Smith, Clive Stafford - Interview master file / Witness to Guantanamo / Duke Digital Repository

Interviewer

Okay.

0:05

Okay. Good morning.

0:06

-

Good morning.

0:07

Interviewer

We are very grateful to you

0:08

for participating in a Witness to Guantanamo project.

0:10

We invite you to speak of your experiences and involvement

0:14

with the detainees who were held in Guantanamo Bay, Cuba.

0:17

We are hoping to provide you with opportunity to tell

0:22

your story in your own words.

0:24

We are creating an archive of stories that people in America

0:26

and around the world will have a better understanding

0:30

of what you and others have contributed and experienced

0:32

and a future generations must know what happened

0:38

at Guantanamo, and by telling your story

0:40

you are contributing to history.

0:43

-

I don't like to view myself as contributing to history,

0:46

that makes you sound very old.

0:47

(both laughs)

0:50

Interviewer

Well, the sad thing is that

0:50

this might just be 20 years before people will pay

0:53

attention to what really happened.

0:57

If at any time during this interview

1:00

you would like to take a break, please tell us and you-

1:02

-

You obviously haven't learned the lessons of Guantanamo,

1:05

you're meant to abuse me, keep the lights on rather bright

1:08

and don't let me move for hours.

1:11

You're never gonna get the answers you want

1:14

if you're nice like that.

1:16

-

Well, it's your show, Clive,

1:20

so whatever answers you wanna give us.

1:21

And I think we're ready to go.

1:29

-

Okay. Good.

1:30

Interviewer

I want to start with just

1:31

if you could tell us your name and where you're from

1:32

and where you're living now,

1:34

and a little bit about your age and nationality.

1:36

Instructor

And just one thing,

1:40

the closer to me you are the better.

1:41

Interviewer

Okay. Got it.

1:43

Okay. Why don't we

1:46

start with your education and a little background.

1:48

-

My name's Clive Stafford Smith,

1:51

I'm the Director of a charity called Reprieve in London.

1:53

I grew up in Britain, near Cambridge

1:56

and went to America when I was 18

2:01

because I was obsessed with the death penalty

2:03

and I thought I'd come over to America and sorted all out.

2:05

I had the naive day of youth and I spent 26 years

2:08

in the United States representing people on death row

2:12

and I got American citizenship while I was there

2:16

which was extraordinarily important

2:19

for the Guantanamo work that started in 2002.

2:21

And the very beginning I became very annoyed

2:26

at the fact that we were doing that and struck me

2:29

as profoundly hypocritical.

2:31

So I got involved in that from the early days

2:34

and then when Emily and I moved back to England in 2004

2:37

that became a very large focus of what I was doing

2:41

for the next few years, so that's it.

2:44

Interviewer

Could you give us a little background

2:46

on your schooling?

2:48

-

Oh my goodness, you wanna know about my schooling?

2:49

I went to a old backronym hall school in Suffolk,

2:51

I went then to Radley College just outside Oxford for my

2:55

what we call public school which naturally means

3:01

it's private.

3:03

And then I went to America at that point went to UNC

3:05

at Chapel Hill for three years and then I went

3:08

to Columbia Law School.

3:11

Interviewer

And

3:14

currently what are you doing?

3:16

-

Now, I run a charity called Reprieve.

3:18

We do two things,

3:21

one is representing people facing the death penalty

3:22

around the world and the second is trying to help represent

3:25

people who are in secret prisons and reunite them

3:29

with their legal rights.

3:32

Interviewer

Let's begin,

3:35

if you could tell us how you got involved in Guantanamo?

3:36

-

Well, I remember vividly in January, 2002

3:39

when George Bush announced that we were gonna have this

3:44

Guantanamo thing, look I've always had a philosophy

3:46

about the death penalty and it is basically that we pick

3:49

on a group of people,

3:53

we instruct the folk of America to hate them

3:54

and we do that in order to divert their attention

3:57

from our other feelings.

4:00

So we have a terrible crime system for example,

4:01

in your lens I was held up in the U S seven times I think.

4:04

And so rather than do sensible things about crime

4:09

we try to blame it all on the people on death row.

4:12

And then rather than allow the fact

4:15

the emperor wears no clothes to be seen by people

4:18

we put death row miles away from anywhere.

4:21

We have opinions like Jura Tana versus Murray that says

4:23

that someone on death row has no constitutional right

4:26

to counsel,

4:29

we have Herrera versus Colin's that said that

4:30

if you're innocent of the death penalty that's not relevant

4:32

under the constitution to whether you should be executed.

4:35

These insane rules that are designed to make sure

4:37

that no one shows that this whole death row process

4:41

is a mockery achieves nothing and just diverts everyone's

4:45

attention.

4:48

Now, the moment they opened Guantanamo Bay

4:49

or announced they were gonna open it it struck me as exactly

4:52

the same except far worse.

4:55

Here where we in the name of democracy and the rule of law

4:58

setting up a prison in Cuba for goodness sake

5:02

which is where we've said they haven't had any human rights

5:05

for several decades

5:07

and we were gonna hold these people in Cuba.

5:09

They were gonna be a discreet group of people

5:11

who we were taught to hate,

5:13

who we were told by the root of all evil,

5:15

these Muslim people with beards.

5:17

They weren't allowed lawyers,

5:19

I mean, far from worse than death row,

5:21

at least on death row you could have some volunteer

5:23

lawyer but in Guantanamo you couldn't even have a lawyer,

5:25

you were gonna be held that intermittently.

5:29

And I looked at that and I thought,

5:32

my goodness, it's always hypocrisy

5:33

that basically is the yeast that fertilizes

5:37

and ferment hatred and here was the most hypocritical thing

5:41

that we as a nation could possibly do.

5:44

What was it gonna do?

5:46

Is gonna everyone off around the world.

5:47

So my natural instinct was to sue Georgia Bush,

5:49

I mean, who would rather do anything else?

5:53

So that's, I got involved at the very beginning.

5:55

Interviewer

So you left Louisiana then?

5:58

-

No. I was still doing capital trials.

6:00

I mean, this suddenly sprung up on us and those

6:03

in the middle of a lot of capital cases,

6:05

so I wasn't gonna stop that.

6:07

But one of my lifetime weaknesses has always

6:09

been saying no to things.

6:13

So the fact that I thought I'd probably had 30 capital cases

6:15

at the time

6:18

but that wasn't gonna stop me from volunteering to Guan.

6:20

Interviewer

How did you volunteer?

6:24

How do you find clients to represent?

6:25

-

Well,

6:27

there was a bigger issue in the early days than that

6:28

(clears throat) and that was finding any allies.

6:31

I mean, I thought that all of my death penalty colleagues

6:32

would love nothing better than to go sue Bush

6:36

and I immediately contacted people and I was frankly

6:39

very surprised and looking back on it I was naive

6:43

but I thought we would all want to do that.

6:46

But I underestimated I think how roar America was

6:48

after 9/11.

6:52

In growing up in Europe I think we were much more used

6:55

to these sorts of nightmares and then my parents would talk

6:58

about World War II and the Blitz and my mum would talk about

7:02

sitting under a table while the bombs were coming over.

7:04

And so that was very much more real

7:08

whereas when you think historically about the U S,

7:10

how many times is the U S actually ever been invaded?

7:13

You could talk about 1812 or more technically 1813

7:16

when the British came and burned the White House,

7:21

you could talk about Bill Harper

7:24

and then you could talk about 9/11.

7:26

That's basically it really.

7:28

And so America was just very un-used to this sort of horror

7:30

and consequently responded even left wing Americans

7:35

I think responded

7:38

much more tentatively to this process.

7:41

So it took a while and that it was only Joe Margulies

7:43

and then Mike Ratner CCR who

7:47

responded to the sorts of emails I was sending out

7:51

about how we needed to go sue people.

7:54

Interviewer

So you send out emails to a number of people

7:56

and those two responded?

7:59

-

Well,

8:01

I got in touch with Joe actually,

8:03

I got in touch with a whole bunch of death penalty friends

8:04

of mine and most were actually very uninterested in it.

8:06

Joe was immediately interested and it was Joe who then

8:09

put me in touch with CCR and the three of us got together

8:13

on it.

8:16

Interviewer

And what was your design?

8:17

-

Well, I think our basic thing was, this is wrong

8:19

and we went to law school all of us to represent powerless

8:22

people who were being trampled on by the government.

8:26

Now I gotta say, I assume that the U S had captured a lot

8:29

of people in Afghanistan who were up to no good,

8:34

but I thought they'd make some mistakes

8:37

and the issue here was simply a matter of a fair trial,

8:39

it was not whether they were.

8:42

I wasn't going into this thinking everyone's totally

8:44

innocent, I turned out that actually was much more cynical

8:46

than I should have been.

8:50

But that was the notion, that if we're here for democracy

8:52

and the rule of law we gotta have the rule of law,

8:56

we can't just throw it away at the first moment we panic.

8:58

Interviewer

What did you three do then at the beginning?

9:02

-

We wanted to sue but we had to have a client.

9:06

And immediately after they opened Guantanamo

9:09

there was a lawsuit in California actually

9:12

called Coalition of Clergy brought by various

9:15

very well-intentioned people but they didn't really have

9:18

the clients they needed,

9:20

they were doing it as sort of a bunch of clergy as next

9:21

friends for the prisoners and predictably

9:25

they got thrown out on standing grounds.

9:28

I'd done a lot of this next friend stuff in death penalty

9:31

cases because when a person becomes mentally ill

9:34

on death row and gets terribly depressed and wants to drop

9:37

their appeals, you're inevitably in the situation

9:40

of litigating through an ex friend.

9:43

So I was pretty familiar with that as well as Joe, I think.

9:46

And so we knew we had to get family members

9:49

and the only place we could immediately find them

9:52

was Britain because,

9:55

of course the U S wasn't publishing a list of prisoners

9:58

in Guantanamo.

10:00

We didn't get a list of prisoners until May the 16th, 2006,

10:01

so it wasn't for another four and a half years.

10:06

So we had to find out who these people were.

10:09

That was something that offended me,

10:12

that a democratic government would bang up a bunch

10:14

of people in prison and keep secret who they were,

10:17

I mean, how stolen is can you get.

10:20

So I was annoyed at that but the way you would find

10:23

out about it was the U S would tell the British government

10:26

that they had British people,

10:29

the British government would then tell the families,

10:31

the families would go to British lawyers,

10:33

in this case Gareth Pierce and Gareth got involved

10:35

with us, contacted us and she gave us authorizations.

10:40

And so those were the first clients

10:44

and that's why it was Russell versus Bush was Shafiq

10:46

was the first person whose family gave us an authorization.

10:50

Interviewer

Didn't you also have a connection

10:54

with Hicks.

10:56

-

Well, that was the next one was Australia.

10:57

Typically again, these were the more open societies

10:59

where you could find it out and typically also there were

11:02

the people that we had contacts with the British

11:05

and the Australians.

11:10

Interviewer

And what do you think in terms

11:11

of the litigation do you think it was gonna go forward,

11:13

were you positive?

11:15

-

Oh yeah. I always thought we'd win.

11:16

I mean, there's one thing about this litigation stuff

11:17

is that when justice is on your side

11:19

you actually do win 99% of the time if you do the job right.

11:22

The only people who get killed are the ones who

11:26

are badly represented really.

11:29

I mean, that's not true always,

11:31

in fact, I'm in the middle of writing something

11:34

at length about how fluid the justice system is.

11:35

But if you recognize the floors,

11:38

you can normally get to the right result.

11:42

Now, there was a big pressure to do the wrong thing

11:44

if we'd lost in the Supreme court would have just carried

11:47

on until we won,

11:49

that's just the nature of the beast.

11:51

Interviewer

But you were positive throughout

11:54

even when you were losing the law court?

11:56

-

Yeah. I mean, I've always thought about Guantanamo,

11:58

Joe was the one who first said this actually

12:02

and I think it's a lovely phrase

12:04

I wish I could take credit for it but it's not mine.

12:05

Joe said in one of our early meetings that the point

12:08

of Guantanamo was all about secrecy,

12:11

that the Bush administration wanted to be seen to be doing

12:13

something though they couldn't capture bin Laden

12:17

for goodness sake, here we are years later we still haven't

12:20

captured bin Laden or Milaroma or the big time guys.

12:23

So to cover up that huge floor and the process

12:26

they banged up a bunch of people and said,

12:30

"Look, these guys in orange with beards."

12:32

So what Joe said was that their interest is in secrecy

12:36

because that's the only way it did suits their purpose.

12:40

If we open it up, they will close it down,

12:42

this is mantra and that was a very wise thing.

12:45

So our goal always following the rules legitimately

12:48

trying to change the rules, not breaking them

12:52

was to get as much information out about the place

12:55

as possible, and so from quite early days information

12:58

was coming out about prisoners being abused and so forth.

13:02

Interviewer

How did that happen?

13:05

-

Well normally for example, it was people who'd been

13:07

in Bagram and released without going to Guantanamo

13:09

were the first sources of information,

13:12

every now and then there was someone who had been brought

13:15

into Guantanamo, like I remember there was a doctor

13:18

who was there in the early days who was just horrified

13:21

by what he saw.

13:24

And as we brought the lawsuit we tended to become

13:25

the fulcrum of the process from when people would contact us

13:29

when they had issues they wanted to talk about.

13:32

So that's gradually how the information came out.

13:36

Ultimately of course it was when we got in there

13:39

to see the prisoners but until that, which was 2004 up

13:41

until then it was more getting information from families.

13:45

Interviewer

Did you apply to visit the prisoners

13:48

earlier?

13:50

-

Very early on there were two problems.

13:51

One was the civil litigation, the habeas

13:55

and the other was the military and Joe and I both decided

13:58

we were gonna try to represent people in the military

14:02

commissions.

14:05

So from the very beginning we were applying for security

14:06

clearances and so forth.

14:09

The "military" lost our applications

14:11

twice, we had to file them three times

14:15

and it took 15 months.

14:18

And the people in the military office were telling us

14:20

this is a fast, they haven't lost them,

14:24

they've thrown them away they don't want your people

14:26

involved.

14:28

But in the end we created it enough of a fast

14:29

that we did get security clearances and that was just about

14:31

when the whole process, when we won in the Supreme court.

14:36

Interviewer

Do you think they would have lost anyone's

14:40

application, so deliberately yours and Joe's because

14:41

of who you were?

14:44

-

I don't think they would have lost a

14:45

member of the Republican party who was sworn to ensure

14:48

that America look good under all circumstances

14:52

even if she was torturing people.

14:56

No, I think they would have allowed that one to come through

14:58

but

15:01

I don't think it was simply because Joe and I were death

15:03

penalty lawyers, we were out there very publicly

15:05

trying to illustrate the floors of Guantanamo

15:11

and they didn't want that.

15:14

Interviewer

And what were you thinking

15:15

during these two years before you went to Guantanamo?

15:16

Did your thoughts change as to what America was like or?

15:18

-

Well, no. Not a lot.

15:23

I do remember the day we filed the lawsuit February 19th,

15:26

2002

15:30

because I was very stupid and naive.

15:32

I never used to talk to the media really

15:36

and death penalty cases in the old days, it was very rare

15:38

because it normally didn't suit your client's purposes,

15:42

and I never watched television.

15:46

So when we filed the lawsuit in Washington, DC

15:47

there was some media interest and (clears throat)

15:52

so I forget whether it's Fox television or if someone

15:54

like that wanted to interview someone

15:58

and Joe and Mike I think both watch television

16:00

and knew better than they did,

16:03

so they said, "Why don't you do it?"

16:04

"So fine I'll go and do it."

16:06

So I went along to the studio in Washington

16:08

and whoever this chat was, who was interrogating me

16:11

asked me 13 times if I wasn't a traitor to the United

16:14

States and 13 times I gave him the same answer

16:19

which was the people who are traitors to the United States

16:22

are the ones who are abandoning their principles

16:25

and now I think I'm actually standing up for what this

16:28

country is about.

16:30

But it was very hostile and I had an unlisted number

16:31

in your lens because death penalty work wasn't terribly

16:35

popular

16:38

but somehow people found that number

16:40

and I got some fantastic messages that night

16:41

when I got back to Louisiana that night.

16:44

It was in the middle of the night,

16:47

it was like three and four in the morning

16:48

these people calling up saying that I should be strung

16:50

up and have various parts of my body ripped off.

16:53

So it was quite hostile

16:56

and that was,

16:59

I had encountered a certain amount of hostility in some

17:00

of the higher profile capital cases but probably nothing

17:02

quite like that.

17:06

Interviewer

Right. How did you handle that?

17:07

Were you afraid?

17:09

-

No. It's good for fundraising quite frankly.

17:10

I don't really think these nutters are gonna do anything,

17:14

I hope I'm never proven wrong.

17:17

Interviewer

And your spirits were always upbeat

17:20

throughout these two years until you-

17:23

-

Well, I had the better part of the deal actually

17:25

because the way we divided it up was basically this,

17:27

that Joe particularly and CCR were doing the litigation.

17:30

And I've never been that interested in the legal part

17:35

of all of this, arguing about the number of angels who can

17:38

dance on a head of a pin strikes me as the dangerous part

17:41

of the law.

17:45

My role was more going around trying to find clients and so

17:46

back then, let's say you're Yemeni and you've got some

17:51

child or brother or husband in Guantanamo,

17:56

what are you gonna do about it?

18:01

You're probably semi-literate, you live in Yemen,

18:02

the per capita income in Yemen is $330 a year.

18:06

If you wanted to hire an American law firm

18:11

you could pay for one lawyer for 40 minutes

18:13

and you'd have to get in touch with them in the first place

18:17

and then you couldn't eat for the rest of the year.

18:19

So these people were obviously in a position where

18:21

they couldn't possibly find legal representation.

18:23

So because I traveled to Europe a lot and that was at least

18:26

halfway to Yemen and other places

18:30

the way we divided it up was I would go and try to find

18:33

these folk and get authorizations, so I would fly for,

18:37

but the first time I went to Paris, that wasn't so bad.

18:41

That was like Christmas of '02, I think

18:44

and then I started going to other countries.

18:48

So I went to Yemen on an Amnesty International program

18:51

and what we did was I'd show up there and hold a press

18:55

conference, say, "Hi, I'm American,

18:57

I'm here to help you, come to the hotel and we'll represent

18:59

your family member for free."

19:02

And then a whole bunch of people would show up

19:05

and it was great and that was the way,

19:06

before we got into Guantanamo it was the only way to get

19:09

authorizations to represent people.

19:12

Interviewer

And can you give us a sense of how many

19:15

people you had?

19:17

-

Yeah, I mean, I think overall by the time the Supreme

19:20

court ruled in June, 2004 I think I'd rounded up about

19:22

80 authorizations from different places.

19:28

And there were some stories there too, I went to Jordan

19:31

and I was trying,

19:35

I did the same thing, held a press conference

19:37

said the Americans got all these people, we're here to help,

19:39

start getting hostile calls from the secret police.

19:42

And the secret police called up and said,

19:45

"You will report to our headquarters immediately,"

19:47

and I told them to piss off because I was busy.

19:49

And so they called up again started saying all these really

19:52

scandalous things which I'm not gonna repeat about me,

19:54

not surprisingly none of which were true.

19:58

So in the end I went to the secret police headquarters

20:02

and I got a taxi and I said,

20:04

"Take me to the secret police headquarters"

20:06

and the guy went pale.

20:07

And it was only then I started thinking,

20:09

"Oh, this was not such a good thing,"

20:11

and I hadn't done anything about it.

20:14

I hadn't called my office to tell him I was about to go

20:16

to the secret police headquarters or anything like that.

20:18

So on the way I thought I started getting a bit worried,

20:21

and

20:23

I go in there and there's this long corridor

20:25

or long like corridor with black doors leading off.

20:27

And so I go to them, led into this office

20:31

and there these two guys and one's the short guy

20:33

with red hair and the other's this other chap.

20:35

And I say, "Oh, hi, I'm Clive Stafford Smith,"

20:38

and I show him my passport, "Who are you?"

20:41

And they say, "We do not use names in this room,"

20:43

(laughs)

20:46

and I was really quite worried.

20:47

So at that point I fibbed, I'm afraid and I said,

20:48

"Look, I've told the British embassy that if I'm not out

20:50

in an hour they'd come and get me and

20:53

you got to help me.

20:57

Your job is to help me represent your nationals."

20:58

So it all was a bit hostile for a bit but then

21:02

I was being pumped some colonialists

21:05

and they backed down and actually in the end they did

21:09

promise to help and I told them, "I'm gonna identify you,

21:11

I'm gonna take down your description,"

21:14

and sure enough I did actually.

21:16

The guy I was talking to, it a guy called

21:17

Colonel Ali Bujak.

21:19

I found out from a lawyer there in Amman

21:20

who was head of their secret police.

21:23

So those sorts of things happened which was

21:25

a bit worrying.

21:29

Interviewer

Did the CIA or FBI ever contact you during

21:30

those early days?

21:32

-

No. When I had to get my security clearance

21:34

and be interviewed by the FBI, I did of course tell them

21:37

that they asked me, "Have you been in touch with any foreign

21:40

security service?"

21:43

And I said, "A few guys in Jordan

21:44

but then you probably know that better than I do."

21:48

So but no, that was the only contact I had.

21:51

Interviewer

Did they acknowledge that

21:54

they didn't know that?

21:55

-

No.

Interviewer

Could you tell a story,

21:58

how'd you get Saudi clients?

21:59

-

I went off to Yemen, actually I went to Bahrain

22:02

and Bahrain was easy, there were only six Bahraini clients

22:04

and they were very friendly, the whole Bahraini folk.

22:07

But the only way to get, I tried to go to Saudi

22:11

but it was impossible to get in there.

22:14

The Bahrain Human Rights Committee who were helping me there

22:15

were just really great and they,

22:19

we did a thing in the media, Alarabiya or whatever,

22:22

telling people we're here and if you want help come here.

22:26

And so a lot of Saudis families crossed the border

22:29

and came to meet us in Bahrain and then lots of people

22:33

called up from Libya and all sorts of places

22:36

when they saw that on Arabic television.

22:40

Interviewer

And you had the funding to be able to help

22:43

all these?

22:45

-

No, I wasn't. We didn't have any funding.

22:46

It was just on my own time.

22:47

Interviewer

Who did fund you, there was the CCS funding?

22:51

-

No.

22:54

Like when I went to Yemen Amnesty

22:55

I went on an Amnesty thing and they paid for the flight

22:58

but basically we weren't funded to do it.

23:00

And I kept it very separate from my charity in New Orleans

23:03

because I didn't want them getting in trouble.

23:06

Interviewer

And you continued to represent people

23:08

in New Orleans at the same time.

23:10

-

Yeah.

23:12

Interviewer

So could you describe the first time

23:13

you finally got to Guantanamo, what that was like?

23:15

-

Well, that was November, 2004,

23:18

Joe and I went down together

23:20

and I was representing Moazzam Begg and Richard Belmar,

23:22

another Brit and Joe was representing David Hicks,

23:27

and it was just bizarre, I'll never forget.

23:30

I mean, don't get me wrong there's some very nice people

23:34

down there, right and I would never want to tar

23:37

all the military with the same brush.

23:39

There was some of them were just very decent

23:41

and we got great conversations in early days,

23:43

they were very open,

23:45

particularly the escorts and the junior people that talk

23:48

about anything which was fun.

23:50

Later on it became much more adversarial, but

23:52

it was totally an irony free zone Guantanamo Bay was.

23:59

As you get there, of course the slogan that they had

24:03

the motto 'Honor Bound to Defend Freedom'

24:06

well, that's a joke.

24:09

You couldn't really say, it's a bit like

24:11

(mumbles) those people could take offense

24:13

to that if they knew what you're talking about.

24:17

But it was rather similar, I mean, the idea

24:19

that this was to defend freedom and the first thing we did

24:20

was bang everyone up without any freedom was rather rich.

24:23

But I remember

24:26

going into McDonald's, is very nice Colonel

24:29

who was our escort that day and we're going into McDonald's

24:31

and they saluted each other.

24:35

And so as we go on the junior guy salutes the Colonel,

24:36

it says "Honor bounds Sir" and the Colonel salutes back

24:39

and says "To defend freedom soldier," and I laughed

24:42

as one word, I thought it was a joke put on for my benefit,

24:45

but everyone on the base did that back then.

24:48

I mean, they learned that it was just so stupid,

24:51

they stopped doing it after a while,

24:53

but to begin with there all these very odd things like that

24:55

and it was just this goldfish bowl that for two years

24:58

had existed totally outside contact with the real world.

25:01

And so people did things that were just extraordinary

25:07

and it was fascinating.

25:10

I mean, early days the nice guys who showed us around

25:11

would take us on little tours to go see the original camp

25:14

which is now overgrown with vines and things

25:18

and look very airy,

25:21

but then of course you got to go down to

25:23

the real camps

25:25

and there was,

25:28

oh, there was a sign on the way down there

25:30

I'll never forget which was,

25:33

it wasn't principal but it's something like principal

25:37

of the week or whatever of the week and it was compassion

25:40

(laughs) God!

25:44

Here are these guiding and I spent days talking to these

25:45

guys about being beaten up.

25:48

Anyway, and I went in and I saw Moazzam and

25:51

I had thought Joe and I had talked about this,

25:55

we'd done a lot of work with people in prison.

25:57

And some of the guys later were civil lawyers

26:01

and didn't really have the same experience but

26:03

the one thing you never do when you go in to see a client

26:06

who's charged with a crime is you come in and say,

26:09

"Hi, did you do it?"

26:11

And that's the way to lose immediate credibility

26:13

because then you just become another,

26:15

you become part of the process and fulfill everyone's

26:20

stereotype that you are indeed just another interrogator.

26:23

And indeed when lawyers were gonna come down to Guantanamo,

26:26

the interrogators had posed as lawyers and pretended

26:29

they were lawyers, so that was another problem.

26:33

But the other thing you don't do is you don't come in

26:36

and do what so many lawyers did, which was say,

26:39

"Oh, this is an attorney client meeting,

26:42

everything you say to me is confidential."

26:44

I mean, come on. What year were you born.

26:47

The idea they weren't listening in was silly

26:51

and of course they were listening and in fact

26:54

we caught them at it because after that first visit

26:56

they interrogated Joe's client about exactly the things

27:00

that he had just been talking to them about,

27:02

I mean, they weren't very good at it.

27:04

And so it was clear

27:06

that they were listening in and the only way to maintain

27:08

any sense of credibility with your client was to start off

27:13

with that, I always start off with them saying first,

27:16

"I'm American and I'm British,"

27:18

so I get to apologize for everybody.

27:20

And I'm really sorry that not withstanding what you may

27:22

or may not have done that we have thrown away all

27:26

up principles and treated you this way.

27:28

And second,

27:31

that I would always tell them that,

27:33

let's assume everything we're talking about as being

27:36

tape-recorded and I think we were naive not to think so.

27:38

And third, "I'm not in the least bit interested

27:43

in what they say you've done.

27:45

What we're gonna talk about is what they've done to you,

27:47

not what you've done according to them."

27:50

And so I spent the first three days talking

27:53

to Moazzam Begg about how he'd been abused and I gotta say,

27:56

I had no concept really.

28:00

I mean, we had pled, we'd had an argument back in February,

28:02

2002 about what we should plead when we originally sue them,

28:05

should we say they're innocent? We don't know.

28:11

Should we say they've been tortured?

28:14

There were rumors coming out already even at that early date

28:15

that the Americans were abusing prisoners.

28:19

And my strong view actually was that given we were hearing

28:22

this we should say that's what happened on information

28:25

and belief to our clients and let the government disprove

28:28

it if they wanted to,

28:30

they're the ones with control over the information.

28:32

So we did in the end.

28:34

We pled both of the clients were innocent

28:35

and that we thought and that they were being abused.

28:37

And I thought that might be true and we'd see it a proper

28:41

hearing and a proper court

28:45

but I never really understood how true it was

28:48

until much, much later when, three days I spent with Moazzam

28:51

talking about how he'd been tortured,

28:56

writing it all down on my notes.

28:59

And you couldn't take your notes out with you,

29:01

so classified.

29:03

And this is really what Joe was talking about when he said,

29:05

"We've got to open it up," that they would classify

29:08

everything that was embarrassing to them.

29:11

And it was so frustrating,

29:14

you're giving notes to the authorities,

29:16

the authorities would then mail your notes to Washington,

29:19

take like three weeks to get there,

29:22

then you had to go to Washington to this secure facility

29:24

and somewhere in Washington and review the notes

29:28

and then type them up and then get them to declassify stuff,

29:32

ridiculous process.

29:37

And there was nothing in those notes that should have been

29:38

classified, it was all a conflation of national security

29:40

with political embarrassment.

29:44

And what happened was I typed up a 30 page memorandum

29:47

about Moazzam Begg's abuse, they classified every single

29:50

word and they said that,

29:54

I had this argument nice, nice chap,

29:57

he was just following orders,

29:58

it's not like he was evil or anything

30:00

but I had this argument with the guy saying,

30:03

"How can this be classified?"

30:04

And he said that these things, but what I would classify

30:06

as torture reflect the methods and means of interrogation.

30:10

But I said, "Look, there's a whole page on here about

30:14

how you murdered two people,

30:17

that Moazzam witnessed two homicides in Bagram,

30:18

how's that methods and means of interrogation?"

30:22

He said, "Well, yes it is.

30:24

You frighten people into talking

30:25

but some people get killed."

30:28

So then there was a section about the mental illness,

30:29

the mental problems that Moazzam had suffered

30:33

from all this abuse.

30:35

I said, "How has that methods and means of interrogation?"

30:37

He said, "No, no, no, no, that's not,

30:39

that's your client privacy rights."

30:41

But I tell you what we waived the privacy rights.

30:43

No you can't.

30:45

So the 30 pages of this stuff and not one word was allowed

30:46

to come out public.

30:51

The only reason I can talk about it today was,

30:51

I was sitting there very frustrated and annoyed

30:55

and so I thought what can I do?

30:57

And I thought, I'd tell you what.

30:59

So I wrote a letter to Tony Blair, "Dear Tony,

31:01

in re torture and abuse of your British citizens

31:05

by your American allies."

31:08

And then I detailed it for a couple of pages attached

31:10

to that 30 page stuff and at the end I said,

31:12

"Anything that you can't read in this letter has been

31:15

censored by your friends, the Americans because they don't

31:17

want you to see it. Yours, sincerely Clive."

31:19

So they censored everything except for the first line

31:22

and the last line.

31:26

So all it said was in re torture, British people

31:27

and then everything taken out of this has been censored

31:30

by your friends, the Americans.

31:33

And that was lovely exhibit that was then unclassified,

31:34

black, black, black, black, black

31:37

and it just made them look really stupid.

31:39

So at that point they revised the rules a bit,

31:41

I mean, it wasn't just what I was doing,

31:44

other lawyers had similar stuff.

31:46

And so finally they started beginning to let some

31:48

of that stuff out but there's still an awful lot

31:51

that gets censored.

31:54

Interviewer

What did Tony Blair do in response to-

31:55

-

Oh, he didn't do anything.

31:57

Tony Blair was so far up,

31:58

George Bush thought that he wouldn't do anything.

32:01

Interviewer

And what situation was Moazzam

32:06

at the time you interviewed him? We see in isolation?

32:08

-

He was in isolation in Camp Echo

32:10

and all by himself.

32:14

And this thing, I mean the room we're in right now

32:15

is probably

32:19

eight feet by 14 feet,

32:21

Moazzam cell was a bit wider than this,

32:24

about the same length but it was divided down the middle

32:26

with a metal divider.

32:28

And so he would sleep in the bed over there and a guard,

32:31

this was before they had cameras,

32:34

a guard would sit over here watching him 24 hours a day.

32:35

(clears throat) this was as boring and awful for the guards

32:40

as it was for the prisoners in some ways.

32:44

And back then the guards would talk to us and they would

32:46

tell us all how horrible it was

32:49

and along with a bunch of other things.

32:52

Interviewer

Did Moazzam talk to the guard?

32:54

-

Well, he told me this story which there

32:56

was sort of really illustrative and rather sweet.

32:59

One day there was a woman who came in who

33:01

was from Alabama and she was small woman and she was sitting

33:05

there and she's trembling,

33:10

and Moazzam who's just incredibly well-spoken polite guy,

33:12

says to her, "What's wrong? Are you okay?"

33:16

And she does not answer for a bit and then finally she says,

33:19

"Well, is it true?" And he says, "Is what true?"

33:22

And she says, "Is it true that you are Hannibal

33:25

the cannibal Lecter and if I get too close

33:28

to the fence here you'll bite my face."

33:30

And when he stopped laughing, he gave a therapy for three

33:33

weeks and they became friends.

33:38

But what's most important about that story apart

33:39

from its absurdity is that the guards would be given

33:43

this propaganda exercise all the time and first they'd go

33:47

to a place often in Nevada or someplace,

33:51

whether it'd be trained about Guantanamo

33:54

about how dangerous people were,

33:56

how wicked they were and so forth.

33:58

And then when they were dealing with an individual

34:00

they'd get a special little story about how wicked they were

34:01

but what that did was first

34:04

it was meant to divide the guards,

34:08

avoid the Stockholm syndrome and all that sort

34:10

of stuff and divide the guards from the prisoners

34:12

but it created this hostility.

34:14

So the guards would behave badly to the prisoners

34:17

because they were afraid,

34:19

the prisoners would then respond in kind

34:21

and so this hostility would escalate,

34:23

and an awful lot of that happened in Guantanamo.

34:26

On the other hand some of the guards soar through it

34:30

and I would spend a lot of time in the early days telling

34:33

the guards about these guys because I wanted to try

34:35

to reconcile them a bit which of course

34:38

was not the government program.

34:40

Interviewer

So in the early days you were allowed

34:41

to communicate with the guards.

34:44

-

In the early days when we were waiting for our next

34:45

prisoner to come the guard would sit there

34:49

and we'd just chat.

34:52

And I remember so many things, it was actually like one

34:53

guard had a cap and he'd written inside,

34:55

the rim of the cap, "Al-Qaeda are pussies"

35:00

(chuckles) and there's just all these little vignettes

35:02

that you'd come across, but actually you'd talk to him.

35:05

And (clears throat) with a lot of the guards

35:08

they were as misery, they were treated very badly.

35:10

They would be down there for six months or a year,

35:13

they couldn't leave, they had to pay for their own flights

35:15

if they wanted to leave and there's nothing to do

35:18

in Guantanamo.

35:21

And so their life was pretty miserable too.

35:23

And in the early days the guards would open up about this,

35:26

tell us what was going on and there was nothing that they

35:29

said to me that I couldn't talk about,

35:34

so I would publish it because I wanted the truth out there.

35:35

I wrote a whole book about it in the end.

35:39

And I think this is why, this sort of thing was why

35:42

they instituted near rules.

35:46

One of the guards told me that they were told

35:48

that the lawyers are the enemy

35:50

and that was because we were going around saying things.

35:53

I was very flattered when one of the guards years later

35:57

I met afterwards and he'd read my book and he said,

35:59

"You know that's really how it was."

36:03

And I thought it was rather flattered by that,

36:04

I can't believe I have an insight into the reality

36:06

of everything, but

36:09

that was interesting that we were viewed as the enemy

36:12

because I think we were telling it as it was

36:16

and everyone else was forbidden from doing that.

36:18

Interviewer

Were you treated as the enemy?

36:20

-

Yeah.

36:22

Interviewer

How were you treated?

36:23

-

Well, I mean, look, I will say that not withstanding

36:24

the fact that I was taken in by the Jordanian secret police,

36:26

Guantanamo was far more intimidating than that, far more.

36:30

I had a deal with my wife that when I was down there

36:34

if I didn't communicate with her every night

36:38

with either an email or a telephone call where

36:40

I mentioned the name of our dog in it,

36:43

that she was to get Joe and get me out of there

36:46

because that meant that I'd been taken in

36:48

and they threatened to arrest me five times

36:51

for total frivolous nonsense.

36:54

I mean, one time they accused me,

36:57

you remember when there was the three suicides

37:00

in Guantanamo, they came up with this theory that

37:03

I had provoked those, me and Shaker had provoked them

37:06

and they were trying to coerce one of my other clients,

37:11

Mohammed el Gharani into giving them a statement saying

37:13

that I was behind the suicides, the perverse lawyer

37:16

that I was I wanted people to die in Guantanamo

37:19

to make a point.

37:23

I mean the better one, the one that was actually

37:25

rather more fun was the case of the contraband underpants.

37:27

I got this letter from the military accusing me

37:33

and another guy in my office of smuggling under armor

37:38

underpants into Shaker Aamer and Speedo swimming trunks.

37:41

Now let me be quite clear on the record here today

37:46

that anyone who shares Speedo swimming trunks with anyone

37:49

should be locked up,

37:52

I mean, they are the most tasteless Australian things

37:53

but when I got this letter I read it and I thought,

37:56

is it April fool's day? Can this really be serious?

37:58

I mean, first, so what if someone gives Shaker underpants?

38:01

Interviewer

Could you describe what Shaker is?

38:05

-

Shaker is a British resident, he lived in Britain,

38:06

he's married to a British woman, Saudi origin

38:09

in Guantanamo Bay and he was a big spokesman

38:13

because he's very eloquent in English

38:16

and he would speak a lot.

38:19

Shaker is quite hard to shut up in fact

38:21

and so he became the spokesman for the very brief time

38:24

in 2006, when they had a prisoner committee,

38:27

he was the spokesman for that committee.

38:31

So anyway,

38:34

Shaker, they accused me of this thing with the underpants

38:36

and my wife Emily has a very, very wise thing which

38:39

is when she knows I'm very angry at night about something

38:42

like that she unplugs the internet

38:45

so I can't send a letter out that I might later regret.

38:47

So I wrote this scathing letter back to the government

38:50

saying, number one, I don't see what's the problem

38:53

with this but number two, I most certainly didn't do this.

38:57

I do legal briefs, not the other sort of briefs.

39:00

And let's go through this one thing at a time.

39:02

First, the swimming trunks, the only place that Shaker Aamer

39:05

could swim would be his toilet.

39:09

So my legal advice to you and this is all free is that

39:11

if you wanna stop it you just put a sign above the toilet

39:15

saying, "We don't piss in your swimming pool,

39:18

so please don't swim in our toilet."

39:20

And that should take care of that problem.

39:21

Under Aamer underpants, I have no idea what they are

39:23

but I Googled them and discovered you can't spell them,

39:26

but beyond that they're apparently on sale in the next

39:29

and it seems to me that the Sherlock Holmes would realize

39:32

that it was one of your soldiers who gave these things

39:35

to Shaker.

39:38

So I write this long letter and I sent a copy

39:39

to the New York Times and the Washington Post

39:41

both of whom published it the next day

39:43

and the military was furious.

39:47

And so I thought we were onto a good thing here,

39:49

whenever you piss him off at times it is normally good.

39:51

So then I was telling that story at Anita Roddick's funeral

39:55

and this Anita was a supporter of our charity.

40:00

And so then Joe Koray who's Vivian Westwood son

40:03

who runs Azure on provocateur came out with a slinky set

40:07

of orange underwear with the women that said

40:11

'fair trial my ass' across the back and that was the next

40:14

stage and then lush cosmetics did the same

40:17

and it was all fun.

40:20

But the bottom line of that letter was it was threatening me

40:21

with 40 years in prison for espionage, for smuggling

40:24

something in and violation of their rules.

40:29

Now, this is an illustration of how out of touch

40:31

with the real world these people were because obviously

40:33

I didn't do it, obviously someone in the team did it.

40:37

So what if they did it? It was no threat to anybody

40:41

and how dare they suggest that I had anything to do with it.

40:45

Anyway and that was one of the more amusing ones,

40:48

the other ones were not so amusing,

40:51

it was really quite threatening.

40:52

Interviewer

You think they selected you more than other?

41:00

-

Well, in the early days they thought I was a troublemaker

41:05

which I wasn't, I was merely doing my job.

41:07

Fortunately along later came David Reams

41:10

and a few other people who were really rude to him

41:13

'cause some of these big gum time lawyers were used

41:15

to being treated much better,

41:18

I was used to being mistreated.

41:20

You don't get treated terribly well

41:21

in death penalty cases and so I was in

41:24

I always got along quite well with the people

41:28

but I would stand up for the prisoner's rights and sometimes

41:29

that annoyed the more senior people among them.

41:32

But then some of these corporate lawyers really angered

41:37

the guards, so I think at that point I became less

41:40

of a target.

41:43

Interviewer

I had heard stories that sometimes

41:44

you get more trouble detainees that their lives were Jewish

41:46

in that (indistinct)

41:50

-

Well, there was, one of the very difficult things

41:51

was establishing trust with the clients.

41:56

These were people who had been horribly mistreated

41:59

and for years we didn't see them to lead them mistreated

42:04

for almost three years.

42:07

And then all of us doing the cases had to be American,

42:10

you couldn't go if you weren't American.

42:14

So imagine walking in saying, "Hi, I'm an American,

42:16

I'm here to help you," after three years of abuse.

42:19

So it was very, very hard to establish trust

42:22

and some of the lawyers would undercut that trust

42:24

themselves by the things,

42:29

such things as saying, "Did you do it? What did you do?

42:32

This is all privilege, no one's listening," and so forth.

42:35

But far more to the point, there was a very concerted effort

42:39

on the part of the interrogators to undermine

42:42

the trust and confidence in the lawyers

42:45

and some of that began with them the interrogators going

42:48

in and posing as lawyers.

42:51

The interrogators would say,

42:53

"If you have a lawyer you're never gonna get out of here.

42:55

If you've just talked to us we're your ticket out of here."

42:58

And they would point to people who had already gone home

43:02

who hadn't had lawyers, which there were quite a lot.

43:04

I mean, by the time we got in there there had been

43:06

200 people released already,

43:09

but then they did far more insidious things.

43:12

And the Jewish bit happened to a number of us that happened

43:16

to me and I should say I had no idea that my dad was Jewish

43:18

until I was 37

43:23

because Britain is sort of pretty antisemitic

43:26

and no one had thought to tell me.

43:29

And so no one knew that except from me and the people

43:33

I'd tell because I was rather proud of the fact,

43:37

but then I go into see, it was again Shaker

43:41

for some reason.

43:44

And Shaker says to me, "You're Jewish, aren't you?"

43:45

And I said, "Shaker, technically I'm not,

43:48

this is matrilineal but so what?"

43:50

And we had a long conversation and we agreed

43:52

that actually it was good if we were all Semites

43:54

because it was the non Semites we had to worry about.

43:57

But then the next time I went to visit,

44:00

I was visiting a guy from Jordan,

44:03

nice chap who's quite conservative.

44:04

And he's saying, "Oh, Clive, do you know what they're saying

44:07

about you?" And I say, "No," by now I was quite excited

44:09

because when they say this stuff,

44:12

the first person they said it to I think it was Tom Wilner

44:15

and you can imagine how Tom was furious

44:18

that the people down there were saying

44:21

that Jewish lawyers were somehow wicked.

44:22

So Tom had immediately come out and gone to the Washington

44:25

Post and embarrassed them a lot for saying that.

44:29

But so now I was kind of excited,

44:32

if they said something rude about me I want you to know

44:35

what it was because then I'd spread it around the world

44:37

after it had gone through the classification process,

44:41

of course 'cause it's classified that they're telling people

44:44

I'm Jewish.

44:47

Anyway,

44:48

the second one was this guy from Jordan and he says,

44:49

"Do you know what they're saying?"

44:52

"I don't know. No, no, what is it, please tell me."

44:53

He say, "No, it's too embarrassing," and he's going all red.

44:55

And I said, "Please, please tell me what it is."

44:58

And finally he says, "They are saying that Jew Clive

45:01

like to have sex with men."

45:04

(laughs)

45:07

Now, the problem is they're just playing off

45:08

on people's prejudices or perceived prejudices

45:10

and I don't have time and a discussion with the client

45:13

to have a long discussion about how we shouldn't care

45:17

about people's sexuality and so forth.

45:20

So I would have to point to my wedding ring and say

45:22

it's not true which was a shame but it was that sort

45:25

of stuff that they did all the time

45:27

and they had one particular technique that really

45:30

did undermine

45:35

trust and that was this,

45:38

fairly early on in the process I think they must have

45:40

figured out that I was talking to people about how they were

45:43

being abused and that was my interest was then to get

45:46

through the classification process,

45:50

all this evidence of abuse,

45:51

use that to embarrass them and finally get the people

45:54

set free, which was good, it was working very well

45:58

and it worked for me and it worked for Joe

46:00

and a number of people.

46:02

So the interrogators then-

46:05

Interviewer

One second, do you have your eye cell phone?

46:08

Instructor

Yes, I think we just kill that.

46:10

(indistinct)

46:14

Interviewer

Clive, we don't have one, do you?

46:14

-

No.

46:15

Interviewer

Sorry. I didn't realize.

46:17

I'm sorry Clive.

46:20

-

That's all right.

46:21

(indistinct chattering)

46:23

Woman

I was wondering if I should close the window.

46:27

Interviewer

I think it's okay.

46:30

-

Yeah. Please don't close the window

46:33

I'm being interrogated under the hot lights.

46:34

So I can just carry on from where I was.

46:38

What they did with the prisoners was they then

46:41

told the prisoners that actually

46:45

this is all a big scam,

46:49

that when I would ask you as a prisoner

46:51

how it was that you were abused and how terrible it was,

46:54

that then allowed them to work out what the things were

46:57

that you most hated and just do it to you again.

47:01

So one of the prisoners explained this to me at great length

47:04

that we now know this is all, maybe you're not a CIA agent,

47:07

maybe you are but you're certainly being used by them

47:12

because they're listening in and they're working out what

47:15

we've most dislike and then they're doing it to us more.

47:17

So there's this perverse thing,

47:21

it was just, it really was

47:22

so difficult to think of the right word because they

47:26

are so overused like CAFCA esque and all the rest of it.

47:28

Those words were horribly of used in Guantanamo

47:32

because they were so appropriate, but it was just

47:35

horrendous the way that everything was twisted around

47:38

as a big line.

47:42

Interviewer

My understanding

47:45

is that maybe this was even a successful tactic,

47:48

what they were doing when you were portrayed as a CIA

47:51

agent or possibly or that at least they were listening in

47:55

and therefore anything that the detainees said could be used

47:58

against them, if you will

48:02

maybe was even that the government was actually smarter

48:04

than perhaps some people.

48:07

-

Well, I think the government wasn't very smart overall

48:08

because there were so many things they did

48:12

that was so intensely counter productive.

48:13

And what you have to think about ultimately is this,

48:16

what did it all achieve?

48:20

If you

48:22

looked back

48:24

on September the 12th, 2001

48:25

and you looked at all the people in the entire world

48:29

who could possibly be considered sympathizes with "Al-Qaeda"

48:33

whatever that may have been, that would have been,

48:38

you could have written their names on one sheet of paper.

48:40

Whereas by the time the government had done Abu Ghraib

48:43

and Guantanamo Bay, there were thousands of people out there

48:46

who hated America and there was a CIA agent who said in 2004

48:50

that for every prisoner we hold in Guantanamo

48:55

there's 10 people who now want to do us harm.

48:58

Now, I think he underestimated that

49:02

and if you revisit that today, for every prisoner we held

49:05

in Guantanamo there's sadly a hundred or a thousand people

49:09

who want to do as harm.

49:12

So when you look at the machinations

49:13

of the people in Guantanamo you can think,

49:17

"Oh, well that was a clever trick

49:21

and that was a fantastic ploy," but actually all

49:24

of this was catastrophic for the United States.

49:28

And if you had to put a balance, I'd love someone to do

49:31

an effective sociological study one day,

49:35

and to the benefit that came out of Guantanamo Bay against

49:38

the negative impact of it,

49:42

it's quite hard to test the benefit

49:44

because all the evidence's classified.

49:46

I mean, I can't discuss it but I can tell you my impression

49:49

is that virtually nothing of any relevance or any benefit

49:51

ever came out of Guantanamo but what you can measure

49:56

is the negative impact you can look at newspaper articles,

49:59

you can look at sociological surveys and attitudinal surveys

50:02

about America and what you can see quite clearly

50:06

and what could be shown by someone who took the time

50:08

which I never have is the enormous negative impact

50:12

of Guantanamo, the catastrophic impact it had

50:17

on America's reputation which it will take generations

50:20

to repair.

50:23

And so in the balance, it doesn't matter what came out

50:25

that was positive, I doubt that was much at all

50:29

but it doesn't matter what the negative is so vastly

50:32

outweighs the positive that

50:35

all of these little ploys by the people that

50:37

was just bad news.

50:40

Interviewer

I wanna go back to two things

50:43

you said earlier.

50:44

One is you said that you were sitting

50:45

they were listening in which a lot of lawyers believed

50:46

and you said there was some confirmation

50:49

of that because of the questions that were asked afterwards.

50:51

Were you videotaped in the very beginning

50:54

or did that come later to kind of say lawyers

50:56

were videotaped even if they weren't videotaped?

50:58

-

When we first went there were cameras and they gave you

51:03

this little tour and it was just, it was a fast,

51:06

I mean they're very sweet about it,

51:10

I don't mean that they were nasty or anything

51:12

but they were so naive to think that

51:14

I cared or we believed them.

51:17

They take you into the cell where they had a show cell

51:19

and on the bed of the show cell they had the orange uniform,

51:23

a little towel, a bar soap, a game of checkers

51:27

and couple of other toothbrush,

51:34

one of the little mini toothbrush and whatever.

51:35

And they show you, "Oh, these are the comfort items,"

51:37

and then naturally I asked the first question came to mind

51:40

which is, "Who the hell does he play checkers with,

51:42

he's by himself, in the solitary cell?

51:44

Do you play with him?" Oh, no, I wouldn't do that."

51:45

So that was a ridiculous thing,

51:48

but then they would show you the camera

51:49

up in the corner of the room and they would say,

51:51

"That camera is just watching, it doesn't listen in

51:55

and on the wall is this buzzer you can press

51:59

if you need help."

52:02

And when you press the buzzer,

52:02

you can talk into it and then while you're pressing

52:04

they can hear but of course they can't listen into you.

52:08

Well, the very first time that I used the buzzer,

52:13

I press the buzzer, I say, "Hi,

52:17

I need a bottle of water for my client," they talk back.

52:19

I try talking without pressing the buzzer and sure enough

52:23

they hear and they talk back.

52:27

So it's obvious,

52:29

how stupid do you have to be to figure that one out.

52:31

Now, whether they were sitting there listening

52:34

to every word who knows but if I were them

52:36

I would be because their paranoid view of the world

52:38

was that these men were full of intelligence

52:42

they wanted to know.

52:44

And actually the lawyers were quite good at extracting it

52:45

out of them because at least they were somewhat

52:48

more trusted than the interrogators and the lawyers

52:50

didn't beat the hell out of the prisoners

52:54

so the prisoners talked a bit more.

52:56

So one would expect them to tape record it.

52:58

On that first occasion Joe was talking about very specific

53:02

things, we have some experience in this, right?

53:07

I mean, I caught a sheriff in Georgia during this one time

53:09

where my client thought that he was tape recording us.

53:14

So what we did was we tell him this long story

53:17

about where the bodies buried, which we just make up

53:21

and then we go out and film trying to dig it up.

53:23

It's quite easy to set people up on that stuff

53:27

just to check it out, I mean, you hope they're not doing it,

53:29

but if you give them an enticing enough stuff to follow up

53:32

that's false then they always follow it up.

53:36

So it's not hard to check and with Joe that very first time

53:38

there were things that he and Mandu Habib talked

53:42

Oh, David Hicks, I forget who it was talked about

53:47

that immediately the interrogators came in

53:50

and asked questions that could only be a fruit

53:53

of that attorney-client visit.

53:56

That's not surprising, isn't it?

53:59

And I suspect that they're tape recording this right now.

54:02

(laughs)

54:05

I mean, one of the military lawyers told me that

54:06

they hack into my email and everything.

54:10

So I'm not surprised my wife and I had a deal where

54:12

we would periodically send an apologetic message

54:16

to the CIA saying, "We're really sorry for being so boring,

54:19

I hate that you have to read all this drivel."

54:22

Interviewer

How long ago when you told them?

54:24

-

It's about a year ago, two years ago.

54:26

Interviewer

And nothing you'd mentioned the suicides

54:29

and I wanted a little bit more about why they felt

54:32

you participated, but also on those lines recently

54:34

in perhaps six months ago it came at that perhaps

54:37

they were homicides and that suicides,

54:40

is that the same situation?

54:41

-

It's the same three.

54:44

I mean, look, and again,

54:45

I don't know why we keep talking about Shaker because

54:47

I've had like 80 clients down there and there's so many

54:50

different stories but this was related to Shaker again.

54:53

When that happened, it was hugely embarrassing to the U S,

55:00

the three guys had died.

55:04

And because of the paranoid that's on all sides

55:06

in this inevitably people didn't believe the U S,

55:09

you have the U S saying it was suicides

55:13

and it had all this.

55:15

(chuckles)

55:18

There was all this stuff that would go around about

55:19

the dream of the three cows,

55:21

I don't know if you've ever heard that one.

55:23

There was some strange thing and I heard this come full

55:26

circle, I'd discuss it with the client and then ages later

55:29

I'd hear it from the authorities

55:32

about a dream that it would take,

55:35

that three people had to die before

55:38

Guantanamo would be closed down.

55:43

I don't know where that came from

55:46

but I think someone in the authorities thought

55:48

that somehow I'd had something to do with it.

55:50

And I know that they thought that I had put these guys up to

55:54

do committing suicide because the interrogators start trying

56:00

to pressure Mohammed el Gharani who was 14 year old kid

56:04

who they banged up

56:07

who had been taken under the wing of Shaker.

56:08

They tried to pressure him into telling him that I had

56:11

talked about this with Shaker and shaker then instructed

56:15

Mohammed el Gharani to take the message to the other people

56:18

to kill himself.

56:21

I mean, look, first I would never ever do that to any human

56:24

being, but second if I would ever do that under that

56:28

setting,

56:31

but that just showed how desperate they were to point

56:34

the finger of blame at someone else.

56:36

It's patently obvious why people were suicidal

56:38

if indeed they were suicidal in Guantanamo Bay

56:41

and that's because of the treatment they got

56:44

but instead they always had to blame the lawyers

56:46

or somebody.

56:49

Now, the question about whether it's suicide or not,

56:50

I don't know the ultimate conclusion but I'll tell you this.

56:54

There was a theory out there that

56:58

it had to be homicide because

57:01

I am Zachary Katz Nelson in our office had taken a statement

57:04

from Shaker about his abuse

57:08

and his abuse were detailed very much in an affidavit about

57:10

exactly what he'd told us.

57:14

And the autopsy reports on the three men showed injuries

57:16

to those three men that matched the abuse that Shaker

57:21

had suffered.

57:24

So someone put two and two together and made probably five

57:25

by saying, therefore the abuse that they were all undergoing

57:29

resulted in the deaths of those three people.

57:32

My own opinion, I don't think they were murdered

57:35

and not directly at least because it just seems so unlikely

57:39

to me that three people died simultaneously

57:42

even if they were being abused.

57:45

But what seems patently clear to me is that those three guys

57:47

committed suicide because they'd so given up the will

57:50

to live as a result of the suffering they were going

57:54

through at the same time Shaker was going through,

57:57

that if they did commit suicide they did it because

58:00

of the abuse they were going through and perhaps because

58:04

of some of these wacko things like the dream that everyone

58:06

was talking about.

58:09

So that's my uneducated opinion

58:11

that I didn't really believe in conspiracy theories by

58:14

and large, much as there were a few conspiracies going on.

58:17

Interviewer

And do you think they were selectively

58:20

picking on you if you were five times accused of various?

58:23

-

Well, they picked on me more than those people,

58:26

more than anyone probably, but that's I think because

58:28

I was there, I spent nine months in Guantanamo.

58:30

I went there 23 times,

58:33

I spent more time than anyone else there

58:35

and I had many more clients.

58:38

Look,

58:41

law firms with 10 lawyers might have half a dozen

58:42

clients, Reprieve with two lawyers going there had 80.

58:46

I should say we did a bad job,

58:53

we didn't have the resources to do that properly

58:55

and thank goodness the law firms had more resources,

58:57

but there was just a desperation where

59:00

we didn't have enough lawyers.

59:02

So we just were involved much more deeply

59:05

and I think that's why I and some other,

59:07

maybe Joe in the early days were viewed as problems.

59:10

But as I mentioned, I'm glad to say that some

59:15

of the other lawyers took the heat office

59:18

when started behaving very aggressively.

59:20

Interviewer

One of the things that we found

59:25

in interviewing former detainees is that the people who were

59:26

more resistant sometimes benefited from that psychologically

59:30

at the end, perhaps they didn't physically.

59:34

And when did, if you had any thoughts about people you saw

59:37

existed and the impact that it had on their lives?

59:40

-

Well, it's difficult because there are many sides to this.

59:43

I mean, you may be thinking for example

59:47

about some prisoners where it's true,

59:50

someone like Omar Diguys who was so angry all the time

59:52

in Guantanamo and he was so confrontational

59:57

and I would see him all the time.

1:00:00

And Omar was tremendously helpful to me

1:00:01

because he had trained in the Lore and Britain and he had

1:00:03

a much better concept of the law, but nonetheless

1:00:06

Omar was very paranoid.

1:00:09

And at one point he wouldn't meet with me because

1:00:11

he was convinced I was part of the enemy

1:00:15

or part of the problem.

1:00:18

But Omar came out in some ways better off

1:00:21

perhaps because he had loosed a lot of his anger

1:00:24

while he was in there,

1:00:27

so when he came out he didn't feel the need to

1:00:29

but you've got to see what the cost was.

1:00:31

I mean, he was blinded in one eye when he was beaten up

1:00:33

by the ERF team down there,

1:00:35

so there was a cost to him and there was a cost

1:00:38

to everybody.

1:00:40

Samuel Lithy ended up being paralyzed

1:00:41

but he was taken to hospital for something he didn't wanna

1:00:47

go to hospital and none of the prisoners

1:00:49

thought that they were gonna be properly treated there,

1:00:53

they were terrified of going to hospital

1:00:55

because so many people had amputations and so forth

1:00:57

against their will and they didn't want it.

1:01:02

So Sammy didn't want to go to the hospital,

1:01:04

they took him to hospital for some relatively minor thing,

1:01:06

beat the hell out of him there and paralyzed him

1:01:09

and he was in a wheelchair.

1:01:12

Far more severe I think are the psychological injuries

1:01:15

that people suffered in some ways from that confrontation

1:01:19

sometimes.

1:01:23

There's one person I'm thinking of who is just psychotic

1:01:25

because he's been put through so much.

1:01:28

So it may be that with some people,

1:01:31

if they were confrontational to a certain degree

1:01:35

perhaps that helped them deal with it

1:01:38

in much the same way as resisting any indoctrination process

1:01:44

can help.

1:01:48

But overall, I think those prisoners suffered more

1:01:49

in other ways and then there were people who tried very hard

1:01:52

to be non-confrontational

1:01:56

and a classic example of that would be Samuel Hodge

1:01:58

who was my client who is an Al Jazeera journalist.

1:02:03

Sammy's just the nicest guy in the world

1:02:07

and the guards loved him, he was always nice to him.

1:02:08

He referred to them as the fifth column because they would

1:02:11

tell him everything and indeed when I would go see him far

1:02:15

from taking them news of the outside world

1:02:19

he'd tell me about the stock markets and all these things

1:02:21

I'm totally uninterested in,

1:02:23

that he'd got out of the guards

1:02:25

and he told me, he gave me a complete list of every single

1:02:28

prisoner in Guantanamo Bay with their names,

1:02:31

their ISN numbers that he had made up from,

1:02:34

he's a journalist and that was his job was collecting

1:02:38

information and that was the first time I had a complete

1:02:40

list of the prisoners which was hugely helpful.

1:02:43

That again was classified,

1:02:46

I had to take it through the classification process

1:02:47

but at least we had it so we could figure out

1:02:51

in the secure facility who was who.

1:02:55

But Sammy eventually after all that time

1:02:59

went on hunger strike and he became totally paranoid

1:03:04

about things

1:03:08

because they were abusing him so bad.

1:03:12

The hunger strike was a really awful aspect

1:03:13

of the prison because,

1:03:15

the first issue was whether they're gonna force feed folk.

1:03:19

Now, that's unethical if a competent hunger strike,

1:03:23

it goes on hunger strike, the Tokyo Declaration says

1:03:26

you can't do that but the U S just ignored that and force

1:03:30

fed them.

1:03:32

But to begin with, they force fed them as best they could

1:03:33

by putting a tube up their nose and leaving the tube

1:03:36

there and just force feeding them twice a day and so forth

1:03:38

and it was no more painful and it had to be.

1:03:42

But then they started making it gratuitously painful

1:03:46

and I will never forget General Cratique

1:03:49

went in the New York Times and said publicly boasted

1:03:53

effectively that we're gonna make it "Inconvenient"

1:03:57

for these prisoners to go on hunger strike

1:04:01

and what they did to make it inconvenient was they pulled

1:04:02

the tube out every time they fed them.

1:04:06

So there's this 110 centimeter tube had force up your nose,

1:04:08

forced the food into you, and then pull it out again,

1:04:13

excruciatingly painful and they'd do that twice a day

1:04:16

every day and they did this to try to coerce people to stop

1:04:19

the hunger strikes.

1:04:24

Well, Sammy went through that for a year

1:04:25

and it was excruciating and well,

1:04:28

he was never confrontational,

1:04:31

he was abused in a way that can only be considered

1:04:33

a gratuitous torture and that's had a major, major impact

1:04:36

on him in the long term.

1:04:41

I mean, he does better than some prisoners coming out

1:04:44

of Guantanamo because he has a job,

1:04:47

we works with Al Jazeera, but it's been very hard on him.

1:04:48

(coughs)

1:04:52

Interviewer

Being compliant didn't necessarily

1:04:53

protect you or make your life a little easier in Guantanamo

1:04:56

(indistinct)

1:05:00

-

Being compliant didn't necessarily help

1:05:01

and there was another big problem and this is a problem

1:05:04

I've encountered in death penalty cases

1:05:07

which is if you're totally innocent.

1:05:09

Now, when I first went down there in '04

1:05:12

I thought I was gonna have a lot of explaining to do

1:05:15

for some of these prisoners that,

1:05:18

Rumsfeld had said they were all captured on the battlefield

1:05:20

and who was I to know differently,

1:05:26

I'd never been to Afghanistan.

1:05:28

So I assumed that the U S would get it wrong sometimes

1:05:30

because we all get things wrong but I assumed totally

1:05:34

wrongly that the vast majority of them would indeed

1:05:38

have been on the battlefield captured during the fighting

1:05:41

and so forth.

1:05:44

Actually, when you go down there it's just not true.

1:05:45

And I had a devil of a time finding anyone who'd been

1:05:48

on the battlefield.

1:05:52

More than half of the prisoners and this is now corroborated

1:05:54

by President Musharraf of all people who wrote a book

1:05:58

which I do advise you not to read,

1:06:02

it's a very boring book called "In the line of far."

1:06:03

And in that book he boasts about how 369, I believe

1:06:07

the number of the prisoners in Guantanamo had been sold

1:06:11

to the Americans by the Pakistanis.

1:06:15

And he then goes on to say, and they paid us bounties

1:06:18

of millions of dollars to us in the government.

1:06:21

Now the Americans didn't contest that they paid

1:06:24

the bounties, they were very angry that he'd said it

1:06:26

went to the government because it was meant to go to private

1:06:28

individuals and this showed government corruption.

1:06:30

So Musharraf changed his tune a little bit

1:06:33

but the bottom line was at least 50% of the prisoners

1:06:35

in Guantanamo had been sold to the Americans from Pakistan,

1:06:38

not from Afghanistan and a number of the people

1:06:41

I represented a significant number

1:06:44

never been to Afghanistan.

1:06:46

Mohammed el Gharani, this 14 year old kid

1:06:48

was a good example,

1:06:50

and this is how it worked basically and it's actually very

1:06:53

similar in some ways, again to death penalty work

1:06:55

except it's catastrophically worse.

1:06:58

In a capital case you're a very unpopular person

1:07:02

in a high profile crime just like this whole process,

1:07:05

always their informants and the informant's snitching

1:07:09

on you because they can get a benefit from themselves.

1:07:13

Then you have police who believe you're guilty

1:07:16

and may apply a little bit of pressure to get in and make

1:07:18

a statement or make one up and then you have a not terribly

1:07:20

effective judicial system but it's rubbish lawyers who go

1:07:24

to sleep during your capital trial and so forth.

1:07:27

And this is far worse,

1:07:31

the Americans admitted and in fact they publicly stated

1:07:33

in the end that they were offering $5,000

1:07:36

for any foreign Taliban who was turned over to them

1:07:39

in Pakistan, Afghanistan.

1:07:42

$5,000 in that part of the world would translate

1:07:44

to us as Americans or Europeans is about a quarter

1:07:46

of a million in terms of our income.

1:07:50

So if I ask you

1:07:53

to tell me that your two colleagues in this room were

1:07:56

in Tora Bora in October, 2001

1:08:01

and I'm gonna pay you half a million dollars to snitch

1:08:05

on these two, you'd do it, right?

1:08:09

That you'd do it for $50 probably.

1:08:11

The problem there was this, that once someone turned you

1:08:14

in as an informant in Pakistan and said you were doing

1:08:17

this and that in Afghanistan,

1:08:20

then you're in my detention, I start abusing you.

1:08:23

To begin with you say, "I'm innocent,"

1:08:27

it doesn't take long if this abuse for you to say,

1:08:29

"All right, I was in Tora Bora."

1:08:31

That gets you a one-way ticket to Guantanamo where you don't

1:08:33

have a lawyer and there's no way to prove you're innocent.

1:08:35

The number of innocent people in Guantanamo,

1:08:38

and Guantanamo interestingly as a sociological experiment

1:08:41

because what we've seen is this,

1:08:44

if I can bore you with the figures for a minute,

1:08:46

roughly 780 people there altogether, right over the years.

1:08:49

Of those before we ever got into a court of law

1:08:54

effectively 500 had been freed because the U S said

1:08:57

they weren't any threat to anybody.

1:09:00

So 500 are gone, we're now down to about 280,

1:09:02

those 280 and not the worst of the worst because that's

1:09:06

everybody in Guantanamo, these are now distillation

1:09:09

and according to Rumsfeld they are now the worst

1:09:13

of the worst of the worst.

1:09:15

Of those 280 we begin to get into court with them

1:09:17

and we begin to have hearings in front of a federal judge

1:09:21

starting after

1:09:24

Remedian and the other cases

1:09:26

and 2008

1:09:29

to 2009.

1:09:32

Of those cases so far as we sit here today in August, 2010

1:09:35

we've got about, I think most of the exact numbers

1:09:42

probably 44, I think have gone through the complete process.

1:09:45

There have been a burden of proof on the government

1:09:48

that's very light, it's not beyond a reasonable doubt,

1:09:51

it's just a preponderance of the evidence,

1:09:53

they're allowed to use secret evidence

1:09:55

that our clients can't even know about,

1:09:57

they're allowed to use hearsay evidence,

1:09:59

our clients aren't allowed to know who the informants

1:10:02

are against them.

1:10:04

All of those rules that make our lives very, very difficult

1:10:05

in front of judges who are not liberal by any means,

1:10:08

we have won 74% of those cases where our clients have been

1:10:12

acquitted of any wrongdoing.

1:10:16

So if the worst of the worst of the worst

1:10:19

they've still got it wrong three times out of four.

1:10:21

If you toss a coin you'll more likely to get the right

1:10:23

answer than you are if you're Donald Rumsfeld

1:10:26

and you put someone in Guantanamo Bay

1:10:28

and that's pretty shocking, isn't it really?

1:10:31

So the problem for us with these prisoners was not just

1:10:34

that they'd been abused and everything, but so many

1:10:39

of them were utterly unalterably innocent of anything

1:10:41

and yet they'd been held for six, seven, eight years

1:10:44

without charges and without being able to see their families

1:10:48

and is far worse, the conditions of prison in Guantanamo Bay

1:10:52

were far worse than any death row I've ever visited

1:10:55

and I've been to many, many death rows around the country,

1:10:58

and what do you expect?

1:11:03

It just meant that so many people crumbled really.

1:11:04

Interviewer

I wanna go back to what you just said

1:11:09

but before I do,

1:11:10

you said earlier back going to the medical facilities

1:11:12

in the clinic, do you know any stories of the doctors

1:11:15

interacting with the clients then?

1:11:19

-

There are so many stories about the doctors.

1:11:23

Look again there were some doctors who tried to do the best

1:11:25

they could and in fact, I had very early contact with some

1:11:27

who I never quite understood how they could speak so freely

1:11:33

but they did go around speaking very freely

1:11:37

about their experiences and they were not happy

1:11:39

with the way things were going on in Guantanamo.

1:11:42

So by no means all the doctors,

1:11:44

where Dr. Mengele or whatever like that,

1:11:47

but there were one or two of them who were real problems.

1:11:51

And one guy who was still going after their

1:11:53

license at the moment,

1:11:57

particularly these doctors who supervise the force feeding.

1:12:00

I mean, with the treatment of prisoners in the hospital

1:12:04

and I wasn't there I can't tell you exactly

1:12:08

who's right and who's wrong,

1:12:11

all I can tell you is an awful lot of prisoners lost thems

1:12:12

and this, that, and the other, and the prisoners hated it

1:12:15

and didn't trust them for a second.

1:12:18

But what I can tell you with absolute certainty is that

1:12:20

there was one particular doctor who was the architect

1:12:24

of this force-feeding process and who defended it publicly

1:12:28

and was the one who wanted to do it.

1:12:33

And there were two doctors at the time that this began

1:12:36

and one of them refused to do it saying it's unethical

1:12:38

and the other one did it saying

1:12:41

there's nothing wrong with it.

1:12:44

Now, that doctor and the people they called the biscuit,

1:12:45

the behavioral sciences, something or other

1:12:50

who were part of the interrogation process and were there

1:12:53

to help the interrogators break the prisoners down

1:12:57

by identifying their weaknesses and so forth.

1:13:01

What those people were doing was just criminal and there's

1:13:03

no two words for it

1:13:05

and I'm not one who believes in prosecuting these people,

1:13:08

I don't but I think the truth needs to come out to make sure

1:13:13

no one does this again.

1:13:16

Interviewer

Do you think the psychologists would

1:13:18

particularly the way you're describing it,

1:13:20

particularly at fault here?

1:13:23

-

Well, I think there's this bizarre human thing

1:13:25

and let's face it.

1:13:27

Anyone who says that you weren't do what you're told when

1:13:29

instructed by a higher authority and that somehow we would

1:13:34

resist that, it was just delusional.

1:13:38

You remember all the Milgram experiments and so forth

1:13:40

where people were taken off the streets and 80% of them

1:13:44

would crank the electricity up until it killed people

1:13:48

just because they were being told by gun and white coat.

1:13:50

The problem in the military is you have something much

1:13:53

stronger, you have a hierarchical system where you have

1:13:55

to follow orders and if you don't

1:13:59

you get that's a criminal offense.

1:14:02

In fact, I had an experience of that in Binyam Mohamed's

1:14:03

case I'll tell you about.

1:14:06

So these people are actually in a far worse position

1:14:09

than all those folk and the experiments

1:14:12

because they're being instructed to do things.

1:14:15

So I'm loath to say that they're all wicked and evil really

1:14:17

not withstanding the fact that I throw around names like

1:14:21

Dr. Mengele, but that's just to be provocative.

1:14:24

And truth, they get into this gold fish ball of Guantanamo

1:14:28

Bay and they didn't see the rest of the world,

1:14:33

they lose sight of the morals and the whole process.

1:14:36

And I think it must have been fascinating for them

1:14:39

to basically experiment on these human beings and to try

1:14:43

to work out what it was that was gonna break them,

1:14:47

doing it all with the presumption that these are guilty

1:14:50

people who wanted to destroy America.

1:14:52

I mean, one of the intriguing things about this process

1:14:54

is this presumption of guilt where everyone thought

1:14:58

that the prisoners were all wicked.

1:15:01

So they're doing it from the motive that must've seemed

1:15:03

to them quite pure, whether they were totally delusional

1:15:06

by and large and doing things that actually in the cold

1:15:10

light of day when you look at them outside the little world

1:15:13

of Guantanamo Bay, just terrific.

1:15:17

Interviewer

When you had conversations with him

1:15:22

did you ever try to bring a larger picture?

1:15:24

-

Well, I never had conversations with the psychologists

1:15:28

or the doctors 'cause they wouldn't talk to us.

1:15:31

Interviewer

Only the guards?

1:15:33

-

Only the guards and they were always,

1:15:35

I tried for example to set up a way of

1:15:37

acting as intermediary between some of the prisoners

1:15:42

and the hierarchy of the prison,

1:15:45

so I would constantly write to the general or Admiral

1:15:48

in charge offering to help them 'cause it didn't serve

1:15:51

anyone's purposes to be going through this abuse,

1:15:54

but they never even replied.

1:15:57

I mean there was no way they viewed us so much as the enemy,

1:15:59

there was no way they were going to engage.

1:16:02

Interviewer

Could you tell the story

1:16:05

about Binyam that you've wanted to tell.

1:16:06

-

It was Binyam's case.

1:16:08

Interviewer

You can tell us who Binyam is.

1:16:11

-

Binyam Mohamed was

1:16:13

a British resident who I met for the first time in

1:16:15

April, '05.

1:16:21

He had only got to Guantanamo in September, '04

1:16:23

and he had been seized in Pakistan like so many people,

1:16:26

he had been rendered, the U S got it into the tiny little

1:16:30

mines that he was behind some

1:16:34

nuclear bomb plot for New York.

1:16:37

I mean, that's a long, long story fascinating

1:16:39

and actually reconstructing,

1:16:41

it was so interesting over the years, it took me a long time

1:16:43

as to where they could possibly have come up with this.

1:16:46

But they rendered him from Pakistan to Morocco

1:16:49

where he was tortured for 18 months,

1:16:52

they then rendered him to Afghanistan, to the dark prison

1:16:55

for five more months, spent a little time in background,

1:16:58

then September, '04 went to Guantanamo.

1:17:01

I met him in April '05 I think for the first time.

1:17:04

I spent three days talking to him,

1:17:08

I never ever occurred to me

1:17:11

when I went to law school at Columbia and the sort of nice

1:17:15

little hallowed halls of Columbia Law School in New York,

1:17:18

never ever occurred to me that one day I would sit

1:17:21

across the table from a guy for three days

1:17:24

and talk about how he'd been tortured by the Americans.

1:17:26

I mean, absolutely beyond my credence

1:17:30

and the things that have been done to him partly

1:17:34

by the proxies in Morocco or the two razorblades to his

1:17:36

penis and so forth and partly by the Americans themselves

1:17:40

particularly in the dark prison, just beyond belief.

1:17:44

But the story I was gonna tell was he was out for a military

1:17:48

commission and I was representing him along

1:17:51

with Yvonne Bradley and Joe Margulies, Joe was helping us

1:17:55

too and Yvonne Bradley was an air force major

1:17:58

and she's a Republican African-American Christian

1:18:02

who had got into this because she'd got into it.

1:18:06

She told me the first time she met Binyam

1:18:10

she was terrified of him and that she really thought

1:18:12

he was a wicked evil terrorist.

1:18:15

And within about an hour totally been disabused of that,

1:18:18

she came to really like Binyam.

1:18:22

Interviewer

Was she a JAG or was she a reservist?

1:18:26

-

No, she was JAG but I mean, she was a reservist.

1:18:28

She had,

1:18:34

it totally changed her life and her outlook on the world

1:18:35

and it came to where I had to hold it back.

1:18:40

I mean, there was times when she was so gung to charge

1:18:42

forward on the case that I had to hold it back

1:18:47

and the story I wanna tell you is about that

1:18:49

because it illustrates the process.

1:18:50

We were in court,

1:18:53

the kangaroo court of Guantanamo Bay,

1:18:55

Binyam and I had a slogan 'better a kangaroo court

1:18:58

the no court at all,' but it was definitely a kangaroo

1:19:01

court and there was fun.

1:19:04

I mean, what I really enjoyed about that was this

1:19:05

the whole legal system was set up on April the 30th, 2003

1:19:08

by Cheney and all his mates.

1:19:13

And what they did was they took the U S system and

1:19:16

they took all the things that it always irritated them a bit

1:19:20

about it, like a few of those legal rights for prisoners

1:19:23

and then you just got rid of them.

1:19:26

And then they created the law, they created all the crimes

1:19:28

ex post facto on that day,

1:19:32

every single crime was a death penalty offense.

1:19:34

So "aiding the enemy" was the death penalty offense.

1:19:37

Well, you think about it, that means you shoot everyone

1:19:40

in the German army in World War II and everyone who worked

1:19:42

in Germany in World War II aided the enemy.

1:19:45

So you kill them all.

1:19:47

Anyway, the whole thing was a false

1:19:49

but what Br'er Rabbit teaches you if you remember your

1:19:51

Br'er Rabbit stories is that that's a Br'er patch you really

1:19:55

wanna be thrown in because it's so much fun.

1:19:59

I mean, look, the U S setup its legal system 1789

1:20:02

effectively with a bill of rights

1:20:05

and we've debated for the last 221 years

1:20:07

how to get it right and we still get them or invest 50%

1:20:11

of the time and that's after 221 years.

1:20:14

And the notion that they can create out of whole cloth

1:20:17

this ridiculous military commission process

1:20:20

and not just make this as fulfilled day for me to entertain

1:20:23

myself is just silly.

1:20:26

So anyway, I was enjoying the military commissions

1:20:28

because there was not one aspect of them that you couldn't

1:20:31

challenge and have a lot of fun doing.

1:20:34

But this didn't go down very well with Colonel Coleman

1:20:37

who was the judge and the first thing that we decided

1:20:40

we'd have a go it was him because it seemed very clear

1:20:44

to me that he'd been handpicked and he should

1:20:48

be disqualified for various statements.

1:20:50

He had actually given a little seminar

1:20:52

for his daughter's school where they'd talk

1:20:55

about about Binyam's case as to whether it was okay

1:20:58

to torture people.

1:21:00

So he was history under any sensible process

1:21:02

and what's more, there was a real conflict

1:21:06

in Yvonne's situation because

1:21:09

the boss in her office was military superior

1:21:13

and he was the boss and every case, every conflict case.

1:21:17

So it was all conflicted, huge problems

1:21:20

so we were just challenging these things

1:21:22

and this didn't make Colonel Coleman happy.

1:21:24

So we'd got 20 law professors to say that ethically

1:21:27

she couldn't proceed because our strategy was always

1:21:31

to find a different forum.

1:21:35

I mean, if you're in a kangaroo court

1:21:36

you've got to find a real court.

1:21:38

So you've gotta try to take it away from Guantanamo Bay

1:21:39

and put it in an article three court or a court of some

1:21:42

sort and our first plan was to put it in the ethics

1:21:45

committee of the Pennsylvania bar which was Yvonne's bar

1:21:48

who told her she couldn't proceed under these circumstances

1:21:53

because it was unethical.

1:21:56

So you had pitted judge Coleman on one side

1:21:57

and the Pennsylvania bar on the other side

1:22:00

and Yvonne was not to go forward because it was gonna

1:22:02

be unethical.

1:22:05

Well, this didn't sit well with Colonel Coleman.

1:22:06

So he tried bullying me and Joe

1:22:10

but he couldn't because we're not military

1:22:12

and we just politely tell him to buzz off.

1:22:14

So he turns to Yvonne and he starts lecturing her about

1:22:18

how he's a Colonel, she's a Major, he's gonna give her

1:22:23

an order and the penalty for disobeying an order is criminal

1:22:27

offense.

1:22:30

You get cashiered, you get put in prison, you lose your,

1:22:32

you're kicked out of the military and so forth.

1:22:37

Now, that's a heavy, heavy burden and heavy, heavy threat

1:22:39

on a lawyer to personally try to force them to do the wrong

1:22:43

thing.

1:22:46

So he was threatening her and he then gets to the end

1:22:47

of his little tirade and says, "Are you gonna follow

1:22:50

the order that I'm about to give you?"

1:22:53

And so Yvonne was about to say no (laughs)

1:22:56

and I folded down, I said, "No, no, no Major Bradley,

1:22:59

is not gonna answer that question, judge.

1:23:02

She's asserting right under the fifth amendment

1:23:04

not to incriminate herself.

1:23:06

Then he got really angry and told me to sit down.

1:23:09

So then he asked her again and she says,

1:23:12

"I'm taking the fifth amendment," and that got really ugly.

1:23:14

And at that point there was a soldier came into

1:23:17

the courtroom and passes a little yellow sticky tab

1:23:21

to judge Coleman, and he looks at it and he says,

1:23:23

"We're gonna take a 10 minute recess."

1:23:27

And so of course I was really curious about what that sticky

1:23:30

tab was, we were just at the moment where Yvonne

1:23:33

was gonna get thrown in jail and that was gonna make them

1:23:35

look hard and you could throw all of us in jail too

1:23:38

and it would be great.

1:23:40

And so anyway, I'm talking to the guards in there were

1:23:43

always very friendly,

1:23:46

but then limits and so one of them told me

1:23:49

that the Pentagon was monitoring the trial in real time,

1:23:51

they were watching it and they had sent a message

1:23:56

to Coleman to back off because he was in front

1:23:58

of all the media and he was about to look really bad

1:24:01

when he banged up the defense lawyers

1:24:04

for following their ethical rules.

1:24:05

So it was an hour later when he'd calmed down,

1:24:08

he came back in all then,

1:24:11

peace and harmony and said, "We're fine,

1:24:14

we're gonna have a hearing on this,

1:24:18

don't worry or whatever."

1:24:19

And that was the sort of way these worked but I mean,

1:24:20

what it illustrated Yvonne was tremendously courageous

1:24:23

under those circumstances, there was much more

1:24:26

on the line for her than there ever was for me.

1:24:28

And she stood up for her principles far more

1:24:32

than so many people did.

1:24:37

So yes, don't worry.

1:24:38

So anyway, that was just one of many examples.

1:24:42

Interviewer

Well, it sounds to me like the brave lawyers

1:24:47

you could be really proud of them,

1:24:49

like are you saying that overall the lawyers who represented

1:24:51

detainees were people

1:24:54

who were unique to our culture perhaps?

1:24:58

-

I don't think unique, I think that the best tradition

1:25:00

of our culture and of course there were very different

1:25:02

lawyers involved.

1:25:06

You look at the military lawyers

1:25:06

there were some of them who were wonderful,

1:25:08

I mean they were everything that the military should

1:25:10

be proud of about America that even though Yvonne,

1:25:13

for example was sworn to be a military officer,

1:25:18

her commander in chief was George Bush,

1:25:22

she'd been told by her commander in chief that these guys

1:25:25

were the enemy.

1:25:28

She was still willing to put her entire career on the line

1:25:29

to seek justice.

1:25:32

Now that was fantastic and that was true of various other

1:25:34

people, Charlie Swift and Maury, there was some very,

1:25:37

very good lawyers involved on that side.

1:25:39

And I will say in all honesty, both Joe and I

1:25:43

but I can speak most for myself had real prejudices about

1:25:47

those guys in the beginning, we didn't think for one second

1:25:50

these guys were gonna be real defense lawyers

1:25:52

and we were proven absolutely wrong

1:25:55

and I owe them an apology for my prejudice.

1:25:57

Now, the problem of this was that that worked for a while

1:26:00

and gradually the hierarchy saw that they'd made a big

1:26:04

mistake having all of these very enlightened

1:26:08

and courageous lawyers and so all of those lawyers

1:26:13

got boot over the years.

1:26:16

And I'm not gonna say that the military lawyers today

1:26:18

are all useless, they're not,

1:26:20

but it's a very different culture now because there's been

1:26:22

a lot of pressure from on high to not rock the boat

1:26:26

the way those things happen

1:26:29

and that's difficult.

1:26:33

I mean, there are still people who try to do the right thing

1:26:33

but it's not nearly the same as it was three years ago.

1:26:36

Interviewer

So the way you're describing it sounds

1:26:40

like Guantanamo at the very beginning early on is you said

1:26:42

it was pretty much just a patch, quilt

1:26:45

a seat by your pants operation

1:26:48

and then became someone was sophisticated

1:26:50

and organized over time.

1:26:54

-

Well, it became more organized.

1:26:55

I think it became worse in some ways

1:26:57

and this was all coming from the people on the high

1:27:01

who didn't know what was going on really.

1:27:04

Interviewer

What was going on in Guantanamo?

1:27:07

-

In Guantanamo and on the ground.

1:27:08

I mean, even the senior offices,

1:27:10

this is classic of major corporations, major everything.

1:27:11

Major law firms very often is the more senior people

1:27:16

are the less they are really in touch with what's going on

1:27:21

and they lose perspective.

1:27:24

They think they have a grand strategy

1:27:25

but actually their strategy is catastrophic.

1:27:26

So when people were decent,

1:27:29

even though there were some embarrassing truths that came

1:27:32

out about Guantanamo,

1:27:35

overall we were never gonna do something to embarrass

1:27:37

the individuals who were behaving well

1:27:41

because they were doing the right thing.

1:27:44

But as the powers that be insisted on greater confrontation

1:27:46

then naturally we end up being more confrontational

1:27:51

and I think in a way that's worse for everybody.

1:27:54

It certainly means, I mean you take Colonel Bumgarner

1:27:57

for example, who was the head of the prison aspect

1:28:00

of Guantanamo for a while and I never got to meet him

1:28:04

in person although I did correspond to them some

1:28:08

and I've had a lot of indirect contact with them.

1:28:11

Now, he was very much military officer but he'd run a prison

1:28:15

before and he recognized that in order to run a prison

1:28:18

you can't just mistreat people,

1:28:21

you've got to treat them as human beings and the more you

1:28:23

give them the more you can take away from them

1:28:25

if they misbehave,

1:28:28

whereas if you give them nothing they got nothing to lose.

1:28:29

And so he tried to institute new rules

1:28:32

but the problem was from the very beginning at Guantanamo

1:28:35

the White House had made it clear that the people in charge

1:28:38

for the interrogators, not the people running the prison

1:28:41

and the interrogators hated Bumgarner with a passion.

1:28:44

I heard this in Guantanamo because he had undercut their

1:28:47

ability to offer benefits and take away benefits

1:28:52

from prisoners because he was doing it as part of his job

1:28:56

to run the prison.

1:28:59

And this is what sets Guantanamo apart from every other

1:29:00

prison I've ever dealt with is that instead of the being one

1:29:03

hierarchy and it just being a matter of how do we make

1:29:07

this prison run well, there were two hierarchies

1:29:10

and it's a matter of how do we make the prison run well

1:29:13

from Colonel Bumgarner's perspective and how do we abuse

1:29:15

and extract information from prisoners from

1:29:18

the interrogator's perspective,

1:29:20

the interrogator is actually being superior to Bumgarner.

1:29:22

They hated each other for a while

1:29:26

and Bumgarner was the one who lost out and got the boot.

1:29:29

And I'm not saying he was a saint in any ways,

1:29:33

I disagreed with them on a lot of things

1:29:36

but I think he was honestly trying to do the job

1:29:39

of running a prison whereas the others weren't

1:29:42

and it was doomed to failure under those circumstances.

1:29:44

Interviewer

Did you interact with interrogators ever?

1:29:48

-

On a very, very limited basis.

1:29:52

I ran into one or two of them, but no, not really.

1:29:56

Interviewer

What circumstances?

1:29:59

-

I'm trying to think,

1:30:01

I mean, I had lots of indirect stuff where I would talk

1:30:01

to the clients and they would talk to the interrogators

1:30:05

and the interrogators would tell them stuff

1:30:07

and the clients would tell me stuff,

1:30:09

that really the only very limited contact I had

1:30:11

with interrogators was when we were both

1:30:14

walking into the compound at the same time

1:30:17

and that was very limited.

1:30:20

Interviewer

Did any of the interrogators treat

1:30:23

the men well from your perspective?

1:30:26

-

Well, I think

1:30:29

smart interrogators always treat people well.

1:30:31

If you know the classic stories of Shaker Libby

1:30:33

for example, you know that the FBI was treating him well

1:30:38

and getting a lot of good information out of him.

1:30:42

CIA bus sentenced starts abusing him

1:30:45

and takes him for torture in Egypt

1:30:47

and they get out of him that Saddam Hussein

1:30:49

and Al-Qaeda and league on weapons of mass destruction

1:30:52

and then they go to war in Iraq.

1:30:56

So that's what you get when you abuse prisoners,

1:30:57

so a sensible interrogator will always

1:31:00

treat the prisoner well.

1:31:02

So there were some sensible interrogators, I feel sure,

1:31:05

I didn't think much of them got anything out of anyone

1:31:10

just because it was like squeezing a rock.

1:31:11

Interviewer

And when you said you had interactions

1:31:14

with officials, was it ever with the civilian officials?

1:31:17

Was it always military? Did you ever-

1:31:20

-

I went on civilian officials.

1:31:22

Interviewer

So in Washington D C,

1:31:24

did you ever meet with any?

1:31:26

-

No. I don't think I ever met with,

1:31:28

I met with military people in Washington

1:31:30

but never with civilians.

1:31:32

Interviewer

Did they ever try to pressure you

1:31:34

in any way?

1:31:37

-

I mean, look,

1:31:39

no, not really.

1:31:42

I mean, they had their views

1:31:43

they would tell me what they thought when they

1:31:44

were trying to get Binyam to take a plea.

1:31:46

They really wanted him to plead guilty and it was funny

1:31:50

to begin with, they wanted him to serve life,

1:31:52

then they wanted him to sit 15 years,

1:31:54

and then we finally got down to eight days.

1:31:56

He was gonna serve if he pled guilty

1:31:58

and at that point we knew he was going home.

1:32:00

Interviewer

So over time,

1:32:06

what has your opinion about the American legal

1:32:09

system or America change and just watching these last eight

1:32:13

years you've been there at the very ground floor

1:32:16

and you've inherited.

1:32:19

-

Yeah. My opinion's changed hugely actually

1:32:20

and that's because it's very different from capital work

1:32:22

and one perspective on doing death penalty cases in the deep

1:32:26

South at least very rarely is the media

1:32:30

offering.

1:32:35

It is sometimes, I mean I've represented Sharif Cruzan

1:32:36

who is this totally innocent 16 year old

1:32:39

and there the media was our ally because it was gonna be,

1:32:43

Geraldo Rivera did a thing on it and when Geraldo does it

1:32:47

you know it's gonna be incredibly superficial.

1:32:51

And so if the superficial story is innocent teenager

1:32:53

on death row you know he's gonna come out your way,

1:32:57

but by and large that's not the name of the game

1:33:00

in death penalty cases.

1:33:03

In Guantanamo because we were robbed of any court

1:33:05

for many, many years and we always have been robbed

1:33:09

of any real court because even in federal court

1:33:13

the rules are so stacked against us.

1:33:16

The court of public opinion became vastly more important

1:33:18

and I guess on one level statistics don't tell the whole

1:33:23

truth but there is nothing as emphatic as zero.

1:33:26

And there was a time when 500 prisoners had been released

1:33:30

from Guantanamo Bay and the courts of law had released zero

1:33:34

and 500 had been released as a result of public pressure

1:33:39

and whatever.

1:33:43

And that taught me a huge amount that

1:33:45

our role as lawyers, I always knew this on some level

1:33:48

because even in capital cases you settle

1:33:52

90% of cases pre-trial and you do that by looking around

1:33:55

at the different people you've gotta persuade

1:33:59

who are not the jury.

1:34:01

When you get in front of the jury you've lost most of it

1:34:03

but you've gotta persuade the judge,

1:34:05

you've gotta persuade the sheriff,

1:34:07

you've gotta persuade the prosecutor and so on and so forth.

1:34:09

But with Guantanamo cases you've gotta persuade the people,

1:34:12

and it wasn't even the American people very much

1:34:16

our strategy was not the American people,

1:34:18

I mean, it was remarkable quite frankly, excuse me

1:34:21

I'm gonna have to (sneezes) sneeze, excuse me,

1:34:25

I don't know what that was.

1:34:28

And it was very much not the American people.

1:34:32

I think we recognize from the very early days that

1:34:35

it was gonna take a long time for America to see what

1:34:38

a disaster this was, actually we've come much further,

1:34:42

much quicker than I would ever expect

1:34:45

but I always used to think about the Japanese Americans

1:34:46

being interned in World War II,

1:34:49

it took 40 years for that to be truly recognized

1:34:51

as a mistake.

1:34:54

But when you think about how do you bring power

1:34:57

to the powerless people in Guantanamo Bay,

1:34:59

the most obvious way was a strategy I used to use

1:35:03

for foreign nationals on death row in America

1:35:06

which was to go get their government and get them to help

1:35:08

because there's a very simple process here

1:35:11

that on a death case the European national sport

1:35:15

is not football, it is bashing America,

1:35:19

the Europeans love to be sanctimonious and say we don't

1:35:22

have the death penalty so we're gonna teach you a lot.

1:35:25

So it's actually very easy to get the Europeans to come

1:35:28

and help a prisoner on death row if that prisoner's

1:35:30

a European and suddenly you've got millions of people

1:35:33

on your side.

1:35:36

Now, in the context of Guantanamo is even easier,

1:35:37

not easy to begin with,

1:35:40

I mean, for all the European sanctimony in the early days,

1:35:42

2002, 2003, no one was on our side,

1:35:45

the Europeans were against us too.

1:35:48

It was only in June, 2003 when they charged two British

1:35:51

people which was a big mistake on the part of the American

1:35:55

government that suddenly the Europeans started getting upset

1:35:58

because there's one thing banging up Muslims

1:36:01

but not arm Islam.

1:36:03

And so suddenly the Europeans became much more sympathetic,

1:36:06

and then if we went to an Arab country, for example

1:36:09

if I went to an Arab country and said,

1:36:13

"Look, I apologize, we shouldn't be doing this,"

1:36:14

99% of that country was on our side.

1:36:17

In Britain 85% was on our side,

1:36:21

so you suddenly have this hugely powerful mass of people

1:36:25

on the side of our prisoners and so clearly our strategy

1:36:29

was to get as much information out of Guantanamo

1:36:32

legitimately and then use it in the European and other media

1:36:35

and use that pressure on the U S to get the person

1:36:41

in a fair shake,

1:36:44

and that worked very effectively.

1:36:46

So in one way, that was the lesson of the whole process

1:36:47

is that the legal system is pretty ineffectual by and large.

1:36:50

It's important as we'd never have got into getting

1:36:54

no without a Supreme court decision

1:36:56

but it's only one of the bows on our string.

1:36:59

Interviewer

And so how has that changed your life

1:37:05

in terms of

1:37:08

how you viewed the world,

1:37:10

how you matured and grown from all this?

1:37:12

-

Well, it is about power, isn't it?

1:37:14

I mean, I've always thought the reason I did death penalty

1:37:15

cases as my career is because they're the most hated people.

1:37:18

There's nothing like I'd watched six of my clients die

1:37:22

in the gas chamber, the electric chair

1:37:25

and the fuel injection and there was no moment

1:37:27

that I can imagine in life when the distillation

1:37:31

of human hatred is quite so profound is when the entire

1:37:34

state has decided to ritualistically put someone to death

1:37:38

as some sort of sacrifice on a bizarre alter to a God

1:37:42

that I didn't understand.

1:37:45

So

1:37:48

given that that was why I got involved in Guantanamo

1:37:50

because it seemed very parallel and I don't think

1:37:52

it's a novel notion and Guantanamo doesn't add a lot to that

1:37:55

except perhaps take it a bit more extreme.

1:37:58

But what it taught me in a huge way was to look much more

1:38:02

laterally at the power that we can bring to get

1:38:06

in between those people doing the hating and the person

1:38:10

being hated and that's much more than standing up in court.

1:38:13

It's much more than, they used to accuse us

1:38:17

of sort of slash and burn tactics in court in Louisiana.

1:38:19

And yeah, we behaved much more aggressively perhaps

1:38:23

than a corporate lawyer in a polite discussion of money,

1:38:26

but on the other hand I've learned way more than that now

1:38:31

and even in capital cases across the world that we now do

1:38:34

we take a much more proactive approach to public opinion

1:38:40

than I used to in the old days.

1:38:44

And I'll tell you one thing,

1:38:47

when the history books are written about Guantanamo

1:38:51

and this whole era

1:38:55

torture will win that battle.

1:38:58

It was an aberration, it'll take a while but we'll win

1:39:01

the battle, it's been a tragedy that torture is even

1:39:04

in the debate of the 21st century but we'll win that battle.

1:39:06

We'll win the battle about detention without trial probably,

1:39:10

that's a slightly tricky one but we'll probably win that one

1:39:13

by far the most dangerous and insidious

1:39:16

remnant

1:39:22

of the last several years has been secrecy

1:39:23

and that's the battle that we're not gonna win

1:39:27

unless we're very, very careful.

1:39:29

I can't talk about classified evidence and I won't,

1:39:31

I'll never violate the rules because I know I've got a big

1:39:35

target and even though I think their rules are silly

1:39:37

I have obeyed their rules just as I did in death penalty

1:39:41

cases, I think killing people

1:39:44

is a horrendous offense but I'm not gonna violate the rules

1:39:46

to prevent an execution any more than I'm gonna violate

1:39:51

the rules now but I'm gonna change them if I possibly can.

1:39:53

And I want to make that clear, I'm not gonna the rules,

1:39:56

but

1:39:59

of the materials I've seen that have been deemed classified

1:40:02

by the United States, 99% should not be classified.

1:40:07

There are one or two things perhaps should be,

1:40:11

I mean, in the names of agents,

1:40:13

I don't care what they are and I don't want to know,

1:40:14

I don't really care, but the overwhelming majority of that

1:40:17

which is deemed classified is simply embarrassing,

1:40:21

it's embarrassing on the level that it's evidence

1:40:24

of torture, it's embarrassing because it's evidence

1:40:26

of a homicide by Americans,

1:40:29

it's embarrassing because we made these catastrophic

1:40:31

mistakes and we kept getting the wrong person,

1:40:33

it's embarrassing because we believe some informant too

1:40:35

is just a lunatic and so forth.

1:40:39

It's all embarrassment

1:40:42

and what we've done over the last few years is conflate

1:40:44

national security with political embarrassment

1:40:47

and we've said that we have the power as a government

1:40:50

to make things secret when they should just be embarrassing.

1:40:53

Now, that was the argument Richard Nixon made.

1:40:56

He said that as president he should have the power to say

1:40:58

what's legal and what's not legal and just because

1:41:01

it's embarrassing to him Watergate should be kept secret.

1:41:04

This is by far the biggest challenge

1:41:08

and the reason it's a challenge is this,

1:41:10

that it's very hard to get people to pay attention

1:41:14

to the dangers of the secrecy,

1:41:17

because if I come to you as a journalist and I say,

1:41:19

"Hey, I know the stuff that's really, really embarrassing

1:41:21

to the U S and that really should be public

1:41:25

and there's a massive story."

1:41:28

And you as a journalist say to me, "Oh, wow, what's that,

1:41:30

tell me the story."

1:41:33

And I say, "Well, I can't tell you what it is,

1:41:34

all I can tell you is that it's really embarrassing

1:41:36

and I'm not allowed to talk about it,"

1:41:38

but that's not much of a story and you don't publish

1:41:40

that story.

1:41:41

And so trying to get people's attention on these

1:41:43

embarrassing issues

1:41:47

and the overuse, the massive overuse of secrecy

1:41:50

is the great challenge that faces us, whether it be-

1:41:55

Interviewer

Okay. Is that your goal to work on it?

1:41:59

-

Well, I feel very, very passionately that we need

1:42:03

to change that process to make a society more open.

1:42:09

As I think the Florida Supreme Court once said,

1:42:14

"Sunshine is the greatest disinfectant."

1:42:18

And I'm not in the least bit interested in sending people

1:42:21

to prison for the wrongs that have happened

1:42:23

over the last several years, I really don't believe in that

1:42:26

but I think it's desperately important

1:42:30

that we should expose the truth of what happened

1:42:32

because if you don't know what history was you can't learn

1:42:35

from history and you are doomed to repeat it

1:42:37

and repeat all of its mistakes.

1:42:41

So I do feel very strongly about the secrecy stuff now.

1:42:43

A good example is the torture inquiry that Britain

1:42:47

is launching now.

1:42:50

There's huge pressure from the security services to maintain

1:42:51

embarrassing material a secret.

1:42:55

I'm gonna fight that tooth and nail and that we'll do one

1:42:57

of two things, we will either get that material public

1:43:00

so we can create rules to make sure it doesn't happen

1:43:04

in the future or we'll make them look so awful that

1:43:07

we'll diligence most of the whole process

1:43:10

that they're going through.

1:43:11

They can't win that battle because one of the great lessons

1:43:12

I find, I find this great, very entertaining is

1:43:15

I don't care what they think of me, I just don't care,

1:43:19

whereas they really do care what the public thinks

1:43:22

about them.

1:43:25

Politicians are such wimps

1:43:26

and so we can just keep on bashing them until finally

1:43:28

they give up and if they don't give up

1:43:32

they'll look horrible.

1:43:34

So it's fine.

1:43:35

It's a shame, I think it would be far better

1:43:37

if we approached this in a more truth and reconciliation

1:43:39

process but then I've suggested it I've begged them

1:43:42

to do that, if they don't do that we'll do it the other way.

1:43:45

Interviewer

A few more questions but I wanna go back

1:43:47

to something you said 'cause not everyone,

1:43:49

including people we interviewed agree with you

1:43:51

when you said torture will come to pass.

1:43:53

There's some people who feel that a little torture

1:43:57

isn't such a bad thing especially if there was another 9/11

1:43:59

and that Americans actually might not be offended by that

1:44:03

if that's what could save us America.

1:44:07

-

I think there is a huge temptation to think

1:44:10

that torture works,

1:44:13

and one of the tragedies of the Bush era has been that

1:44:15

the debate about torture has been re-introduced.

1:44:21

Look, in September the 10th, 2001, nobody in the Western

1:44:23

world was saying torture was a good idea,

1:44:28

maybe one or two lunatic academics just because they wanted

1:44:30

to provoke their students but no one really was.

1:44:34

And now it has reentered the debate but we will win that,

1:44:37

and the reason we'll win it ultimately is because they're

1:44:41

so totally wrong.

1:44:44

I was fascinated by, I made this

1:44:47

rather second rate documentary called

1:44:50

typically for television torture, is it a good idea?

1:44:53

And I got to interview all sorts of quite high powered

1:44:57

people, including like Richard Pell and various

1:45:00

conservative Americans.

1:45:04

Every single one came up with the ticking time bomb

1:45:06

scenario.

1:45:08

There's a time bomb ticking in New York

1:45:09

and the guy who set it could stop it that he doesn't want

1:45:12

to and he, whatever he wants to die

1:45:16

and would you torture him?

1:45:18

And everyone comes up with that.

1:45:21

The legal term for that is bullshit.

1:45:24

And what you do is you say to him,

1:45:28

"Look, I'm gonna give you 50 years, a hundred years,

1:45:30

500 years, a thousand years, you name me one instance,

1:45:33

just one historical instance ever

1:45:37

when torture stopped a ticking time bomb."

1:45:40

And I bet you can't do it and I bet no one can do it.

1:45:43

Now, even if they could, one instance

1:45:45

versus all the damage that's done to our moral reputation

1:45:49

and it's really this simple, it's very simple

1:45:54

and it's a huge floor in our political world.

1:45:58

When a politician takes an action such as Guantanamo Bay

1:46:01

or Belmarsh in Britain or whatever,

1:46:05

what they're doing is they're responding to a terrible

1:46:07

tragedy like 9/11 or 7/7 in England.

1:46:10

And the way they respond is they respond by saying,

1:46:14

I'm going to hypothesize that some terrible crime

1:46:17

will happen in the future and try to stop that crime,

1:46:20

and by doing that I'm making the world safer by preventing

1:46:24

that crime, but actually what they're doing is making

1:46:27

the world much more dangerous because by banging up 12

1:46:29

people in Belmarsh or 780 people in Guantanamo

1:46:32

they're pissing off so many people around the world,

1:46:37

that then making your life

1:46:39

as an American far more dangerous.

1:46:41

And what politicians need to see and what we need to hold

1:46:43

them to is their job is not to prevent a hypothetical crime

1:46:46

in the future much like Tom Cruise in that movie,

1:46:49

rather it's to make the world a safer place.

1:46:54

Now, if you want America to be safe or Britain to be safer

1:46:56

there's a simple solution,

1:47:00

and the solution is to behave decently.

1:47:01

It really is true that the effective enforcement

1:47:05

of human rights is the greatest anti-terrorism weapon

1:47:08

in our arsenal because if you behave well

1:47:10

fewer people wanna kill you, more people wanna help you,

1:47:13

and the few nutters who are always gonna be out there

1:47:16

are gonna find themselves very isolated.

1:47:19

If you behave badly you're going to achieve exactly

1:47:21

the opposite goal.

1:47:25

So and that's just true, that's just the way the world is

1:47:26

but it's not the way the politicians see it.

1:47:30

So we do have a battle, I don't pretend to be done

1:47:32

but we will win that battle.

1:47:35

Interviewer

Well, I don't think this is the place for me

1:47:38

to go on and discussing that but I will tell you

1:47:41

that other people think it make sense that they're willing

1:47:42

to do some torture.

1:47:47

-

Well, as Winston Churchill said, "The fact that 50 million

1:47:48

idiots think something doesn't mean they're right."

1:47:51

I'm sorry, I don't mean to tar everyone with a brush

1:47:54

but as long as I quote Shakespeare

1:47:56

it's not quite as patronizing.

1:47:57

Interviewer

Could you describe a little bit

1:48:01

about the detainees that they're former detainees

1:48:03

you see today, how their lives are if,

1:48:05

because some of the men we've spoke to feel they

1:48:09

have no future that the lives aren't much better.

1:48:12

I mean, of course they're better being out of Guantanamo

1:48:14

but often their lives are very restricted.

1:48:17

-

Well, it's very difficult.

1:48:20

I mean, when you exonerate someone off death row

1:48:21

for example, life suddenly doesn't suddenly become all nice

1:48:23

and indeed over the years and I've

1:48:27

had a lot of prisoners who've got off death row

1:48:32

and they spend all this time in prison.

1:48:34

And then unlike someone who's paroled at the end

1:48:37

of a sentence, suddenly the doors are open

1:48:40

and they're kicked out and that's that.

1:48:42

And the vast majority of people exonerated

1:48:44

off death row never get any compensation,

1:48:47

indeed I have somewhere a cheque that was written

1:48:50

to Dan Bright, one of my clients which was all

1:48:53

the compensation he got for nine years on death row

1:48:56

and it was $10 which wasn't even enough for a bus ride

1:48:58

and you sue like the old days.

1:49:02

And so suddenly they're tossed out in the world

1:49:04

with no support, no nothing.

1:49:07

And they probably had a tough life before they went there

1:49:09

and they've now been treated horribly in prison for a decade

1:49:12

or more and now they're thrown out and left to get

1:49:15

on with it.

1:49:18

It's not surprising that so many of them find life

1:49:19

so very difficult.

1:49:21

With Guantanamo again, it's the same but worse

1:49:23

and because they were probably mistreated far worse,

1:49:26

they were probably in a worse situation in the first place.

1:49:30

So many of our clients were actually in Pakistan,

1:49:33

some in Afghanistan as refugees because they were from Syria

1:49:36

or Morocco or Tunisia or Algeria

1:49:43

and they

1:49:47

fled those countries because they're so unpleasant.

1:49:49

And now what are we gonna do?

1:49:52

We're gonna send all these prisoners back to Algeria

1:49:53

but they never wanted to be in the first place

1:49:56

and they're going to be treated horribly

1:49:58

when they get back there.

1:50:00

And even if they're luckier than that and they come back

1:50:02

to a place like Britain,

1:50:05

at least in Britain they're gonna have a national health

1:50:07

service, they'll get some support but they still have

1:50:09

to deal with what they had to deal with before they got

1:50:12

locked up and on top of that all the abuse they'd been

1:50:15

through.

1:50:18

So it's very, very hard

1:50:19

and even some of the people, like Samuel Hush

1:50:21

who come out to a good job at Al-Jazeera,

1:50:25

I've watched Sammy struggle and he's a fundamentally

1:50:28

decent human being

1:50:31

and yet he has to deal with the fact that for seven years

1:50:35

were taken away from him for no good reason,

1:50:39

he was horribly mistreated.

1:50:42

How do you deal with that?

1:50:44

And that's very hard thing for any human being to deal with.

1:50:45

(coughs)

1:50:50

Interviewer

Did the U S provide reparations too.

1:50:51

-

Yeah. There are two sides to this,

1:50:54

one is I've tried to tell European governments that

1:50:55

if you want to make your country safer,

1:50:57

then what you do is you take a bunch of refugees

1:51:01

from Guantanamo because if you do that

1:51:03

won't cost you very much but what it'll do is show the Arab

1:51:05

world, the world of Islam that you mean what you say

1:51:09

when you talk about human rights and it will immediately

1:51:12

take the target off your back

1:51:15

and that would just be common sense

1:51:17

if common sense was so common.

1:51:18

But quite hard to persuade people that,

1:51:21

and the second thing we should do is obviously

1:51:24

give people compensation.

1:51:27

I mean, look, we have a problem with Yemen,

1:51:28

we're worried about sending people back to Yemen.

1:51:30

If the per capita national income of Yemen is $300

1:51:33

and there were a hundred Yemenis that means it costs

1:51:36

$30,000 per year to give all 100 of them

1:51:40

as an income for a year.

1:51:44

So if you took a tiny proportion of what we're spending

1:51:46

in Guantanamo Bay and say you gave $300,000,

1:51:49

that'd be 10 years income for those people

1:51:53

and they would like you for it, they'd appreciate it,

1:51:55

they wouldn't hate America for it,

1:51:58

with that $300,000 would be the best spent money

1:52:00

we ever spent.

1:52:03

Now, you and I both know what the Republicans would say

1:52:04

about that, what the right-wing press would say about that.

1:52:07

Now, if I was president, which incidentally

1:52:11

is not likely to happen,

1:52:14

both because of the relevant provision in the U S

1:52:16

constitution and because I doubt I get elected,

1:52:19

but if I was president of course I'd do it

1:52:23

and I don't care about the consequences because

1:52:25

it's the right and sensible thing to do but sadly

1:52:27

I'm not sure we'll have that attitude.

1:52:31

Interviewer

Along those lines that you've disappointed

1:52:33

with

1:52:35

the changes in administration,

1:52:37

could you think Guantanamo would have been closed down?

1:52:39

-

Look, I've voted for a Obama,

1:52:43

I thought his book "Dreams From my Father" was probably

1:52:45

the real person and that he's a decent human being.

1:52:48

If anything I'm gonna say let me preface by saying this,

1:52:51

if I was president of the U S which not gonna happen

1:52:54

I would screw it up worse than anyone else,

1:52:58

I'd have a lot of fun doing it but I would not.

1:53:00

I'd probably not go down as America's greatest president.

1:53:03

So with that as a preface,

1:53:07

he's made a lot of mistakes.

1:53:10

I mean, I remember watching Mario Cuomo years ago

1:53:11

give a speech about his opposition to the death penalty.

1:53:15

He stood up for his principle which was very unpopular

1:53:18

at the time, this was 20 years ago and he passionately said

1:53:22

and did what he believed in.

1:53:25

People respected that and he got elected time after time

1:53:27

as governor of New York.

1:53:30

The problem for Obama is he doesn't do that enough

1:53:32

and he has this sort of notion of building consensus,

1:53:37

building consensus with some people who are not

1:53:42

on the same planet as him.

1:53:44

I mean, Ms. Pailin with all due respect is not on the same

1:53:46

planet that I'm on.

1:53:50

Anyone who goes around saying we shouldn't have a national

1:53:52

health service but look at Britain they have an NHS

1:53:54

and they kill old people,

1:53:56

I don't know which planet they're on.

1:53:58

And I don't care to build a consensus with folk like that,

1:54:01

they can go off do whatever they want,

1:54:04

they got the right to free speech like anyone else

1:54:06

but I don't have to agree with them

1:54:08

and they're not gonna agree with me.

1:54:10

And unfortunately in the early days,

1:54:11

Obama piddled around too much trying to establish agreement

1:54:14

with that, so by the time he came up with his Guantanamo

1:54:18

plan the Republicans had seen this as such a dynamite

1:54:21

opportunity to sow discord that he's now lost

1:54:25

his opportunity of doing it.

1:54:28

And I think he would love to trace it,

1:54:29

I think he sees as any sane person sees that Guantanamo

1:54:31

is hugely damaging to America

1:54:36

both internally and externally,

1:54:40

but I just don't think he now can get away with doing

1:54:42

what he wanted to do because he's not willing to invest

1:54:45

the political capital.

1:54:48

That's too bad.

1:54:50

Interviewer

So Guantanamo will be open for another?

1:54:50

-

I don't think it would be closed in his administration.

1:54:54

I hope I'm proven wrong, but I doubt it.

1:54:56

Interviewer

Two more questions?

1:55:01

One is, you said there might've been-

1:55:02

-

Two more questions, when the lawyers say that

1:55:04

they're always lying, there's normally six.

1:55:06

Interviewer

Two more from me.

1:55:07

I'm gonna ask my friend or my wife if she wants one.

1:55:09

But one is you mentioned there might be something good

1:55:12

that came out of Guantanamo,

1:55:15

some people might've seen something good.

1:55:16

Did I hear that correct?

1:55:18

-

I don't think I said that, but I probably would say that.

1:55:20

I mean, there is a silver lining to most clouds

1:55:22

and one of the,

1:55:26

I mean, there are several positive aspects.

1:55:28

I mean, speaking personally I had no idea about his

1:55:31

and all that stuff.

1:55:34

I had new concept, I had no interest

1:55:36

and instead it's created in me a great interest in standing

1:55:39

between Muslims and the people who hate them

1:55:44

and I'm really glad to do that and I know a little more

1:55:47

than I did know about Islamic culture and so forth.

1:55:50

And you don't have to agree with everything to see the good

1:55:56

parts of it and there are some very good parts.

1:55:58

So that's one thing.

1:56:03

And I think that for all the hatred that's been

1:56:04

engendered by the war of terror as Burette calls it,

1:56:07

that has at least we've been forced in the West

1:56:13

to think about certain things that we ignored before.

1:56:17

I mean, I was in Pakistan in February, fascinating,

1:56:20

fascinating place, I had no idea that it's called

1:56:23

the biggest death row the world, 7,500 people

1:56:25

and the degree of corruption in that country is epidemic.

1:56:28

And if we don't know that and if we don't see it

1:56:34

how can we possibly hope to do anything about it?

1:56:36

And if we don't know, for example how

1:56:38

we're mistreating Aafia Siddiqu, the woman we prosecuted

1:56:42

and again to give life imprisonment, probably in New York

1:56:45

how badly that's gonna play in Pakistan,

1:56:48

we're gonna carry on making the mistakes we've made

1:56:52

in the past.

1:56:54

So I think there's been an educational process.

1:56:55

Overall Guantanamo has the negatives of vastly overbalanced

1:56:58

the positives but I've made a few personal friends that said

1:57:02

for that I'm grateful.

1:57:06

Interviewer

And so

1:57:09

is there something that I didn't ask you about yourself

1:57:10

or about-

1:57:14

-

That's a ridiculous question.

1:57:14

We'll be here for days, I'm certainly not gonna answer that.

1:57:16

Interviewer

Okay. Do you a question, Emma.

1:57:19

Woman

I just have one question back to the issue

1:57:22

of torture.

1:57:25

Do you see torture as having a clear definition

1:57:27

or is it subjective?

1:57:31

Does someone decide that they have been tortured

1:57:32

or is there some objectivity

1:57:35

to this term that keeps getting-

1:57:36

-

There are two words that begin with T that are utterly

1:57:40

unhelpful in this whole debate.

1:57:43

One is torture and one is terrorism,

1:57:45

and they're both exploited by other sides in a way

1:57:47

that's quite pointless.

1:57:51

Let's take the word torture first.

1:57:53

I don't care if it's torture

1:57:56

and the convention against torture for example,

1:57:58

you have torture and cruel degrading and inhuman treatment,

1:58:00

I don't care which it is.

1:58:04

When Donald Rumsfeld said that the purpose of these methods

1:58:06

that come up with for interrogating people was to

1:58:10

"Break the will" of the prisoners in Guantanamo,

1:58:13

it doesn't matter what it is.

1:58:16

I've seen so many people in death penalty cases

1:58:17

giving false confessions when they weren't abused at all,

1:58:19

for example, mentally disabled, mentally retarded people

1:58:24

as one says in America.

1:58:28

It's so easy, I got a client of mine to confess

1:58:30

to assassinating President Lincoln, President Kennedy,

1:58:32

and even President Reagan who at the time was any brain

1:58:36

dead and that was when he was president.

1:58:39

It's just not difficult to do with some people,

1:58:42

so what we're focusing on here is whether we're getting

1:58:44

anything useful out of it and whether we're doing something

1:58:48

that's moral and acceptable.

1:58:52

So whether it's torture, whether it's cruel,

1:58:55

inhuman and degrading treatment, whether it's coercion,

1:58:56

whether it's trying to break somebody by abusing them

1:58:59

in other ways, they're all wrong and it doesn't matter

1:59:01

which they are, they're all wrong.

1:59:04

So let's get away from the whole discussion of torture.

1:59:05

Torture is very unhelpful,

1:59:08

it's useful to us in a manipulative way to make the other

1:59:10

side look bad because if I use the word torture to you.

1:59:14

Let's say I used to do this,

1:59:17

this was something I talked to Alan Deschutes

1:59:19

about when I interviewed him for TV

1:59:21

and he was very thoughtful,

1:59:23

I thought he was very interesting.

1:59:24

(coughs) here we go.

1:59:26

There is, you are driving a lorry, right? A truck

1:59:27

down the road and

1:59:32

the brakes go

1:59:36

and if you go straight on

1:59:38

you're gonna kill 15 people whereas if you turn off

1:59:41

you're only gonna kill two, which do you do?

1:59:45

Woman

Two.

1:59:50

-

Two, right.

Now, second question, same thing, scenario.

1:59:52

You're going down the hill and you lost your brakes,

1:59:54

you go straight on you gonna kill 15 people,

1:59:56

if you turn off you're going to kill 14 people.

1:59:59

What do you do?

2:00:04

Woman

14.

2:00:05

-

Okay. Now you're driving down the road,

2:00:06

if you carry straight on you're gonna kill 15 people,

2:00:08

if you turn off you're gonna torture three people.

2:00:11

What do you do?

2:00:14

Woman

Probably torture three.

2:00:17

-

See but you paused, didn't you? Of course you do that.

2:00:20

You're not even gonna kill anyone but why did you pause?

2:00:22

You pause because the word torture suddenly sets long bells

2:00:24

off in your head.

2:00:28

That's what the theory, the study demonstrates

2:00:31

and I think that's probably true

2:00:35

and what that tells you is that torture tends to just

2:00:36

be an emotional word that obscures every sensible debate,

2:00:39

but so is terrorism and the other T word is equally fatuous,

2:00:42

and that is to say terrorism.

2:00:46

I mean, you call someone a terrorist and suddenly everyone

2:00:49

says we should torture them and throw their rights out

2:00:51

and this, that, and the other.

2:00:54

And you give me a definition of terrorism if you can.

2:00:57

Woman

Me?

2:01:01

-

Hmm.

Woman

Willfully destroying another person.

2:01:06

-

You mean like the British army or the American army

2:01:10

in Afghanistan right now?

2:01:13

Woman

Correct.

2:01:15

-

So they're terrorists?

2:01:16

Woman

To the people they're terrorizing, yeah.

2:01:18

-

Yeah. So it seems a slightly futile word, isn't it?

2:01:20

Woman

Yes.

2:01:23

-

Well, I agree with that.

And those are two totally useless words that we should

2:01:24

expunge from the lexicon

2:01:26

would be my response to your question.

2:01:30

Woman

Okay (laughs)

2:01:32

Philosophical response. Thank you.

2:01:34

(laughs)

2:01:36

Interviewer

Well, I'm done, there's no more,

2:01:38

that was great.

2:01:40

-

Great. Thanks.

Interviewer

Thanks so much for the response.

2:01:42

-

My pleasure. What's your plan?

2:01:44

Are you rushing off back to London?

2:01:45

Interviewer

We're recording now.

2:01:48

(indistinct background chatter)

2:01:54

Smith, Clive Stafford - Interview master file

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