its own surveillance,

56:17

or did it rely entirely on?

56:20

-

Like I said, there's always unilateral.

56:22

So, yeah, we would always have...

56:24

You know, we always have intelligence assets,

56:27

but you wanna always have as much as possible.

56:30

So, we would have our unilateral intelligence,

56:33

and then, we would have the other countries.

56:37

And that's where I said, information sharing is important.

56:39

You know, a lot of countries we did not have a lot,

56:43

but we always have our,

56:46

individual abilities.

56:50

Interviewer

From your perspective,

56:52

why did countries agree to take these people?

56:53

-

Three reasons.

56:56

There were category countries

56:59

who just wanted to help President Obama.

57:00

They liked him, they supported him.

57:03

If President Obama asked for something,

57:05

they would try to help him out.

57:08

There's another group of countries

57:10

who just felt that they did not like the idea of GTMO,

57:11

and wanted to help Obama specifically, close GTMO.

57:14

The third broad area is, they used...

57:19

If they felt that if they were doing something

57:22

that was a presidential priority,

57:25

and helping President Obama,

57:27

that it would help their relationship

57:29

with the United States.

57:31

There was never a quid pro quo, anything like that,

57:32

it was always, this was, will you take these detainees?

57:34

And that's it, so there's never,

57:40

you know, anything else.

57:41

But diplomacy being diplomacy,

57:43

you have the president of the United States

57:45

is happy with you,

57:47

that, you know, for a lot of countries,

57:48

that was a good thing.

57:49

And then there's a fourth category, where,

57:51

in addition to just wanting to close GTMO,

57:55

they had specific reasons,

57:58

they wanted their own detaining back.

57:59

Or, you know, they wanted

58:01

to increase their security

58:06

and counter-terrorism relationship with the United States.

58:10

Interviewer

Well, who paid?

58:13

There's no quid pro,

58:14

who paid for detainees to manage day-to-day,

58:16

the housing, and their food, and medical care and such?

58:21

-

It was different for each country.

58:23

Some countries did it all on their own.

58:25

There are some, again, we would ask them for a plan,

58:27

they would tell us.

58:31

So, there are some countries that asked for help.

58:32

If they gave a budget,

58:35

DoD and sometimes state,

58:38

would pay a certain amount of money.

58:40

It was usually,

58:41

you know, about 80,000 per detainees, sometimes it went up.

58:44

It'd be for medical reasons, for security reasons,

58:48

but that had to be notified to Congress.

58:51

So, when money was given,

58:54

notice was given to Congress.

58:57

You know, during the Obama administration,

59:01

when I was the Envoy, every time there a transfer,

59:02

we would go up and brief most of the committees.

59:06

So, yeah, they were like,

59:09

one of the questions was, but yeah.

59:11

But from our point of view,

59:13

if they're asking for money to help them,

59:15

keep somebody under surveillance or whatever, that's good,

59:17

that they're their responsibility seriously and whatever.

59:20

So, there were some countries that got money,

59:24

not an overwhelming amount of money,

59:26

and not in a large number of countries.

59:29

Like Saudi Arabia would do it on their own.

59:31

United Arab Emirates would do it on their own,

59:34

but a poor country, yeah,

59:35

you could make the argument that...

59:38

So, that would have to be approved

59:40

by the Secretary of Defense.

59:41

Most of the money came from DoD.

59:43

Occasionally, State could come up with some money.

59:45

So, that would have to be an individual determination

59:49

by the Sec Def.

59:52

Interviewer

One of the things that we were talking,

59:58

about while the lights are out.

59:59

How did Obama come up with an Envoy?

1:00:02

And how did you get that position?

1:00:05

And was DoD involved?

1:00:07

-

So, President Obama made a speech

1:00:09

to the National Defense University in may of 2013,

1:00:13

you know, reemphasizing towards the clock was ticking.

1:00:18

He really, really, really wanted to close GTMO.

1:00:22

He lifted the moratorium on transfers of Yemenis,

1:00:25

at GTMO, which had come in with the underwear bomber.

1:00:28

And part of the reinvigoration,

1:00:32

was he would have two special envoys to help close GTMO.

1:00:35

State Department, that's a title,

1:00:41

a special Envoy has never been a title at DoD,

1:00:43

so it was kinda created.

1:00:45

But it was basically because there are two parts,

1:00:48

State identifies country,

1:00:50

but DoD has to implement

1:00:52

the congressional statutory language.

1:00:54

So, it felt there needed to be

1:00:56

somebody of senior presidential appointee level

1:00:59

from both departments, to go to countries and say,

1:01:02

"This is, you know, this is a presidential priority.

1:01:05

We're here on behalf of both the president

1:01:08

and the Secretary of Defense, and secretary of state."

1:01:11

It really helped us get entree

1:01:14

at the highest level to these countries.

1:01:16

So, I think it was a good idea.

1:01:18

It's my understanding though,

1:01:21

that DoD was not informed of that.

1:01:22

And so, it was a new idea that DoD

1:01:25

had to kind of think through.

1:01:27

So, I was the minority general counsel

1:01:31

for the House armed service committee.

1:01:33

As I said, I spent a lot of time GTMO,

1:01:34

work with the White House.

1:01:36

And they had a hard time selling the job.

1:01:38

-

Why?

1:01:41

Is, you know,

GTMO is just...

1:01:43

Is politically controversial.

1:01:44

It's my understanding,

1:01:48

they asked three or four people, and it was declined.

1:01:50

And they asked me and I felt I could make a difference.

1:01:52

And I wanted to help out.

1:01:56

I agreed with the president that GTMO should be closed.

1:01:58

I knew DoD is a bureaucracy,

1:02:01

but I knew Secretary Hagle,

1:02:04

you know, as a Senator was very forceful in saying

1:02:07

that GTMO should be closed.

1:02:10

I did go over and talk to people at DoD beforehand,

1:02:12

and was assured that the department

1:02:16

wanted to support the president.

1:02:19

So, I took it as an opportunity to make a difference.

1:02:22

Interviewer

So, the other people?

1:02:25

Was GTMO poison to their career?

1:02:30

Is that why they were turning it down?

1:02:32

Or why did other people turn it down?

1:02:34

-

I just heard that they would...

1:02:37

They offered the job to,

1:02:39

you know, retired generals and people like that.

1:02:40

And, you know, the joke was General X

1:02:44

wanted his own plane and a staff of 40, whatever.

1:02:46

But look, you're not...

1:02:50

GTMO is like when I was on the ethics committee,

1:02:52

you know, there are people who want GTMO to stay open,

1:02:55

or people wanted it to stay close.

1:02:57

So, I would go up to the Hill and brief,

1:02:59

the Democrats would be like,

1:03:01

"How come you haven't transferred more people."

1:03:02

Republicans would be like, "You're reckless."

1:03:04

So, it's just the thankless job.

1:03:07

So, you know,

1:03:08

for whatever reason,

1:03:11

you know, they made me the offer

1:03:13

and I felt I could make a difference.

1:03:14

But yeah, in Washington,

1:03:16

it was considered a very difficult job.

1:03:18

Interviewer

Did not Lee Wolosky at the time?

1:03:20

-

I did not. No.

1:03:23

So, I started, Cliff Sloan was the Envoy for state.

1:03:24

I did not know him,

1:03:29

but I met him before I took the position.

1:03:30

So, he was a partner at a law firm,

1:03:33

very well-respected,

1:03:37

argued cases in front of the Supreme Court.

1:03:38

Then he left after about a year,

1:03:41

and you know, you've talked to him,

1:03:43

and he did a great job for a hard worker.

1:03:45

But he's a little frustrated.

1:03:47

There were detainees that had chances to go to states,

1:03:48

countries that State had identified,

1:03:53

and Sec Def just wasn't there yet.

1:03:55

So, then Lee came in,

1:03:59

who was a partner at a law firm in New York.

1:04:02

And again, very hard worker.

1:04:06

Lee Wolosky is a pit bull.

1:04:08

-

Is he?

1:04:10

-

Yes, oh, yeah.

He's tenacious.

1:04:11

So, you know, you'd go into a country,

1:04:14

and you'd meet the leadership either the foreign minister,

1:04:17

the head of state, and be able to say,

1:04:20

we're representing the president,

1:04:22

and we're representing the two main bureaucracies

1:04:25

that deal with this issue,

1:04:28

obviously, State and the joint staff...

1:04:29

The DOJ, DHS, the Intel community,

1:04:32

and joint staff also were very key.

1:04:36

But state, or the diplomats and DoD had the detainees,

1:04:39

so they were the most important bureaucracies.

1:04:43

Again, we got everybody transferred

1:04:47

that was eligible, but five.

1:04:49

Interviewer

So, listening to you, I'm thinking,

1:04:51

did Chuck Hagel personally select you,

1:04:53

or did he feel he needed the Envoy

1:04:56

be someone he could work with

1:04:59

and that he could trust?

1:05:00

Because given that you had said...

1:05:01

And I want you to simplify that,

1:05:03

he had a lot of integrity in making choices,

1:05:04

and he actually would not make choices when,

1:05:07

even, I assume President Obama wanted him to.

1:05:10

So, did he count on you to give him,

1:05:14

kind of information he needed that he could trust or?

1:05:17

-

So, it's a two step process.

1:05:19

The president, you know, the White House,

1:05:21

you know, vetted me and agreed,

1:05:23

you know, made me the offer

1:05:24

but then it had Secretary Hagle had to agree.

1:05:25

So, Jim Miller, who was the undersecretary for policy,

1:05:27

you know, interviewed me very closely,

1:05:31

but it was Hagel's decision.

1:05:33

But Secretary Hagle was very direct.

1:05:35

He said, "I want you to tell me the facts.

1:05:38

I want you to tell me the pros for a decision.

1:05:40

I want you to tell me the cons,

1:05:43

and I want you to make a recommendation."

1:05:45

So, my goal was to give him the information

1:05:47

he needed to make a decision.

1:05:51

So, I would tell him,

1:05:52

this is the security situation in the country.

1:05:54

You know, we had talked offline about Mauritania.

1:05:58

There is a detainee

1:06:01

in Mauritanian, government wanted back.

1:06:03

But Mauritania, you know, the president,

1:06:05

incoming president had taken power,

1:06:09

I think through a coup,

1:06:10

there were rumblings in the media

1:06:12

that his government wasn't stable.

1:06:14

So, you know, hypothetically,

1:06:16

that's the sort of thing Secretary Hagel would say,

1:06:18

"What's the intelligence?"

1:06:21

You know, again, there's,

1:06:22

you don't know what's gonna happen,

1:06:23

but what is the intelligence community saying

1:06:25

about the security situation?

1:06:28

Mauritania is a small country.

1:06:31

Do they have the capability of watching somebody,

1:06:33

if they, you know, if we bring them back,

1:06:36

those sort of things.

1:06:38

So, he wanted to know the unvarnished,

1:06:39

you know, drill down,

1:06:43

and, you know, that's what a lawyer does.

1:06:45

So, you know, this is the issue,

1:06:47

the government has it, the president of Morocco.

1:06:50

You know, publicly said, "We will take this guy.

1:06:52

We will watch him."

1:06:55

So, there is willingness,

1:06:56

but then the issue would be,

1:06:58

do they have the capability of following through?

1:07:01

And what's, you know, where are we gonna be

1:07:03

two years from now?

1:07:05

We're going to be when the,

1:07:06

you know, the Obama administration is out of office,

1:07:07

and we have these detainees that have been transferred,

1:07:10

who is going to do the follow-up?

1:07:12

Because unfortunately,

1:07:15

some of them don't like the United States.

1:07:16

And, you know, Congress is saying,

1:07:19

if this guy comes out,

1:07:22

and is fighting American troops, how can we justify that?

1:07:24

You know, there's no perfect solution.

1:07:29

If you detain them, it's gonna radicalize people,

1:07:31

a large portion of the world thinks

1:07:37

that that's a bad thing to detain them.

1:07:40

On the other hand, if you release 'em and they go back

1:07:42

and they kill an American, how do you justify that?

1:07:44

You know, give those facts to the secretary

1:07:49

both Secretary Hagle and Carter, they wanted the facts,

1:07:51

they wanted the arguments in favor of a transfer.

1:07:54

They wanted the arguments against,

1:07:57

so sometimes I'd play devil's advocate,

1:07:59

and then I would make a recommendation.

1:08:01

Interviewer

Do you ever recommend negative?

1:08:04

-

Yes, sometimes.

1:08:07

It's just the timing.

1:08:08

Yeah. I wanted to close GTMO,

1:08:09

but that didn't mean that an individual country,

1:08:11

met all of the four security insurances,

1:08:14

that we required at that time.

1:08:17

And being on the Hill,

1:08:19

you know, my fear was, we would appear to be

1:08:21

transferring somebody too soon

1:08:26

in order to get the number down,

1:08:28

and build up opposition on the Hill.

1:08:30

So, I knew

1:08:32

that any deal to close GTMO had to go through the Hill.

1:08:34

So, you know,

1:08:37

if we appeared to be a reasonable, which we were,

1:08:38

you know, so sometimes I said, no,

1:08:43

I would say not right now.

1:08:45

Interviewer

Hmm. So, I don't want to comment.

1:08:47

But it's fascinating.

1:08:50

-

Yeah.

Interviewer

So, would someone like Cliff Stone,

1:08:51

or Lee Wolosky said to you,

1:08:53

"Look, Paul, you need to let this guy,

1:08:54

we need to release these guys."

1:08:57

-

Well, we haven't.

1:08:59

The president wanted to close GTMO.

1:09:01

The goal was to get the number at GTMO

1:09:03

as small as possible.

1:09:05

So, you go to the Hill and say,

1:09:07

you know, we have a very small number left,

1:09:09

you know, right now, 26.

1:09:12

Can we not detain them responsibly in the United States?

1:09:15

You know, so the goal was to get the number

1:09:18

as low as possible, which I understand.

1:09:22

Now, Cliff and Lee and I would have very frank discussions.

1:09:25

We'd have Frank discussions with the NSC.

1:09:28

It was the degree of risk,

1:09:31

that the Secretary of Defense was willing to take.

1:09:35

And under the statute,

1:09:39

the threat had to be substantially mitigated.

1:09:41

So, it was like, you've got the president of the country

1:09:45

saying, we'll take this guy,

1:09:48

but, you know, what does that mean

1:09:49

when their security services, you know, 20 people?

1:09:52

And they've got, you know, hundreds of AQ people.

1:09:55

The State Department's Envoy,

1:10:02

their job was to be an advocate to get somebody transferred.

1:10:04

My job was to pursue the president's policy

1:10:07

to transfer everybody we could responsibly,

1:10:11

but also tell the secretary, the risks.

1:10:13

And sometimes I agreed with State that,

1:10:17

yeah, we wanna transfer this person,

1:10:21

but maybe now is not the time,

1:10:23

both for security reasons and political reasons.

1:10:25

Now, we had legislative affairs people and whatever,

1:10:29

and they would say,

1:10:32

you know, just transfer them

1:10:33

and we'll deal with the politics.

1:10:35

But I was creature of the Hill and whatever.

1:10:36

But I supported the policy,

1:10:40

and I wanted to get the number down,

1:10:42

but that didn't mean we had to transfer somebody

1:10:44

in may of 2014,

1:10:46

maybe wait until December of 2014.

1:10:48

Interviewer

Why is that better than?

1:10:53

Why six months later, is that better?

1:10:55

-

Maybe, the security situation

1:10:57

in the country would be better.

1:10:58

Interviewer

Okay. And did you?

1:11:01

-

Or we do a test case.

1:11:02

Send a couple of people to a country, see how they do.

1:11:03

So, you saw like with Oman, we sent tranches of 10 and 10,

1:11:07

or I think maybe it was four, and then six, and then 10.

1:11:13

But see how they do, see how the country does.

1:11:17

Interviewer

Wow, I see, that's interesting.

1:11:19

And did you, were you involved in Obama's seeming...

1:11:23

And this is all media frustration in not...

1:11:27

In having Secretary Hagle slow down the process

1:11:31

because he was being more circumspect?

1:11:35

-

Well, Secretary Hagle had to comply with the statute.

1:11:38

Interviewer

Right.

1:11:42

-

It was very clear that the White House

1:11:46

wanted to transfer as many people as possible.

1:11:48

It was very clear that Secretary Hagle

1:11:51

wanted to close GTMO,

1:11:52

and the intersection of political party and statute.

1:11:55

I mean, Hagle transferred,

1:11:59

you know, 44 detainees,

1:12:00

that's a lot, that's a lot more than Panetta did.

1:12:04

So, you know, maybe not each detainee transferred

1:12:08

when other folks would want them, but he transferred 44.

1:12:13

And again, my point was, by the time we left office,

1:12:16

there are only five that were eligible for transfer.

1:12:19

A couple of...

1:12:23

There was an issue...

1:12:23

There was allegedly, according to Times,

1:12:24

a reasonable issue why each of those wasn't transferred.

1:12:27

Look, you know, we all worked for the president.

1:12:34

If the President had a priority, we all agreed with it.

1:12:36

It's just the implementation on a daily basis

1:12:39

of that priority.

1:12:41

You know, Secretary Hagle and President Obama

1:12:44

talked on a regular basis,

1:12:46

you know, he knew what the president wanted,

1:12:49

President knew his position.

1:12:51

Interviewer

Well, this is all fascinating.

1:12:53

This is great.

1:12:54

I wanna go back to that in a minute,

1:12:56

but as long as I'm reminded,

1:12:57

I'd read, maybe it's the Times as somewhere that,

1:12:58

you know, President Trump has no of person,

1:13:02

of course, as we know, no Envoy.

1:13:06

No one really, according to the Times or where I read it.

1:13:07

No one really supervising the security

1:13:11

of these men who were released.

1:13:13

Is that what you understand?

1:13:15

-

So, you had...

1:13:18

You know, like I said, the security assurances

1:13:20

were for different periods of time in different countries.

1:13:24

So, the security assurances,

1:13:27

if they're in place,

1:13:30

they're, you know, DoD,

1:13:32

the State Department, and the Intel community,

1:13:34

you know, are all working with those governments.

1:13:38

Interviewer

They still can do that?

1:13:40

-

If this assurances are out of place,

1:13:43

there's an understanding that either

1:13:46

there would be some sort of decision made

1:13:50

to continue them,

1:13:53

or whatever, but they're still former GTMO detainees

1:13:55

in the country, so the Department of State,

1:14:00

the department of defense, and the intel community

1:14:02

are still gonna have an interest in them,

1:14:04

but it's different in each country.

1:14:06

Interviewer

But if there's still somebody

1:14:08

at State and DoD, who is ultimately responsible

1:14:10

to make sure that these men are being surveilled,

1:14:13

if necessary?

1:14:16

-

It's just, it's not one per...

1:14:18

there's no special Envoy.

1:14:19

So, for instance, in state,

1:14:21

it'd be the regional assistant secretary.

1:14:25

And DoD will be the under secretary for policy.

1:14:27

And it's all these things, you have the Intel folks,

1:14:32

the policy folks, and the military involved.

1:14:37

So, you know, DoD has assets,

1:14:40

we have Intel assets,

1:14:42

but it would be the undersecretary for policy

1:14:44

who there is no nominee for right now,

1:14:47

so there's a career person who's filling that job.

1:14:49

And then there's still an office of detaining policy.

1:14:53

Interviewer

And that seemingly is paying attention

1:14:56

to the agreements that you made?

1:14:59

-

Yes. Yeah.

1:15:02

There's no political appointee, so there's a career person.

1:15:04

Interviewer

But that career person does exist?

1:15:08

-

Yes. Yes.

1:15:09

Interviewer

Were you involved at all?

1:15:13

Did you have any opinion?

1:15:14

Did people ever ask you for an opinion

1:15:15

as to whether President Obama had the authority

1:15:17

to just shut down Guantanamo on his own?

1:15:20

-

Yeah. We discussed,

1:15:23

you know, alternatives on individual basis,

1:15:25

but that was a White House decision.

1:15:29

You know, the lawyers would have been involved in that.

1:15:34

So, my job was to transfer as many people as possible.

1:15:37

A closure plan was sent to the Hill,

1:15:40

but it was always,

1:15:44

you know, there's a law saying

1:15:44

that GTMO detainees

1:15:48

could not be transferred to United States.

1:15:51

So, you know, that was the law.

1:15:53

You know, DoD follows the law.

1:15:55

You know, there's an underst...

1:15:58

There's a discussion as to what the president can do,

1:15:59

with his commander in chief authority,

1:16:02

as opposed to...

1:16:04

You know, but that was,

1:16:06

you know, the White House had that issue.

1:16:08

And that was that something you were?

1:16:09

-

Yeah. I was told.

1:16:12

Transfer as many people as you can,

1:16:12

under the statute.

1:16:14

Interviewer

Ultimately, you find it a rewarding job?

1:16:17

Were you glad you did it?

1:16:20

-

Yes. Absolutely.

There are 164 detainees when I started,

1:16:23

and there's 41,

1:16:28

so I feel we made...

1:16:30

I learned a lot.

1:16:32

I would do some things differently,

1:16:33

but I agree with the president that GTMO should be closed.

1:16:35

I do think that having worked for both parties on the Hill,

1:16:40

and the executive branch there,

1:16:45

everybody wants to protect the country,

1:16:46

it's just how you get there.

1:16:48

But everybody's operating in good faith.

1:16:51

I do think the United States has the legal authority

1:16:53

to detain people indefinitely with due process.

1:16:57

You know, if they have lawyers

1:17:01

and it's not illegal black hole,

1:17:03

that their status is reviewed.

1:17:07

But I think when you look at all the issues,

1:17:09

the cost, the international communities,

1:17:12

questions about GTMO,

1:17:16

the recruiting tool, and President Obama's statement

1:17:18

that we can do better as a country.

1:17:23

The costs of GTMO outweigh the benefits of GTMO.

1:17:25

You know, you can detain people at GTMO,

1:17:27

keep them off the battlefield.

1:17:29

But I personally think it's killing us

1:17:31

in the international community,

1:17:32

it's radicalizing people.

1:17:34

And most of the military,

1:17:36

you know, General Dempsey said, GTMO is hurting us.

1:17:38

General Petraeus said GTMO was hurting us.

1:17:41

You know, every secretary of state,

1:17:44

every Secretary of Defense,

1:17:45

all the retired admirals and generals,

1:17:48

that human rights first,

1:17:50

has General Hor, former commandant of the Marine Corps.

1:17:52

No, General Krulak.

1:17:58

General Hor,

1:17:59

you know, I think European commander,

1:18:00

but, you know, four-star Marines

1:18:02

saying GTMO should be closed.

1:18:04

It's not an E...

1:18:07

You know, it's not,

1:18:08

their arguments on both sides,

1:18:09

but most of the people in the Bush administration,

1:18:11

including the president,

1:18:14

came to the conclusion that it was hurting us

1:18:16

more than helping us.

1:18:18

President Obama made the same conclusion,

1:18:19

and I agree with him.

1:18:23

Interviewer

And did you agree with them firsthand?

1:18:24

Did you see that when you went overseas?

1:18:26

-

Yes. Yeah.

1:18:28

I watched a partial part of Cliff's interview with you

1:18:30

before I came over here,

1:18:34

and that was...

1:18:35

I wasn't present, but Cliff,

1:18:36

you know, right away said,

1:18:38

you know, there are key foreign leaders

1:18:40

telling us that the single most important thing we can do,

1:18:43

in counter-terrorism is closing GTMO.

1:18:46

So, no one...

1:18:49

I didn't hear that conversation,

1:18:50

but in, you know, many, many meetings,

1:18:52

they said, the leaders would say, please.

1:18:54

And that goes back to my time on the Hill,

1:18:58

we'd go abroad and we would say,

1:19:00

"Look, we understand what you're doing.

1:19:03

You're actually, you know,

1:19:04

doing a favor for the international community,

1:19:06

doing dirty work detaining people

1:19:07

that the international community would have to,

1:19:10

but it's killing you.

1:19:12

You know, we have a right to protect ourselves,

1:19:17

and detain the ones that can't be released responsibly,

1:19:19

who really are like,

1:19:23

"If I get out, I'm gonna blow up a building."

1:19:24

So, I don't think they should be released.

1:19:26

But if their home country wants them,

1:19:28

or another country wants them,

1:19:31

and we can keep an eye on them,

1:19:32

you know, we should do that.

1:19:36

it's just hurting us more than helping us.

1:19:39

Interviewer

If we did close Guantanamo,

1:19:43

what would we do with the people

1:19:44

in the military commissions?

1:19:46

Do we prosecute them in Article 3?

1:19:47

-

Yes.

1:19:49

Well, no, so that's a separate.

1:19:50

If GTMO ordered closed, you've got 41 detainees.

1:19:54

So, five of them

1:19:57

are eligible for transfer,

1:19:59

eventually, maybe you get them transferred.

1:20:01

The 26 that the inter-agency feels

1:20:04

are still significant threats,

1:20:09

you House them at a military base in the United States,

1:20:12

Charleston,

1:20:15

Colorado, but with transparency,

1:20:18

access to the courts,

1:20:22

you know, no torture.

1:20:23

It's, you know, it's not perfect,

1:20:26

but it's removing the issues that we can,

1:20:28

and acknowledging that these are the bad guys.

1:20:31

The military commissions,

1:20:34

you either you continue them GTMO,

1:20:35

or you bring them to the United States,

1:20:37

so bring them to Charleston

1:20:40

but that's not detaining,

1:20:41

that's prosecuting them as war criminals,

1:20:44

so that's a separate issue,

1:20:47

as you know, as a law professor.

1:20:48

But if you're gonna close GTMO,

1:20:52

you have to move them from GTMO to the United States.

1:20:53

General Martins thinks it's not the efficient way to do it,

1:20:55

that he would use...

1:20:59

He would lose a year or two,

1:21:00

you know, having to transfer all the files and everything,

1:21:02

but theoretically, you can do it.

1:21:05

That's the issue of continuing military commissions.

1:21:09

If you want to stop that process

1:21:13

and go to Article 3 courts,

1:21:16

you know, that would be a separate process.

1:21:19

We're just talking about moving them from GTMO.

1:21:22

You can prosecute them in the military commissions,

1:21:24

and move them from GTMO.

1:21:27

You know, military commissions,

1:21:31

they're awfully slow, but General Martins is a good man.

1:21:33

If we went back to Article 3 prosecutions

1:21:38

this late in the game,

1:21:40

you know, I'm concerned a judge would say, you know,

1:21:43

just due process, you know?

1:21:47

There might not be a statutory speedy trial,

1:21:49

but even if they were acquitted,

1:21:54

we would still have the right to hold them

1:21:56

to keep them off the battlefield,

1:21:59

again, that's an unsettled issue.

1:22:00

So, military commission,

1:22:03

the short answer is military commissions

1:22:04

could still continue if GTMO would be closed,

1:22:06

but that's a policy issue to be made.

1:22:08

And we're four months in the new administration,

1:22:11

and they have a draft executive order, but nothing.

1:22:14

I mean, he's focused on other things right now.

1:22:17

Interviewer

But as you know,

1:22:20

if these people are prosecuted and convicted,

1:22:21

in the military commissions on this whole challenge

1:22:23

to the commission, so that could go on forever?

1:22:25

-

Yup. Yes.

1:22:28

Interviewer

Did you?

1:22:31

Let's go into another issue,

1:22:32

but it's something that may...

1:22:33

I thought of since you're so knowledgeable

1:22:34

on all the DoD work.

1:22:37

Did you have any interactions with Jose Padilla at all?

1:22:38

-

No. That was-

1:22:42

-

Not before your time?

-

Adjudicated before I...

1:22:44

I monitored it when I was on the Hill,

1:22:46

because again, when the members

1:22:48

of the House Armed Services Committee were considering

1:22:51

the options of military commissions,

1:22:53

the alternative is Article 3 courts.

1:22:56

And so we did have,

1:22:58

you know, U.S citizens that were detained.

1:22:59

So, it was Padilla, Hamdi, and Omari.

1:23:01

Interviewer

Well, was there-

1:23:07

-

And none of them were from finally settled

1:23:08

by the Supreme court.

1:23:10

-

Right.

1:23:11

-

Yeah.

Interviewer

But I'd be curious since you had the insight

1:23:12

understanding of that, did people...

1:23:16

Where people concerned that American citizens

1:23:18

somehow should be treated differently,

1:23:21

or was it acceptable to most of the people

1:23:23

in DoD to keep them?

1:23:27

-

I didn't focus on it.

1:23:29

My focus was transferring.

1:23:30

But, you know, through Hamdi, there's your Americans.

1:23:31

And I think that the focus was on the drone strike,

1:23:36

in Milwaukee and the president's ability

1:23:40

to issue a drone strike against Americans.

1:23:43

Interviewer

Were you involved in that at all, or?

1:23:47

-

On the Hill, I was not involved in DoD.

1:23:49

On the Hill, yeah, we are briefed by DoD,

1:23:51

or we were briefed by General Counsel Johnson.

1:23:55

And, you know, that the memo was eventually disclosed

1:23:59

by DOJ, but it's my understanding,

1:24:03

that you can be an American citizen,

1:24:06

but, you know, lose your rights if you,

1:24:08

you know, proclaim hostilities against the United States,

1:24:10

but that was not really.

1:24:13

Our focus was on transferring the detainees at GTMO

1:24:15

that we could transfer responsibly.

1:24:18

Interviewer

So, you had no also involvement

1:24:21

since you were in DoJ with John Walker Lindh either?

1:24:24

-

No. No.

1:24:26

Interviewer

I guess, is there some that I didn't ask you

1:24:32

that you thought of before you came here

1:24:35

that you'd like to talk about,

1:24:37

just in terms of your experiences and your understanding

1:24:39

of your last dozen years, essentially with DoD?

1:24:42

-

Just what I've...

1:24:49

You know, I've done some writing,

1:24:49

I'm doing a little bit more writing.

1:24:50

But I think, you know,

1:24:51

closing GTMO protects the country,

1:24:54

it's hurting us.

1:24:57

You know, we have the right to detain people,

1:24:59

keep 'em off the battlefield,

1:25:01

but for all the reasons we've discussed,

1:25:02

in 2017, GTMO hurting us rather than helping us.

1:25:06

So, I'm encouraging the new administration

1:25:09

to at least consider transferring those five

1:25:13

that are still eligible.

1:25:16

And if you wanna protect the country,

1:25:17

you know, there are military folks,

1:25:19

including former commandants to the Marine Corps,

1:25:22

General Dempsey who are saying close GTMO.

1:25:24

It's gonna take a while with this administration.

1:25:29

I don't think they're predisposed to listen to it,

1:25:31

but I think on the merits,

1:25:33

GTMO should be closed.

1:25:36

And I'm gonna continue to tell people that,

1:25:38

I think we need to do that.

1:25:41

And I appreciate what you're doing, getting facts out.

1:25:43

I think maybe get up a fuller

1:25:46

viewing of the DoD perspective.

1:25:52

Some of the people I talked about,

1:25:54

'cause you know, America is about due process,

1:25:56

and we're doing this to protect ourselves.

1:25:59

But we also have do it as America and protect...

1:26:01

And keep our values.

1:26:05

And that's what I respect President Obama doing.

1:26:07

Interviewer

You know, listen to you,

1:26:10

I'm just thinking, if there was another 9/11 tomorrow,

1:26:11

what would happen?

1:26:15

-

Well, you know, our political,

1:26:17

yeah, we tend to pendulum swings.

1:26:18

And, you know, President Bush wanted to protect the country

1:26:22

from another attack, and so, did vice president Cheney.

1:26:26

So, I think he operated in good faith.

1:26:29

You've talked to a lot of the folks who were there,

1:26:31

John Bellinger,

1:26:33

you know, we would probably have to detain more people,

1:26:36

but not at GTMO.

1:26:39

With I think the lesson learned from GTMO,

1:26:42

is you do it with transparency.

1:26:45

They have access to judicial process

1:26:48

from the very beginning,

1:26:51

there is a review process from the very beginning.

1:26:54

It's not an island where the press can't get to,

1:26:58

so do it somewhere where the response...

1:27:01

The press can get to.

1:27:03

But, you know, we have a right to keep people

1:27:07

who wanna hurt us off the battlefield,

1:27:10

but do it in a different way than we did at GTMO.

1:27:12

Interviewer

Would it be appropriate and correct

1:27:17

to have them as POW's and next time this happens?

1:27:21

My recommendation would be,

1:27:24

you know, give them POW rights.

1:27:25

I understand the president's thinking,

1:27:28

President Bush is thinking that,

1:27:30

you know, they're not playing fairly,

1:27:31

they're killing civilians,

1:27:33

they're not part of the Geneva process.

1:27:34

So, why give them the acknowledgement?

1:27:37

But the legal issues that created,

1:27:40

you know, the thousands

1:27:43

and thousands of hours of litigation.

1:27:45

And there is a perception maybe unfairly,

1:27:49

but a perception by some that we were treating them

1:27:51

with less rights than we could have.

1:27:56

I don't think that's necessarily true,

1:28:02

Article 3 applies regardless.

1:28:03

But I think the world would view it

1:28:05

as a good faith acknowledgement by the U.S.

1:28:08

A lot less work for lawyers,

1:28:12

we'd find something else to do.

1:28:14

But I don't, you know...

1:28:17

There was a reason why Bush did what he did.

1:28:20

I think maybe he would do it differently now,

1:28:23

but I don't...

1:28:26

But it was not done out of malice,

1:28:27

it was done out of,

1:28:29

"Hey, these people killed civilians,

1:28:30

which is not the way you do it."

1:28:32

So, they're not gonna get their rights.

1:28:35

But yeah, in retrospect,

1:28:36

it takes an issue off the table as the lawyer, so.

1:28:39

Interviewer

Well, you gave an amazing

1:28:43

broad scope, brush on how it looks in the last decade,

1:28:45

or even longer,

1:28:49

and really valuable, I really appreciate it.

1:28:50

I hope you are advocating

1:28:57

with the new administration to (mumbles)?

1:28:58

I hope they're calling you up and asking for your opinion.

1:29:01

-

Well, I'm doing a lot of writing now,

1:29:04

let's put it that way.

1:29:05

Interviewer

Well, let's hope it gets out there

1:29:06

-

Yeah.

1:29:07

Interviewer

If there's nothing else,

1:29:09

Johnny needs 20 seconds of room tone before we shut down.

1:29:10

-

Sure, great, my pleasure.

1:29:13

Thank you very much.

1:29:14

And I appreciate all the good work you're doing.

1:29:15

-

Thank you very much.

1:29:18

-

Thank you.

Johnny

Okay. So, can we just sit quietly for 20 seconds,

1:29:19

we get the room tone.

1:29:22

Okay.

1:29:38

Paul

Thank you.

Lewis, Paul - Interview master file

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