Chemerinsky, Erwin - Interview master file / Witness to Guantanamo / Duke Digital Repository

Interviewer

Ready? Okay, okay.

0:06

Good afternoon.

0:08

And we are very grateful to you for participating

0:09

in our Witness to Guantanamo project.

0:11

We invite you to speak about your experiences

0:14

regarding Guantanamo Bay, Cuba.

0:17

We are hoping to provide you with an opportunity

0:20

to tell your story in your own words.

0:22

We are creating an archive of stories

0:26

so that people in America and around the world

0:28

will have a better understanding

0:30

of what you and others have seen and experienced

0:32

over the past 8 1/2 years regarding Guantanamo.

0:35

Future generations must know what happened,

0:39

and by telling your story, you are contributing to history.

0:42

We appreciate your courage and willingness to speak with us.

0:45

If at any time during the interview,

0:48

you would like to take a break, please let us know.

0:50

And if you say something you did not mean to say

0:53

and would like to remove it, please tell us,

0:56

and we'll remove it.

0:58

So I'd like to just begin with some general information

1:00

about you, your name and a little background,

1:02

Erwin, just so that we have it.

1:08

-

Sure. My name is Erwin Chemerinsky.

1:10

I'm dean and professor of law

1:13

at the University of California Irvine School of Law.

1:15

Before that, I was a professor of law at Duke University,

1:18

before that, a professor of law

1:21

at the University of Southern California

1:23

and what's relevant is I began representing

1:25

a Guantanamo detainee at USC,

1:26

continued to just as I was on the faculty at Duke

1:29

and continue to do so since I've come

1:32

to the University of California, Irvine.

1:33

Interviewer

I think it's also relevant

1:35

if you can tell us a little bit about your history,

1:36

going back in terms of your civil liberties,

1:39

civil rights experiences.

1:41

Just generally, just a few things.

1:43

-

Sure. I'd been a law professor for 30 years.

1:45

I did public interest law after law school before that.

1:50

Since becoming a law professor,

1:53

I've been involved in handling appellate cases.

1:56

All are civil liberties, civil rights cases.

1:59

I've done virtually all of them pro bono.

2:01

I've argued over 100 appeals in various courts of appeals

2:04

including several cases in the United States Supreme Court.

2:08

Interviewer

And can you give us just a little background

2:13

on your schooling too?

2:17

Do you want to go there?

2:18

-

Sure.

I went to Northwestern University

2:19

and then I went to Harvard law school.

2:22

Interviewer

So we'd like to begin

2:24

with your first involvement with Guantanamo.

2:26

And if you could explain what motivated you,

2:29

what caused you to get involved?

2:32

-

The first reports of the Guantanamo detainees

2:34

being brought there

2:37

were over Martin Luther King Day weekend in 2002.

2:39

I received a phone call from a civil rights lawyer

2:43

in Los Angeles, Stephen Yagman.

2:45

He was very upset at the reports he was hearing

2:48

of individuals being brought bound, gagged and drugged

2:50

on military planes,

2:55

being put in 8 foot by 8 foot cages in Guantanamo.

2:56

He said somebody should file a lawsuit on their behalf

3:00

because what's being done violates international law

3:03

and the United States Constitution.

3:06

I had worked with Mr. Yagman on many cases before

3:08

and so was quite willing to work with him again.

3:12

I did some research over that weekend

3:16

that it is permissible to file a habeas corpus petition

3:19

on behalf of another.

3:22

It's even possible to do so

3:23

without that individual's consent.

3:25

I did the research in terms of the likelihood of success

3:27

in terms of such a challenge

3:31

and also research in terms of

3:32

where does such a lawsuit have to be brought.

3:34

And Mr. Yagman drafted a complaint on behalf of

3:36

a coalition of clergy members, journalists, and professors

3:40

and he filed it on an emergency basis

3:44

in federal district court in Los Angeles

3:46

on the Monday of Martin Luther King Day weekend.

3:48

Interviewer

And what motivated you

3:50

to get involved with him in that?

3:51

-

I shared Mr. Yagman's concern

3:54

that the United States was violating international law,

3:56

to say nothing of American law.

4:00

And I was very concerned

4:02

there was no one there to represent the detainees.

4:03

It seemed highly unlikely that they would have

4:05

family members wherever they were coming from

4:08

with the means or the knowledge

4:11

to represent them at this stage.

4:13

No other lawyers were involved.

4:16

This was long before the law firms got involved

4:17

in representing detainees

4:19

and there was really a sense of, it was us or no one

4:21

to protect them and to enforce the law.

4:24

Interviewer

Could you tell us a little bit

4:27

about what happened after you filed the lawsuit?

4:28

-

The lawsuit was filed

4:31

on the Monday of Martin Luther King day weekend.

4:33

My name was on it as co-counsel.

4:36

By coincidence I was flying from Los Angeles, where I lived,

4:39

to New York, where I was giving a speech

4:43

the next day, Tuesday.

4:45

And when I landed after midnight in New York,

4:46

I turned on my cell phone

4:49

and the message box was completely full.

4:51

It was entirely messages from journalists at that stage,

4:54

all of whom wanted to interview me.

4:58

I had invitations to appear

5:00

on all of the morning talk shows the next day.

5:02

Now I think the logistics

5:05

of my speaking commitment made it impossible.

5:06

I also made the choice

5:09

that the complaint should speak for itself,

5:11

that I didn't want to be seen

5:13

that I was doing this to get publicity.

5:14

One of the mistakes, in hindsight,

5:17

was not accepting those media invitations

5:19

because I think what I missed was the opportunity

5:22

to say to whoever was listening

5:24

that the United States wasn't following international law,

5:27

wasn't following our own constitutional principles.

5:30

The reality is a complaint is read by relatively few people.

5:32

I was given a national platform. I didn't use it.

5:36

And no one was expressing that view at that time.

5:40

The other thing that happened was

5:43

when I woke up the next morning,

5:45

I turned on my computer and I had well over 200 emails.

5:46

They were the most nasty and vicious emails

5:52

I think I had received to that point.

5:55

Many wished me and my family dead.

5:57

This was January of 2002.

6:01

It was just several months after September 11th.

6:03

And I discovered that people were not at all sympathetic

6:05

to representing Guantanamo detainees

6:09

or asserting their rights.

6:11

I found that even people who I knew, who were friends,

6:13

were enormously critical in me being involved in this case.

6:16

-

How did you respond to those emails and to your friends?

6:19

-

I took the position then,

6:24

and I've continued to follow it since,

6:26

that any email that's nasty, I delete,

6:28

that I don't respond, I don't engage.

6:31

Any that's a reasoned argument,

6:34

I'll respond by thanking them for writing

6:36

but I generally won't engage.

6:38

And for friends, I will engage

6:40

and had some very heated discussions with people.

6:42

Later that week, I was in New York to do a lecture

6:44

and had dinner with some friends

6:48

and it turned into very heated discussion

6:49

of their not understanding how I could represent

6:51

the Guantanamo detainees

6:52

and my not understanding how they couldn't believe

6:54

that these people deserve representation.

6:56

Interviewer

Did people call you unpatriotic?

6:58

-

And much worse too.

7:00

There were plenty who called me unpatriotic.

7:01

Literally, and I'm not exaggerating the least,

7:04

the ones that said "I hope you and your family die

7:06

in a bin Laden bombing."

7:08

There were enough phone calls that day that

7:11

one of the assistants at school called campus security

7:14

feeling threatened by the phone calls that came

7:19

and the campus security came in and investigated me.

7:21

And my response was, "But I didn't do anything wrong here."

7:23

Interviewer

How'd your family handle?

7:26

Did they get any comments or...

7:28

-

At the beginning I was forwarding

7:31

some of the more outlandish messages to my wife

7:33

just to sort of share what I was receiving.

7:36

Then she said she just didn't want to see them.

7:39

And after that, we just didn't talk about it.

7:41

I think that I mentioned in passing

7:44

to a Daily Journal reporter

7:47

the nature of the email I received

7:49

and he said, "Send them to me."

7:51

And I forwarded him a sample.

7:52

And then I think he wrote a column

7:54

in the Daily Journal that quoted and summarized these.

7:56

So there's still some record of them.

8:00

But to say they were vicious and nasty

8:01

is a tremendous understatement.

8:04

To say they bothered me, they really didn't.

8:05

I mean, I didn't feel personally threatened.

8:07

I didn't think that anybody was going to come after me.

8:09

I just hadn't realized the nerve

8:12

that this touched for people

8:14

and their sense that the individuals of Guantanamo

8:16

shouldn't have representation.

8:19

I mean, it's interesting.

8:21

Oh, go ahead.

8:22

-

Sorry.

We talk now in February, March 2010,

8:24

which is eight years later.

8:27

And it's so interesting that just last week,

8:30

there's sharp criticism from some of the lawyers

8:32

who were representing Guantanamo detainees

8:35

so one would think after eight years that it passed

8:37

but it hasn't completely, so.

8:40

Interviewer

Did the FBI ever contact you

8:43

after your name came out or (indistinct).

8:45

-

The only time the FBI contact me

8:47

was when I applied for my security clearance

8:48

in connection with representing a detainee

8:50

and wanting to go to Guantanamo.

8:52

Interviewer

And subsequently, what happened?

8:54

I don't want the particulars of the lawsuit,

8:58

but what happened then in terms

9:00

of your involvement with Guantanamo,

9:01

how did you end up getting involved with detainees?

9:03

-

I argued the case in federal district court

9:09

in Los Angeles in February.

9:12

Paul Clement, the then deputy solicitor general,

9:15

flew out from Washington to argue the other side

9:18

which showed how seriously the government was taking this.

9:20

The judge dismissed the case and then I argued it

9:22

in the United States Court of Appeals

9:25

for the Ninth Circuit in July.

9:26

Paul Clement, again, flew out to argue

9:29

for the United States.

9:31

The Los Angeles Times wrote a story about the argument

9:33

and the brother of a detainee, Salem Ghareby's brother,

9:37

Baleid Ghareby, contacted Mr. Yagman and said,

9:42

"I have a brother in Guantanamo.

9:46

Would you represent him?"

9:49

Since ultimately both the federal district court

9:51

and the Ninth Circuit dismissed on grounds

9:53

that we didn't have standing, that we didn't have

9:56

a sufficient relationship with the detainee,

9:58

this then ended that issue and allowed us to go forward

10:00

on behalf of a particular individual.

10:03

So we asked the court whether we could simply

10:05

amend our complaint,

10:09

that instead of representing all the detainees

10:10

we'd represent this one detainee

10:12

but that the complaint would be the same.

10:14

The judge said yes, we could do that.

10:16

And they dismissed the complaint nonetheless.

10:18

And then we went to the Ninth Circuit

10:20

and we won in December 2003.

10:22

Interviewer

What did you win?

10:23

-

The Ninth Circuit ruled that we could go forward

10:25

with a lawsuit on behalf of a Guantanamo detainee,

10:28

that we could file a habeas corpus petition

10:30

on behalf of Salem Ghareby.

10:33

This is the same conclusion that

10:35

the United States Supreme Court came to

10:37

in June of 2004 in Rasul v. Bush,

10:39

though I can say in all honesty

10:42

that I was part of winning the first case

10:45

on behalf of a Guantanamo detainee in any court.

10:48

Interviewer

Were you ever working

10:51

with the attorneys in the East Coast

10:53

on any of these cases, or you were pretty much a loner

10:55

in all of this?

10:58

-

We started before any of the lawyers on the East Coast

11:00

were representing detainees.

11:04

Though by the time the case even got to the Ninth Circuit,

11:06

the first of the family members had contacted lawyers

11:09

and had presentation.

11:13

And certainly after a while,

11:14

there were many law firms involved

11:16

in representing detainees.

11:18

There is a listserv among Guantanamo lawyers,

11:19

and I certainly benefited from that listserv,

11:22

at times when the case was very involved

11:27

and there were certain lawyers

11:29

who I was in closer communication with

11:31

and benefited from their counsel and wisdom.

11:33

Interviewer

And when did you finally get to go?

11:36

Did you apply to go to Guantanamo soon after that,

11:39

or when did you first apply?

11:41

-

I applied for security clearance

11:43

in the fall of 2004,

11:48

which is after the Supreme Court said

11:51

that the Guantanamo detainees could go forward

11:53

with habeas corpus petitions.

11:56

As is the nature of these things,

11:58

it took some time for them to process me and gain approval.

12:00

All I remember is it took a while,

12:05

and then it took a while to get the schedule,

12:07

to go down to see my client for the first time.

12:10

There were many instances of false starts,

12:14

of scheduling it and they would cancel.

12:16

Scheduling it, they would cancel.

12:21

Interviewer

Who's "they"?

12:23

They being the representatives

12:23

of the Department of Defense, who I was dealing with.

12:25

Interviewer

You had to schedule with them?

12:28

-

That's correct.

12:29

Interviewer

And were you not permitted to apply

12:31

soon as you had won that case in November of '03?

12:33

-

Well, when we won our case in December of '03,

12:37

that case, the government then sought cert on,

12:41

a Supreme Court review on,

12:43

and that case was held pending the Supreme Court's

12:45

deciding the two cases from the DC Circuit,

12:48

Rasul and al Odah.

12:51

So I don't think anybody was cleared for security clearances

12:52

until the Supreme Court had decided Rasul in June 2004.

12:56

And I immediately applied for security clearance then,

12:59

and after the Rasul case came down,

13:02

our case also went to the district court.

13:07

We were assigned to Reggie Walton.

13:09

Our case was filed in Los Angeles.

13:13

One of the things that the Supreme Court decided

13:15

in June of 2004

13:17

was that habeas petitions needed to be brought

13:19

in the district where somebody was held,

13:21

or if someone's held outside the country,

13:23

in the district where the custodian was located.

13:25

So our case got transferred to Washington, DC

13:27

in the federal district court there.

13:31

Interviewer

You described some of the problems

13:34

that DOD threw in front of you.

13:36

You said you couldn't get your permission so easily.

13:39

-

Obviously the largest was just waiting

13:45

for the security clearance.

13:46

It did come, but it took many months.

13:48

In terms of coordinating visits,

13:52

I remember having to coordinate with somebody from the DOD

13:54

and also I think Terry Warden was his name,

13:56

of the Department of Justice.

13:58

And they only would allow so many at a time

14:00

and it was dependent on their windows being available

14:03

and the like, and there were a couple of instances

14:07

we would schedule and it would get canceled.

14:10

And there were certainly instances where I would schedule

14:12

and then something would come up for me.

14:14

So it took a while to arrange to be able to get down

14:16

to see Mr. Ghareby.

14:18

Interviewer

Had you been in touch

14:19

with Mr. Ghareby at all?

14:20

-

Well, I had sent him letters to inform him

14:22

that we were representing him

14:24

and I was in touch through Mr. Yagman

14:25

with Mr. Ghareby's brother, Baleid.

14:28

Interviewer

Do you know if Mr. Ghareby

14:30

received your letters?

14:31

-

I don't recall.

14:32

Interviewer

Could you describe

14:34

the first time you flew down to Guantanamo

14:36

and what that was like?

14:38

-

Surreal.

14:41

It's a beautiful island with beaches,

14:42

but with very bleak prisons there.

14:48

I remember saying to people

14:51

that if the United States that built luxury hotels

14:53

rather than the garrisons that they did there

14:56

they could have gone a long way to solving the deficit.

15:00

Interviewer

And what kind of plane did you take

15:03

and how was the experience when you first got off the plane?

15:06

-

I think it's Sunset Airlines, Sunrise Airlines?

15:11

But it was whatever the airline is that you take.

15:16

And if I remember right,

15:18

you fly to Fort Lauderdale and then change planes.

15:19

And I was surprised,

15:22

'cause I think of Cuba as being so close

15:24

to the United States, that it's about a two hour flight

15:26

from Florida to go down there.

15:28

And one thing that was so interesting is

15:32

how the military escorts are very young.

15:36

Every place there's military escorts.

15:42

And they seemed like kids to me, very officious.

15:45

I mean, everything is very, very regimented

15:53

and the lawyers all stay in a different place than,

15:58

for example, journalists get to stay.

16:02

Interviewer

Could you describe exactly how that was

16:04

when you got off the plane,

16:07

and were you nervous or tense at all?

16:08

And who met you when you got off the plane and (indistinct)

16:10

-

I don't recall being nervous at all.

16:16

I didn't feel that I was in any danger going there,

16:18

given the military presence.

16:21

The last thing I would feel was any danger.

16:23

I remember having to, before going there,

16:26

have a huge amount of paperwork in order.

16:30

And my main degree of tension was that I screw up

16:32

and not bringing some of the papers

16:36

that I was supposed to bring.

16:37

There were other lawyers there

16:40

at the same time that I was.

16:43

And...

16:45

Interviewer

And then they escort you somewhere

16:47

when you got off the plane?

16:48

-

They escorted, and I remember going to the,

16:51

they took us to a barracks where we were staying.

16:53

And I remember that you can't have a cell phone there

16:57

but you can buy calling cards

17:01

and using the calling cards to call home.

17:03

Interviewer

And how was it the next morning

17:05

when you went to visit your client?

17:07

Could you describe that?

17:08

-

I remember having to go over water.

17:10

I remember you took a boat

17:12

and then to get from where the lawyers stay

17:13

to where the detainees are,

17:15

that you go over water.

17:17

I remember that the military personnel were very officious.

17:20

I remember that the other lawyers,

17:25

at least some of them who were there,

17:27

only a few had been before

17:28

and so had more of a chatting relationship

17:30

with the military officers.

17:32

And we had a translator with us

17:36

and I remember being taken to the place

17:40

where we were able to talk to Mr. Ghareby.

17:46

And most of all, what I was struck by

17:49

was the chance to see him.

17:51

As you can tell, I don't remember

17:53

that many of the details of the island.

17:54

I was there and I remember how beautiful it was

17:56

and how bleak the garrisons

17:58

but it was really striking where we talked to Mr. Ghareby.

18:00

It was a dirt floor.

18:04

He was shackled and chained to his chair.

18:08

There was a small table not unlike the table next to me.

18:14

I was there. The interpreter was there.

18:19

And it was very powerful to see him as a person.

18:24

One of the things that I've tried to do

18:30

as I've talked about Guantanamo

18:31

is to describe as a person

18:34

'cause I think it's one thing

18:35

if it's just the number of people that are there

18:36

or if they get characterized in some way

18:39

as terrorists or more accurately, alleged terrorists.

18:41

But it's another thing to describe them as a human being.

18:45

He's a man of about my height, about 5'7".

18:47

He's slimmer in build than I am.

18:52

He has a long beard graying towards the end.

18:55

He would often play with his beard as he was talking.

18:59

He seemed very articulate and eloquent.

19:06

Of course, we were hearing through a translator.

19:09

Very soft spoken.

19:12

His fingers were deformed.

19:14

Some of his fingers were fused together and

19:17

the temptation, since it's unusual, was wanting to look

19:24

and try to figure out what had happened.

19:28

And he didn't have nails on some of his fingers

19:29

and the like.

19:31

He seemed very forthcoming as we spoke.

19:33

He was very concerned about his family.

19:36

He's married. He has three children.

19:39

He'd never seen his youngest child.

19:41

His youngest child was born

19:43

after he was apprehended in Afghanistan.

19:45

And a lot of the conversation with him

19:47

was just trying to get his story.

19:48

Interviewer

How were you feeling listening to his story?

19:52

Was it what you expected

19:56

or did you not expect anything when you walked in there?

19:58

Was it very moving?

20:03

-

It was very moving in the sense that

20:05

no matter how much I knew he was a human being,

20:10

sitting across from him

20:15

no further than I'm sitting away from you

20:17

made him real as a human being.

20:19

I became involved because I cared about the cause

20:23

and I was representing people,

20:27

but now here was the real human being and he was in prison.

20:29

And he had been there at that point for several years,

20:33

and now has been there many more years since.

20:37

Interviewer

Did you think

20:40

you could help him at that time?

20:41

-

To me, one of the most discouraging things

20:48

in representing him has been the pace of the litigation.

20:51

None of the courts has felt any need to expedite this.

20:56

Here's a man who's been in custody since July 2002.

21:01

We sit in March of 2010.

21:06

He's still never really had a meaningful hearing.

21:08

He's had no trial.

21:10

And nobody seems to care about the pace of the litigation.

21:12

The DC circuit,

21:16

from the time the Supreme Court decided in 2004,

21:18

doesn't end up deciding its case involving the detainees

21:21

for a few more years.

21:25

And so what was discouraging to me then,

21:26

is discouraging now is just, nobody seems to care

21:29

that these are human beings who every day are in prison.

21:34

Interview

Did you see other detainees

21:38

while you were there?

21:39

-

No. It was very carefully orchestrated.

21:41

So we were taken by military personnel

21:45

to the place where he was to be questioned.

21:47

We questioned him til lunch.

21:50

He was then taken away. Questioned him again.

21:52

I know that we were interrupted 'cause he was very devout

21:54

and he wanted his time to pray

21:58

at the intervals where there was prayer.

22:00

And we'd left him alone during that time.

22:03

Interviewer

When you say "we,"

22:04

was there someone else with you?

22:05

-

There was.

22:07

There was a lawyer

22:08

from the Center for Constitutional Rights with me.

22:09

Interviewer

Who also asked him questions?

22:11

-

Yes.

22:13

Interviewer

How did you find a translator?

22:14

-

Through her.

22:16

Interviewer

And did your client believe in you?

22:18

Did he think you were going to help him?

22:21

-

I don't know.

22:23

Interviewer

Did he ask anything of you

22:26

in terms of his family?

22:27

-

He wanted us to get in touch with his family.

22:29

He wanted to know what we had heard from his brother.

22:31

He knew that it was through his brother

22:34

that we were representing him.

22:36

He wanted to know what we'd heard from his wife.

22:38

He was receiving letters from her.

22:40

He wanted to us to try to get word back to her and the like.

22:43

Interviewer

How did the military treat you

22:47

during that time?

22:49

Did they try to block any of the questions?

22:50

-

No.

22:53

I don't remember if they were in the room, even.

22:55

They probably were. I don't remember.

22:58

But no way did they interfere.

22:59

The interesting thing was,

23:01

and this was my experience all the time.

23:03

I tried to take very detailed notes

23:05

because I didn't want to forget anything.

23:08

And there were certain things that he was asking us to do

23:09

and I wanted to be sure to try to do those things

23:12

that he was asking us to do.

23:14

And so I was taking notes

23:16

and you have to have your notes cleared.

23:18

And-

23:21

Interviewer

Can you explain that?

23:22

-

Sure. They take your notes away from you.

23:23

And after they, I'm sorry.

23:25

Interviewer

At what point?

23:27

-

At the end of each day.

23:28

They take the notes away

23:30

and you have to put them in an envelope

23:32

and you give them to them.

23:34

And then if they read them and it's all okay,

23:35

you can have your notes back.

23:38

My problem is they couldn't read my handwriting.

23:40

And so I would have to go to the secured facility

23:43

and dictate so that they could clear my notes

23:47

because of the handwriting problems.

23:52

Interviewer

Could you describe

23:54

what the secured facility is for?

23:54

-

It's a kind of place that's almost surreal.

23:58

Interviewer

Is it in Guantanamo?

24:01

-

No, the secured facility's in Washington, DC and-

24:02

Interviewer

So you mean your notes

24:05

were taken from Guantanamo-

24:06

-

From Guantanamo to Washington.

24:07

And then you have to go.

24:09

And the secured facility is just that.

24:11

It's a secured facility

24:15

and you can't take things out, you can't bring things in.

24:16

Interviewer

And who reads your notes there?

24:20

-

Military officials.

24:24

My notes had nothing in any way controversial

24:27

but they couldn't read my handwriting

24:30

so instead of getting them sent back,

24:32

I would have to go to the secured facility

24:34

to take care of it.

24:36

Interviewer

And they didn't redact anything you wrote?

24:37

-

I didn't have anything at all.

24:39

And I knew when I was taking the notes

24:41

there was nothing in there that was at all controversial.

24:42

That it to say, more than anything else,

24:45

I was there to get his story in his words

24:48

through a translator.

24:53

Also, he was very concerned

24:55

about some things that he wanted to us to do.

24:57

Some things that to him were most important.

25:00

And so I didn't expect that.

25:03

That was a big part of what it turned out

25:06

that the time spent with him was about.

25:09

Interviewer

Do you think the military

25:12

was listening in on your conversation?

25:14

-

I don't remember.

25:16

I have to admit I accepted whatever was

25:18

the conditions of the questioning.

25:21

I don't think so.

25:24

I think they stood outside of the room

25:26

during all of the questioning.

25:28

Interviewer

Was it filmed, the interview?

25:30

-

No.

25:33

Interviewer

Could you describe what happened

25:38

after you left the room?

25:40

Did you just return back to...

25:41

-

I remember we were searched again.

25:43

Then I remember going to the area where,

25:48

on that side of the island, where there was a base

25:52

and I remember there being a McDonald's there

25:55

and how strange it was to have gone from talking to this man

25:58

in a corrugated metal hut with dirt floors,

26:04

where he was shackled and chained,

26:09

to the banality of eating at McDonald's.

26:11

And then we were taken again on the boat across the island.

26:14

Interviewer

Who left the room first,

26:18

you or the lawyers or the client?

26:19

-

I think we did, if I remember right.

26:23

I know we also left during times,

26:25

it was for him to pray and he had a prayer rug there.

26:27

Interviewer

Could he talk to you,

26:31

you don't have to reveal anything

26:32

but he could talk to you about his conditions?

26:33

-

Yes.

26:36

And we did ask him about his conditions.

26:37

Interviewer

And his treatment?

26:39

-

We did ask him about his treatment.

26:40

Interviewer

And none of that was censored

26:42

in any of the notes you took?

26:43

-

No.

26:47

And in fairness, you know, it's the teacher in me,

26:48

I don't remember to what extent in my notes

26:52

I wrote of those things.

26:55

I was much more focused on his story

26:58

and again, the things that he wanted us to do for him.

27:03

Interviewer

What did he want you to do?

27:06

-

This is the first place where I think

27:08

it's attorney-client privilege,

27:09

that I don't think I should go there.

27:10

'Cause the things that he asked me

27:13

would still be relevant today.

27:15

Interviewer

And why were you so interested in his story?

27:18

Was it for the case or just-

27:20

-

For the case.

27:22

I was there as his lawyer

27:25

and this was my chance to understand,

27:27

how did he come to be in Guantanamo?

27:32

And I wanted to know everything he wanted to tell me

27:34

about, how did he come to be in Guantanamo?

27:36

Interviewer

Did you learn something more

27:38

about the whole essence of Guantanamo

27:40

after this first interview?

27:43

Is there something there?

27:45

-

I think I can say without revealing anything classified

27:48

or anything attorney-client privilege,

27:52

'cause I'm gonna just tell you my impressions,

27:54

not what he said, is my impression was...

27:56

Let me try this in my words.

28:02

I had no idea why he was there,

28:03

that it may be that I wasn't hearing the whole story

28:06

from him or I was hearing lies from him.

28:10

It may be that he was being sincere and truthful

28:12

but I really came away

28:16

without any sense of why he was there.

28:18

Without giving away attorney-client privilege,

28:20

I wanted his story from the time he grew up.

28:25

And I wanted to know

28:27

up to the moment where he got apprehended.

28:30

How did he come to be where he was apprehended?

28:32

And I wanted his sense of why he got apprehended.

28:35

And I came away with no sense of why he was in Guantanamo.

28:39

I walked away thinking

28:44

this could be a very dangerous man

28:46

or this could be a man who was just

28:49

entirely there by mistake.

28:50

Interviewer

Did that surprise you?

28:53

Were you expecting that kind of response in yourself?

28:53

-

I'm not sure what I was expecting.

28:58

I certainly didn't expect that

29:00

if he was a dangerous terrorist

29:01

he was going to tell me he was a dangerous terrorist.

29:03

On the other hand, nor did I expect

29:06

the sense of bewilderment of why he was there

29:09

that I perceived.

29:13

Interviewer

So did you go back a second time?

29:18

-

I did.

29:21

And I think you and I were there once at the same time.

29:22

Interviewer

Right.

29:25

-

And my sense of dates is so messed up.

29:26

Interviewer

That was May 2007.

29:28

-

That was the second time I was there.

29:30

Interviewer

Before we go to the second time,

29:33

on the first time, did you spend more than one day with him?

29:35

-

I was there two days.

29:38

I was there two days each time.

29:39

Interviewer

Could you have spent longer than two days

29:40

or was that the DOD limit?

29:42

-

I think that was my,

29:45

in each instance it's being put in with the rest of my life

29:47

and what amount of time seemed...

29:50

I think I had the time I needed to get the information

29:53

that I realistically could get from him.

29:57

Interviewer

And I have some other questions

30:00

about overall, but let's talk about the second visit.

30:02

Was that any different, did you see a difference

30:05

in the way they government responded to your presence

30:07

as well as...

30:10

-

No.

30:13

They blur together to a great extent in my mind

30:14

which is why it's hard to know

30:17

which is the first, which second.

30:18

The only main difference was that the second time,

30:20

his impatience, he was more (indistinct)

30:25

He was more interested in what was happening,

30:30

what were we doing for him.

30:32

But again, in both instances, very concerned about,

30:33

were we in touch with his brother,

30:36

what we'd heard from his wife and the like.

30:37

Interviewer

Were you able to reveal anything

30:40

about his family to him?

30:42

There was no restrictions?

30:43

-

We had a letter from his brother.

30:46

I had a letter from his brother to deliver

30:50

that they would not let me deliver.

30:52

That's the only restriction that I remember,

30:55

when I went the time that you were there, right.

30:57

I had a letter from his brother that I couldn't deliver.

31:00

Interviewer

Were you moved?

31:02

-

Yeah. Same thing.

31:03

Right.

31:07

And I knew the second 'cause of the...

31:08

Right, I've been through it before.

31:12

Interviewer

I had heard stories

31:14

that sometimes some of the detainees were told

31:16

that their lawyers were Jewish

31:18

and they shouldn't trust them.

31:20

Have you heard any of those stories

31:22

or did that happened to you?

31:23

-

I had heard those stories.

31:25

And in fact, I think some of those stories

31:26

were circulating right before I went May of 2007,

31:28

right before one of the times that I went.

31:32

And I was sensitive 'cause I am Jewish,

31:35

but I did not find that there was any reticence on his part

31:40

of talking with me.

31:45

I do know that other lawyers became involved

31:46

in this case later

31:49

and he did not want to meet with them

31:50

in some of their later visits.

31:52

And didn't meet with them in some later visits.

31:54

But I can't say whether that's based on religion at all.

31:55

Interviewer

Did he trust you as a lawyer

31:58

from the beginning?

32:00

Did he believe you were his lawyer

32:01

and that you weren't a government official?

32:03

-

I would have no way to know that.

32:06

The only thing I can tell you is

32:07

that he was willing to talk.

32:08

He was willing to meet with me, but to begin with,

32:11

it's so hard when you're dealing with a translator.

32:15

It's not the same as a conversation

32:19

because you have the long pause as well,

32:21

waiting for the translator to translate his words

32:23

and the long pauses

32:26

while waiting for the translator to translate my words.

32:27

And so it makes an unusual conversation to begin with.

32:29

So many of the cues you can pick up,

32:34

either for language or cultural reasons,

32:37

you can't interpret.

32:39

And it's just such a different situation

32:41

when you're talking with somebody

32:43

where that person's sitting with shackles on

32:44

and you're sitting across from them

32:46

and the military presence is outside the door.

32:49

So I have no way to assess the extent to which

32:51

he really believed I was his lawyer.

32:53

Interviewer

Was it the same place

32:55

that you interviewed him the second time

32:56

with the same dirt floor?

32:58

-

Yeah.

33:00

I mean, I can't tell you it's the exact same conditions.

33:01

Interviewer

Did he look any different?

33:06

Did he look...

33:08

-

More gray.

33:09

-

More gray.

-

More gray.

33:11

-

He had aged.

-

He had aged.

33:12

And it wasn't that long between the visits,

33:13

you know, a year between those visits.

33:15

Interviewer

Was his attitude any different to you?

33:17

-

Maybe a bit more aggressive

33:25

about what was going on and why it was going on.

33:27

Interviewer

Were you able to communicate

33:32

with the translator to pick up

33:33

some of those cultural norms

33:35

that you couldn't identify yourself?

33:38

-

The translators were wonderful

33:40

and I just admire them tremendously,

33:43

but no, I don't think that there was any ability

33:46

for the translator to be able to pick up.

33:50

At least I wasn't there long enough

33:52

or with the translators long enough

33:55

to be able to pick up those kinds of cues.

33:57

Interviewer

And it's the same translator both times?

34:01

-

No, it was different translators.

34:03

Interviewer

Did it make a difference, do you think?

34:04

-

No. They're both terrific.

34:06

Interviewer

Did you ever go to,

34:20

none of the meetings you were told

34:23

that he didn't want to meet with you

34:24

or there were some other delay or anything?

34:26

-

No.

34:30

Interviewer

Not in your experience?

34:31

-

During the time that I was there

34:32

I was always able to meet with him.

34:34

I was never told he didn't want to meet with me.

34:36

There was never any problem in that regard.

34:40

Interviewer

And after the second time,

34:42

what caused you not to go back since then?

34:45

-

Well, there was a long delay then

34:48

in what was going on in terms of the legal case,

34:51

because everyone was waiting for what was going to happen

34:53

with the Detainee Treatment Act

34:56

and the Military Commission Act.

34:57

And then some other lawyers became involved,

34:58

lawyers from the Center for Constitutional Rights,

35:03

a lawyer from American University law school,

35:05

and they then went to visit him.

35:07

Interviewer

And why would the statute, the legislation

35:09

and the cases be impeding visits?

35:13

What were people waiting on?

35:16

-

Well, it wasn't that the statute was impeding the visits.

35:18

We were waiting to see, what could we do for him.

35:20

And if you recall, during this time, the DC Circuit ruled

35:24

that these individuals were not entitled to proceed

35:30

with habeas corpus

35:33

and the Department of Justice made clear

35:34

that if that happened,

35:37

then no longer were any of the lawyers going to be deemed

35:38

to represent the detainees, 'cause we were habeas lawyers.

35:41

If there were no habeas petitions pending,

35:45

then we wouldn't be able to represent them.

35:46

And so there was the limbo status of,

35:49

well, his case was one of those before the Supreme Court,

35:52

Boumediene,

35:56

whether we would be able to continue to represent him

35:56

and what our role would be, was going to depend

35:59

on what the Supreme Court did in Boumediene.

36:02

And other than going to see him,

36:04

to keep him apprised of what was going on,

36:07

there wasn't anything we could do for him at that stage.

36:10

Interviewer

How were you feeling about that,

36:13

watching this whole thing unfold?

36:14

-

Well, if you recall,

36:16

the Supreme Court initially denied cert in Boumediene.

36:18

And I remember thinking then that the consequence of that

36:23

if the DC circuit ruling stands

36:26

is that he would no longer have me

36:29

or Center of Constitutional Rights lawyers representing him.

36:32

He would then have the military attorneys.

36:36

Now, they're wonderful military attorneys,

36:39

but he would no longer have any ability

36:40

to have a habeas lawyer.

36:43

And it was very discouraging

36:45

when the Supreme Court denied Boumediene.

36:46

And I remember the decision on the part

36:48

of the Guantanamo lawyers to decide to ask

36:50

the Supreme Court to reconsider the denial of cert.

36:52

It's very unusual for the Supreme Court to grant cert

36:55

after denying cert.

36:58

Interviewer

So were you discouraged, then,

37:02

as to where America was going at that point?

37:04

Did you think that it was just getting worse

37:07

in terms of representation and the right of habeas?

37:09

-

There's been tremendous discouragement on so many levels

37:16

about where America's been going since September 11.

37:19

The Guantanamo detainees who've been there

37:22

something like Ghareby, for almost 8 years,

37:25

is tremendously discouraging, but also of course

37:28

Congress passes the Detainee Treatment Act

37:31

that says that non-citizens held in Guantanamo

37:34

can't have access to federal courts or habeas corpus.

37:38

The Supreme Court in June of 2006 says,

37:40

"Oh, but that only applies

37:43

to those brought to Guantanamo in the future."

37:45

Doesn't apply to those like Ghareby who were already there,

37:47

which seems a real victory.

37:50

Congress then comes back with the Military Commission Act

37:52

that says non-citizens held as enemy combatants

37:55

have no right to habeas corpus.

37:58

The DC circuit then upholds that law,

38:00

the Supreme Court denies review,

38:06

the Supreme Court reverses itself, takes the case,

38:08

And then finally on June 12th, 2008

38:10

says that they can't go forward with habeas corpus.

38:13

Interviewer

Did you think that was a victory

38:16

for America or for the rule of law?

38:18

When we finally had Boumediene?

38:20

-

I think Boumediene is a tremendous victory

38:22

for the rule of law.

38:24

The idea that individuals can be imprisoned indefinitely

38:25

without counsel or meaningful hearings is inimical

38:29

to the idea of the rule of law.

38:32

I think the Supreme Court here was saying that

38:34

some law has to apply to those in Guantanamo.

38:37

To me, one of the aspects of the Bush administration

38:40

position that's most repugnant was

38:43

that there was a group of people in a place

38:46

where no law could apply.

38:49

Their position was the Geneva accords

38:51

didn't apply to these individuals

38:52

and the United States constitutional statute law

38:54

didn't apply to these people.

38:56

So the government could do whatever it wanted.

38:58

That kind of lawlessness is

39:00

the antithesis of the rule of law.

39:02

Interviewer

Going forward after Boumediene,

39:06

are you satisfied

39:07

with the way the law has gone forward since then?

39:09

-

It's gone so slowly.

39:13

I'm also very distressed that the plan to close Guantanamo

39:16

within a year of Obama's inauguration hasn't happened,

39:20

that the most recent word from the administration

39:24

is that there's going to be a group of detainees

39:26

they plan to continue to hold without trial.

39:28

And these may be dangerous individuals.

39:31

They may be there by mistake.

39:35

But how can we ever know without a fair trial?

39:36

Interviewer

What does that mean to you

39:39

as a constitutional law professor

39:40

who's done civil liberties for 30 years?

39:41

-

I deeply believe in the United States Constitution.

39:47

I believe that the Constitution has served this country

39:51

incredibly well for over 200 years.

39:54

There were moments of disappointments and embarrassment,

39:56

like how the Supreme Court dealt

39:58

with the interment of the Japanese

40:00

or the Supreme Court upholding "separate but equal"

40:01

or the Supreme Court protecting slavery.

40:04

So I'm not naive in my praise of the Constitution

40:06

but overall it's worked well.

40:09

And I think it can work very well here.

40:11

I don't think we need to have trials

40:14

and military tribunals.

40:16

We can use Article 3 courts.

40:17

I don't think we need to hold people without due process.

40:19

We can trust due process to come to the right results.

40:21

And the idea that now for eight years,

40:24

individuals have been held without due process

40:28

and the Constitution is disappointing beyond words.

40:31

Interviewer

Did you think when Obama was elected

40:36

things would change and are you disappointed

40:40

with the way he's moving since then?

40:42

-

In some ways Obama has done what I would hope he would do.

40:47

He immediately renounced torture.

40:52

Now that doesn't seem like such a big deal,

40:54

but as soon as he did so,

40:57

Vice President Cheney was on the news

40:59

saying we need enhanced interrogation techniques.

41:01

But even now, it's torture.

41:04

He also made clear

41:07

that the United States would follow the law,

41:08

that he didn't accept the notion that there was a place

41:11

or a group of people where the law didn't apply.

41:14

But there's many ways which I've been very disappointed

41:16

by what the Obama administration has done.

41:18

That they've not carried forth their proposal

41:21

to close Guantanamo.

41:24

Now, to some extent

41:26

that's not the Obama administration's fault.

41:27

Congress has passed laws that have limited the ability

41:28

to bring people to the United States.

41:30

The statement by the Obama administration

41:33

they'd continued to have a group of individuals

41:34

that they would hold without trial seems to me

41:37

a tremendous disappointment.

41:41

Their aggressive use of the state secrets doctrine

41:43

to get cases dismissed and to prevent accountability.

41:46

The refusal to completely renounced rendition.

41:50

Those are places where I expected better from Obama.

41:53

Interviewer

Do you know any more about rendition

42:00

or state secrets that you can explain to people

42:03

as to exactly what we're talking about

42:07

with rendition and state secrets?

42:10

-

Sure.

42:12

The state secrets doctrine is a principle

42:14

articulated by the Supreme Court

42:18

that says that there are some matters

42:21

that courts should not delve into at all.

42:23

The most powerful example that I can give

42:25

as relates to the War on Terror,

42:27

there's a man named Khalid El-Masri

42:29

who was apprehended by mistake at the border in Germany.

42:32

CIA officials in particular had a hunch

42:36

that he might be dangerous.

42:39

Apparently this was a hunch based on mistaken identity.

42:40

He was taken and he was tortured.

42:43

Finally, after extended torture

42:46

it was discovered that he made a mistake.

42:48

"See, I made a mistake, it was mistaken identity."

42:51

And they dumped them on the streets of Albania.

42:53

He brought a lawsuit about this

42:56

and the government said the suit can't go forward

42:57

because it can reveal state secrets.

43:00

And the federal district court,

43:02

the United States Court of Appeals for the Fourth Circuit

43:04

agreed with the government in dismissing the case.

43:06

There's the Arar case from the Second Circuit,

43:08

of a man who was apprehended in Canada

43:11

and horribly mistreated.

43:13

And the case was dismissed

43:16

based on the state secrets doctrine.

43:17

The Obama administration has continued to

43:19

aggressively push the state secrets doctrine

43:22

which then prevents accountability.

43:24

There's many ways to protect classified information.

43:26

Suits rarely need to be dismissed in order to do so.

43:29

Interviewer

So going forward, Erwin,

43:34

do you think we're going to do better

43:35

than the last eight years?

43:38

You see us doing better?

43:39

-

Yes. I think we're doing better and will do better.

43:42

I don't know that we'll do as well as we should.

43:45

I think the inclination of the Obama administration

43:48

is far more to follow the law

43:51

than it was in the Bush administration.

43:54

I don't think there are people in the Obama administration

43:57

like Dick Cheney and David Addington and John Yoo.

43:59

And so I don't see we're going to have memos coming

44:02

in the Obama administration legitimizing torture.

44:04

On the other hand, I worry that the Obama administration,

44:08

whether it's part of the executive

44:14

or whether a desire to be post-partisan,

44:16

isn't willing to go as far as it should.

44:18

I strongly believe that there should have been

44:20

some kind of truth commission,

44:22

something to cover the illegalities that occurred

44:24

during the Bush administration.

44:27

And I think for political reasons the Obama administration

44:28

made the terrible mistake to not do that.

44:31

So I think there's things we will never know

44:33

because there wasn't the non-partisan investigation

44:36

that was required.

44:38

I was pleased when Attorney General Holder said

44:39

that there was going to be a trial

44:42

in federal district court in New York.

44:44

And now the most recent news as well,

44:47

They're going to back away and have a military tribunal.

44:48

I don't think a military tribunal can ever have

44:51

the legitimacy, around the world, in the United States,

44:52

that a trial in an Article 3 court can have.

44:55

Interviewer

Where do you see your role going forward?

44:58

Are you still representing Ghareby?

45:01

-

I'm one of several lawyers now

45:03

who's representing Ghareby.

45:05

A professor at American Law School and his clinic

45:07

are working at Ghareby's behalf

45:09

as the Center for Constitutional Rights.

45:10

So I'm co-counsel, I'm no longer primary counsel.

45:12

Interviewer

Do you see yourself

45:15

going back to Guantanamo?

45:17

-

Yeah, if I needed to go back to Guantanamo

45:19

I'd go back in an instant.

45:22

If there's anything that I can do for Ghareby,

45:23

I still consider him a client

45:25

and still consider myself representing him

45:27

though there's other counsel who are involved now.

45:29

Interviewer

Are you involved

45:31

in any Guantanamo litigation at all

45:32

or do you see yourself getting involved?

45:34

-

One of the changes in my life over this time is

45:37

I've become dean of a new law school.

45:40

And I have discovered that that's

45:42

a quite all-consuming responsibility

45:43

and I can't do all of the things that I was doing before

45:45

and do this.

45:49

And one thing that I've had to give up

45:50

is a lot of pro bono litigation that I used to be doing.

45:52

And so again, if the opportunity presents itself

45:55

to be involved, I will be involved.

45:59

One of the great developments since this all started

46:01

is the presence of so many lawyers representing detainees.

46:04

So many big firms involved.

46:08

When I started it was just Steve Yagman and me.

46:10

Interviewer

Do you think your life has changed

46:13

because of your involvement in that first case

46:15

and then your going to Guantanamo?

46:18

-

As I think of the things that I've done professionally

46:25

that I'm most proud of, being one of the first lawyers

46:28

to represent Guantanamo detainees,

46:31

being the first lawyer to argue in court

46:34

on behalf of a Guantanamo detainee,

46:36

being the first lawyer to argue in a court of appeals

46:37

on behalf of a Guantanamo detainee

46:39

being the first lawyer to win a case

46:41

on behalf of a Guantanamo detainee,

46:42

are things that I'm very proud of.

46:44

Interviewer

Has that changed your life?

46:47

-

I don't know.

46:49

I mean, changed my life? Probably not.

46:50

Interview

You're still upbeat.

46:53

I mean, I get the feeling that you're still very positive

46:56

about a future in America,

47:00

a future going forward in that.

47:02

Do you think something like this could happen again?

47:06

I mean, we read about it in books

47:08

and now we lived through it.

47:10

-

Well, we're not over this.

47:12

The problem I have with the way you phrase the question

47:15

is it makes it sound

47:16

like this episode in American history is past.

47:17

It's not. There's still the people in Guantanamo.

47:20

Some who've been there eight years.

47:24

The idea that we're going to keep people

47:27

in prison for eight years, for their life,

47:28

without due process is just so abhorrent

47:31

to what the Constitution is about.

47:34

I also believe that at some point

47:37

there's going to be another terrorist attack

47:39

on the United States.

47:41

I hope that I'm wrong, but it seems almost inevitable.

47:42

And I fear that when that happens,

47:45

that what followed September 11th come all over again.

47:48

There'll be something like the Patriot Act adopted,

47:51

there'll be pressure to do things

47:54

like extreme interrogation, things like Guantanamo.

47:56

I hope there'll be an administration

48:00

with a different inclination

48:02

than the Bush administration had,

48:03

one more oriented towards the rule of law,

48:05

but throughout American history

48:08

when there's been a crisis, especially foreign-based one,

48:10

the response has been repression,

48:13

and the events of September 11th

48:15

have tragically followed that pattern.

48:16

Interviewer

Do you think even someone like Obama

48:24

could end up in that situation of repression

48:26

'cause the executive has that power

48:30

and that's just what seems to happen?

48:33

-

I would hope that Obama as a lawyer

48:38

is a constitutional law professor.

48:42

We have far more of a commitment to the rule of law

48:45

than his predecessor, and I'd hope that those he's appointed

48:49

to high level positions would have far more

48:52

of a commitment to rule of law

48:54

than those who occupied similar positions

48:56

in his predecessor's administration.

48:58

And there are so many ways in which the Obama administration

49:01

is better than the Bush administration,

49:03

but there are too many ways

49:06

where it's continued the policies

49:07

of the Bush administration.

49:09

And it's very disappointing.

49:10

(indistinct talking in background)

49:13

Woman

No, I would like confirmation.

49:16

Sounds as though you did not feel

49:18

that there was obstruction going on

49:21

from the government towards you,

49:24

that maybe they were inept and they're very slow,

49:25

but do you see the overall pattern

49:28

of how slow things are as obstructionist?

49:31

-

There were many lawyers who I've heard

49:38

felt that the government was being obstructionist

49:41

towards them.

49:43

I never felt that the people

49:44

in the Department of Defense, the Department of Justice

49:46

who I was dealing with were being obstructionist towards me.

49:48

There were instances where things got canceled

49:51

and had to be rescheduled, but not unduly.

49:53

So there was always an explanation that made sense.

49:58

It took a long time to get things done sometimes

50:02

but I expect that dealing with the government.

50:05

Woman

Another question.

50:09

You talked about when you got all those emails

50:11

and voicemails about being more public

50:15

about what was going on.

50:18

Do you have any other regrets in terms of the process

50:19

of what either you or other folks

50:23

who are working on this issue

50:25

could have done differently,

50:28

to have maybe informed the U.S. public

50:29

or done something more to bring back the rule of law?

50:32

-

I wish that I had much more aggressively

50:41

tried to stay in touch with Ghareby.

50:44

I think there were too many gaps in my communication

50:47

with him during times that nothing was going on

50:50

and I think that that was a mistake on my part.

50:53

In terms of reaching out to the American public,

50:57

I think that happened relatively quickly, but

51:02

I wish it had happened faster,

51:08

I wish it had happened in louder voices,

51:09

but I think in time,

51:12

the American public was certainly informed

51:13

of what was happening.

51:16

I think the difficulty is that I don't think

51:16

that the American public has ever been able to see

51:19

the Guantanamo detainees as human beings,

51:21

that maybe that'll be the beauty and the brilliance

51:24

of this project, but the Guantanamo detainees

51:27

can still too easily be characterized as terrorists

51:30

and not being presented as human beings.

51:34

I was so struck when there was the commercials last week

51:37

in the news and doing some media stuff around them

51:41

where it was being presented as,

51:43

"How could these lawyers who represented terrorists

51:44

now be in high-level positions in the government?"

51:47

And of course, if anything, I say "alleged terrorists."

51:49

we don't know why they're there.

51:53

But I think the fact that they're not presented

51:54

as human beings makes it too easy to caricature them.

51:58

And I think that the lawyers who have been to see them

52:01

share some of the blame for that.

52:03

Woman

Because why?

52:08

-

I don't think we've done a good enough job

52:10

to tell their stories, to make them seem human.

52:12

To the extent that people like me are the ones

52:15

who have gone to see them,

52:17

we're the ones who have to describe them.

52:18

I unfortunately am not very good at descriptions.

52:22

I would be a terrible person as an eye witness

52:24

but I still want to be able to tell

52:27

what this man looks like.

52:28

Interviewer

I think in every war

52:34

you always have us against them, right?

52:35

(indistinct) And that's what keeps wars going,

52:38

don't you think?

52:41

-

Sure.

52:42

You go back to World War II

52:43

and the general who was responsible

52:44

for the Japanese internment, General DeWitt said,

52:46

and I can still recite the quote verbatim,

52:48

"A Jap is a Jap,

52:50

makes no difference if he's an American or not."

52:51

During World War I, states like Nebraska

52:53

prohibited the teaching of the German language.

52:55

And so there is a vilifying and a caricaturing of the enemy.

52:58

And it's certainly gone on here.

53:04

Interviewer

So looking back then,

53:08

I guess I'll ask that same question again.

53:10

You could have perhaps done more

53:12

and other people could have done more

53:15

and it's easier to say that now, but maybe we all wish...

53:16

-

Yeah, I do especially at the beginning.

53:24

After a time, there were so many lawyers involved

53:27

that I think that there was less need.

53:31

You've written a wonderful book,

53:34

Joe Margulies wrote a great book on Guantanamo.

53:36

There were many people writing

53:40

to inform the American public.

53:41

There's been plays done about it.

53:43

The Red Cross has done reports about it.

53:46

But I think that the unique opportunity that I had

53:48

and the unique way that I failed was at the outset,

53:52

that with filing the first lawsuit,

53:55

I had a platform to criticize

54:00

what the United States government was doing.

54:02

And I didn't use the platform.

54:04

And I made the conscious choice that I was too afraid

54:05

of being accused of doing this for media exposure.

54:09

I didn't want to be perceived

54:12

that that's why I was involved,

54:14

so decided not to take the media invitations that were there

54:15

and I made a mistake.

54:20

Interviewer

People might not have

54:23

believed you anyway, right?

54:24

Don't you think?

54:25

-

I think people who sent me the hate mail

54:28

weren't going to be convinced by anything that I said.

54:32

On the other hand, there are lots of people

54:35

who might've been open-minded.

54:38

And if they had a constitutional law professor

54:40

explaining to them why it violates international law

54:42

and constitutional law to do

54:45

what the United States government was doing,

54:47

maybe it could impart a shifting public sentiment

54:49

a bit earlier.

54:53

That's the platform that I had the opportunity to have

54:54

in January 2002.

54:57

And I made the mistake in not using it.

54:59

Woman

I do have another question.

55:02

-

Sure.

55:03

Woman

Some people have been able

55:04

to leave Guantanamo who appear to be guilty.

55:07

And some people are still at Guantanamo

55:11

who appear to be innocent.

55:14

Do you have any sense of what determined

55:16

whether somebody was able to leave Guantanamo or not?

55:20

Your client is still there.

55:24

Do you understand the reasoning?

55:26

-

My sense is, it's all based on intelligence information

55:30

that the lawyers have no access to,

55:34

that the government knows things

55:37

about some of the detainees that never shows up

55:39

in the Combatant Status Review Tribunals,

55:42

that causes them to believe

55:45

that these are the people they should keep

55:48

and these are the people that should let go.

55:50

And the difficulty of the secret evidence

55:52

is that-

55:54

-

It's secret.

55:55

-

It's secret.

There's no opportunity to know or to rebut it.

55:56

So I can say to you in all honesty that I don't know

56:00

why Ghareby is there.

56:03

Woman

But overall it sounds as though

56:08

your conclusion is that most of the folks

56:10

who are still there are guilty of a terrorist attack.

56:12

-

I have no conclusion.

56:16

-

Okay.

-

No, I have no conclusion as to whether

56:18

those who are still there should be there,

56:20

should be detained, tried or not.

56:22

Let me be clear.

56:26

I think everyone is entitled to due process.

56:27

Everyone should be tried.

56:31

Whether some who are there should be released without trial

56:34

whether some are likely to be convicted at trial,

56:39

I have no opinion

56:42

because I don't have access to any of the evidence.

56:43

All I believe is that long, long ago

56:44

trials should be held with these individuals.

56:49

And I prefer very much they be trials

56:51

in an Article 3 court,

56:53

'cause I believe that no military tribunal

56:54

can have the credibility of a federal court.

56:55

Interviewer

Erwin, I need to ask you

57:00

one more question here.

57:01

-

Anything.

Interviewer

In 50 plus years,

57:03

did you ever think you would see something

57:04

like you saw in the last eight years?

57:08

Having been a historian,

57:11

having seen over the 200 years of America

57:12

that things like this did happen?

57:16

-

Every time the United States has dealt

57:22

with a foreign-based crisis

57:24

there's been some form of repression.

57:26

It's taken a different form each time.

57:29

In World War I, you had the suppression of speech

57:32

of those criticizing the war, the Palmer Raids

57:36

rounding up people who were non-citizens.

57:38

In World War II,

57:41

you had 110,000 Japanese Americans being interned.

57:42

During the McCarthy era, you had people losing their jobs

57:45

and their freedom based on ill-founded suspicion.

57:49

Soon as September 11th happened, I believed

57:53

that we would have seen some deprivation of liberties

57:57

and some repression.

58:00

I don't think I could have imagined

58:02

it would have taken the form that it did.

58:03

I never thought that the United States government

58:05

would engage in systematic torture as it did.

58:07

I never thought the United States government

58:11

would imprison people for eight years

58:13

and say that it didn't have to provide them due process.

58:15

But unfortunately I think this,

58:18

one of the worst patterns of American history,

58:20

has repeated itself.

58:22

Interviewer

How will the world look at us

58:25

50 years from now?

58:26

-

I think this is a tremendous embarrassment

58:28

to the United States.

58:31

It's not possible to go anywhere in the world,

58:33

as you know, without people talking about Guantanamo,

58:36

the torture done by the American military.

58:40

I think to the extent that the United States

58:43

was a moral leader in the world,

58:46

especially after World War II and Nuremberg,

58:49

that's all been squandered

58:52

and it's not going to be easily regained.

58:54

Interviewer

Is there something I didn't ask you

58:58

that you can share with us?

59:01

-

I turn to you.

59:10

Is there anything else I can talk about

59:10

that would be useful?

59:11

Woman

Johnny, do you have anything?

59:14

Johnny

No, no.

59:15

Interviewer

It just seems that when people look back

59:16

at this time, they're going to wonder,

59:19

how could we be like this?

59:20

Woman

Yeah, what could Americans do?

59:22

Those Americans who believe as you do

59:25

that it's time to restore the rule of law.

59:29

What would you suggest to them?

59:32

How do they go about as individuals

59:34

who are not habeas lawyers, to work on this issue?

59:37

-

Part of the difficulty in rallying public support

59:50

for the Guantanamo detainees is,

59:54

it's so removed from people's lives.

59:55

In my lifetime I thought that the thing

59:59

that most mobilized people was the Vietnam War.

1:00:02

'Cause as people feared being drafted

1:00:06

or having loved ones being drafted,

1:00:07

it gave them a personal stake.

1:00:09

So few people in the United States have contact to anybody

1:00:11

who has contact to anybody in Guantanamo.

1:00:15

It just doesn't touch their lives,

1:00:17

so it's very hard to mobilize people.

1:00:19

Those in Guantanamo have been caricatured as terrorists.

1:00:21

There's no sympathy for terrorists.

1:00:24

And I don't think for many people

1:00:27

there's an instinctive belief in due process.

1:00:29

It's "These are terrible people.

1:00:32

They deserve what's come to them."

1:00:34

And so it's very hard to rally public support

1:00:36

for those in Guantanamo.

1:00:38

I think that what has to be emphasized is our core values,

1:00:40

that our most cherished values are about due process

1:00:46

and things the Constitution provides.

1:00:51

The other thing that I've noted is

1:00:52

I've given countless speeches about civil liberties

1:00:54

and the war on terrorism since September 11th.

1:00:56

Those in the audience who were most sympathetic to me

1:00:59

are those who have served in the military

1:01:03

or have loved ones have served in the military.

1:01:05

So many times I've heard, "How can the United States

1:01:07

expect foreign countries to follow the rule of law,

1:01:11

the Geneva accords, when they have American prisoners,

1:01:14

if we don't follow the rule of law and the Geneva accords

1:01:17

when we have foreign prisoners?"

1:01:19

Interviewer

So what can individuals do?

1:01:22

They who aren't lawyers, you think?

1:01:25

-

I think individuals can be most effective

1:01:28

by joining organizations.

1:01:30

And so I think the organizations like the ACLU

1:01:31

and the Center for Constitutional Rights

1:01:35

have just been so important.

1:01:37

I think individuals also have the ability to speak out

1:01:39

to representatives, to senators, even to the President

1:01:42

to have voices heard that this isn't my country

1:01:46

when it's doing these things,

1:01:50

this isn't the America that I grew up believing in.

1:01:51

Chemerinsky, Erwin - Interview master file

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