Lietzau, William - Interview master file / Witness to Guantanamo / Duke Digital Repository

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Good morning.

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Morning.

Interviewer

We are very grateful to you

0:07

for participating in the "Witness to Guantanamo Project."

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We invite you to speak of your experiences

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and involvement with issues concerning Guantanamo Bay, Cuba.

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We are hoping to provide you

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with an opportunity to tell your story in your own words.

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We are creating an archive of stories

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so that people in America

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and around the world will have a better understanding

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of what you and others have experienced and observed.

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Future generations must know what happened in Guantanamo

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and by telling you a story you're contributing to history.

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And we appreciate your willingness to speak with us today.

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If at any time during the interview,

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you want to take a break, just let us know we can do that.

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And if you say anything and you

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would like us to remove and we can remove it

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at that point too.

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Okay.

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Thank you.

And I'd like to begin with some basic personal information,

0:59

like your name and your hometown and birth date and age.

1:01

Maybe you could start.

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Well, that's the first compound question.

1:08

William K. Lietzau.

1:10

L-I-E-T-Z-A-U.

1:13

You always say that because it's spelled incorrectly

1:15

most of the time.

1:16

Hometown Sudbury, Massachusetts.

1:18

Interviewer

Birthdate and age?

1:22

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Birthdate, nine November, 1960, making me now 53.

1:22

Interviewer

And what your marital status?

1:28

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Married to Diane Lietzau.

1:32

I have two children.

1:34

My daughter is a Lieutenant in the Marine Corps,

1:35

Rae Lietzau, R-A-E.

1:39

And my son Zachary Lietzau is in Air Force ROTC program

1:44

at Embry-Riddle in Daytona Beach, California,

1:49

no Daytona Beach is in Florida.

1:52

I'm in California. Thanks.

1:55

Interviewer

And the education?

1:57

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So I went to the U.S. Naval Academy,

2:02

joined the Marine Corps,

2:07

kept getting lost in the woods

2:09

and needed to find another job.

2:10

Went to Law School at Yale in 86 to 89.

2:11

So Naval Academy was 79 to 83.

2:15

Yale was 86 to 89.

2:18

Later on, I got a Master of Laws degree

2:21

from the U.S. Army Judge Advocate General School

2:25

down at UVA.

2:27

And I wanna say 1996 timeframe.

2:28

I should know those things.

2:33

Later got a Master of Science Degree

2:35

in National Security Studies at the National War College

2:38

around the 2004 timeframe.

2:41

Interviewer

That's interesting.

2:45

You'll tell us why you did it at that point but,

2:46

and then a little bit about your

2:48

occupation before you started working in Guantanamo?

2:51

Before you before 2001.

2:56

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So I started out as an infantry officer

2:59

in the Marine Corps,

3:01

which is kind of the heart and soul of the Marine Corps.

3:02

So you're brainwashed into that early on.

3:04

Went a few years

3:08

and I joke about getting lost

3:09

though I don't have a great sense of direction.

3:11

I spent about three years in the infantry

3:13

doing two deployments with 2nd Battalion, 3rd Marines.

3:15

Then went to law school

3:19

and immediately started in the standard jobs

3:20

a Marine judge advocate would be involved in.

3:22

I was a prosecutor.

3:25

I was a defense counsel.

3:27

I was in various advisory roles, legal assistance,

3:29

things like that,

3:31

primarily prosecution and defense.

3:33

Later became a military judge.

3:35

But then at one point I became interested in war crimes

3:37

and I worked in the Navy JAG office

3:42

as the law of war

3:45

a head of the law of war branch

3:47

for the Department of the Navy.

3:48

Later was pulled into the Chairman

3:50

of the Joint Chiefs of Staff's office

3:52

doing the same law of war type work,

3:53

human rights law, humanitarian law.

3:57

And I was there at a time

4:00

when a lot of treaties were being negotiated.

4:02

So I did the Anti-Personnel Landmines Convention,

4:04

Terrorist Bombing Convention,

4:06

the beginnings of the Nuclear Terrorism Convention

4:08

and the International Criminal Court.

4:10

In negotiating the International Criminal Court Treaty

4:13

in Rome.

4:17

I was the kinda in charge of,

4:18

the Pentagon's position on a number of the jurisdictional

4:22

issues that are well known in the community

4:24

that follows the ICC,

4:28

but then also the war crimes defining the war crimes.

4:29

And I was kind of the initiator of a

4:33

desire to have elements of crimes

4:36

because the ICC was not going to have

4:38

an elements document.

4:41

And so I started,

4:42

I had authorization from our government to push for that.

4:44

That was subordinate to the bigger issue of

4:48

jurisdictional trigger mechanisms,

4:50

but that allowed me free reign to kind of work that issue.

4:52

And in the end,

4:56

we secured an agreement to negotiate

4:57

the elements of crimes subsequent to the treaty.

5:00

So for the next two years after the ICC was signed,

5:02

I led our negotiating team

5:06

in defining war crimes for the ICC.

5:08

And that's what got me in the law of war world

5:13

and international law to a greater degree than

5:16

probably any other judge advocate.

5:19

And so after 9/11,

5:21

when people were looking for who to bring to the Pentagon,

5:23

because we're now in a war

5:27

and war crimes is a big issue.

5:31

They reached out to me.

5:34

I was then ironically, I was a commander of bootcamp,

5:35

which is very different than being a diplomat.

5:40

I moved from being a judge

5:43

with going to New York,

5:46

to the UN every couple of weeks

5:48

to negotiate these elements crimes,

5:49

to getting command in the Marine Corps,

5:51

which trumps every other job in the Marine Corps.

5:54

Interviewer

You were at which bootcamp?

5:58

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So San Diego.

6:01

Interviewer

Is that where you were at 9/11?

6:03

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So in 9/11, yes.

6:05

At 9/11, I was in the gym in San Diego,

6:06

working out as a commander of a battalion,

6:11

a third of the bootcamp there.

6:13

I had 1st Recruit Training Battalion and I was,

6:15

I think working out with a couple of my drill instructors

6:19

and saw 9/11 on TV

6:21

and realized this was big.

6:24

Interviewer

And what happened then?

6:27

What happened to your life then?

6:29

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I mean, I can share the impact at bootcamp

6:32

was I would give a speech every time

6:36

there was a graduation of one of our companies.

6:39

So you have a thousand parents in the stands

6:41

and 500 Marines getting,

6:43

marching in a parade and graduating.

6:46

And I adjusted it a little bit.

6:47

There's a little bit more emotion.

6:49

I remember the first,

6:51

I think I had a company either I did,

6:54

or a fellow battalion commander.

6:56

You had a company graduate every three weeks or so.

6:58

I can't remember if it was my company or another,

7:01

but I remember that first week after 9/11,

7:03

the recruit depots right next to the airstrip.

7:07

So we heard airplanes landing and taking off all the time.

7:10

In fact, you got used to it

7:14

when you gave your graduation speech to the parents,

7:15

you would prepare for a takeoff or landing

7:17

and figure out how you were gonna handle it.

7:21

It was dead silent.

7:25

So there was a palpable difference

7:26

in the three days following 9/11.

7:28

And there was kind of a recognition that we're training

7:32

troops for something we're not sure what it will be.

7:34

And on that Friday, the issue was,

7:39

we've got a thousand parents here for graduation.

7:41

We have 500 recruits are going home for leave

7:43

for a week or so,

7:46

will they be able to get out of the airport

7:49

because there's been a hold holdup

7:50

and people are all filling the hotels in San Diego.

7:52

And I remember sending a Marine to check at the airport

7:55

and we were preparing to have to put up

8:00

families just in case.

8:02

And I remember him coming back saying

8:04

when the Marines walked in,

8:06

cause they're in uniform after graduation,

8:07

everyone just stood up and let the Marines

8:09

go to the airplanes first.

8:12

And so all the Marines got out.

8:13

It was touching.

8:15

It was the first moment when I realized

8:16

our whole country is reacting to this in a very notable way.

8:19

Interviewer

And how did you job change because of 9/11?

8:25

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My job changed because people

8:28

who were familiar with me from

8:30

my previous two jobs earlier,

8:31

when I worked for the Chairman of the Joint Chiefs of Staff

8:34

and the fact that I was kind of the law of war guy

8:37

or one of them at the time

8:40

I started getting phone calls from people in the Pentagon.

8:44

First, it was just asking tidbits of advice on,

8:48

Hey, should we have a declaration of war?

8:51

Should we have just kind of a stray advice

8:53

I was giving to people.

8:57

And then at one point they were going to bring me back

8:59

to the Chairman of the Joint Chiefs of Staffs Office.

9:02

And I was going to work on law of war issues there

9:07

around the same timeframe the president signed

9:12

the First Military Order, military order number one,

9:15

which basically said two things.

9:18

If you capture someone who's fits these criteria,

9:20

the DoD will hold them.

9:23

If you prosecute somebody who fits these criteria,

9:25

there'll be prosecuted by Military Commission.

9:28

In the legal world

9:32

that was the biggest thing going at the time.

9:33

I had ironically just spoken at Harvard Law School,

9:37

maybe like November third-fourth timeframe

9:41

on law of war developments,

9:45

because I was because I'd done the ICC

9:47

and these other things,

9:49

Anti-Personal Landmine Convention was another one.

9:52

And so people were interested in those

9:55

that conference had been scheduled before 9/11, I think.

9:57

And I was asked the question,

10:03

couldn't these people who committed these terrorist acts

10:04

be tried by Military Commission.

10:08

And I remember at the time saying,

10:10

theoretically, I think, yes,

10:13

we could have jurisdiction in a military tribunal,

10:15

but I don't think that'll ever happen.

10:17

They'll all be tried in Article Three courts.

10:19

Military Commissions are a thing of the past.

10:22

Now I've never been invited back to speak there

10:24

because within days the president

10:27

had signed his military order and I realized,

10:30

wow, we're going forward with these military commissions.

10:31

That's the long answer to that to your original question is

10:34

I became interested in military commissions

10:39

during the conversations,

10:41

as I was preparing to go back to Washington,

10:42

to help out with the war effort.

10:46

The Office of the Secretary of Defense,

10:49

some of the people who knew me there

10:51

kind of pulled me from the chairman's office.

10:53

And I was redirected to OSD

10:55

to work on the military tribunals.

10:58

And I left my family in San Diego

11:02

and I went and lived in a hotel for in DC.

11:03

Interviewer

I wanna ask you exactly

11:08

what that means to say that they

11:09

weren't gonna work on military commissions issues.

11:12

But I wanna just ask you briefly,

11:15

why do you think military commissions

11:16

were a thing of the past

11:19

and that we would briefly just go into Article Three

11:20

because we prosecuted [Indistinct]

11:25

Why do you think like that then?

11:26

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I thought that because, well,

11:29

I had worked on the Terrorist Bombing Convention.

11:30

I was aware of the initiatives to bolster

11:32

our law enforcement tools in the terrorism world.

11:35

I also recognized that the Uniform Code of Military Justice

11:41

had gone through some substantial changes

11:45

since the last time a wartime military tribunal

11:47

had been used.

11:53

And I was also familiar with the kind of perceptions

11:54

in the judge advocate community

11:59

that courts martial were now the appropriate tool.

12:01

I didn't agree with that,

12:04

and I also knew that as the rules for courts martial

12:07

were developed over the 60,

12:10

50 years after World War II,

12:12

they hadn't been developed in a way that contemplated

12:14

foreign enemy combatants being tried.

12:17

For instance, if you're an enlisted person

12:20

getting prosecuted in a military court,

12:25

you can choose to have a third of the jury

12:29

as enlisted members.

12:33

Well, how would that apply to an enemy terrorist?

12:34

Can he say, I want a third of them to be enlisted members,

12:37

not from my own unit.

12:40

Well, of course, we're not gonna anyone from your own unit,

12:42

you belong to the enemy.

12:43

We don't use jurors that are members of the enemy force.

12:44

Point being the rules that had developed over the years,

12:48

didn't really make sense for this context.

12:51

Interviewer

Did you change your mind

12:55

about military commissions

12:56

when you started working in them?

12:58

Did you see the value of them or did you never really?

13:00

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Yeah. So when you say change my mind,

13:03

I clearly changed my mind that we might be using these

13:05

because the president had signed an order saying we would,

13:08

and my job was to start working on them.

13:11

So yes.

13:13

And then in terms of, did I change my mind

13:14

because I thought they were valuable?

13:18

I would say yes to that as well.

13:21

But it wasn't clear in the beginning exactly

13:24

how they were going to be used

13:27

or exactly why they would be valuable.

13:29

What was always key to me is that

13:31

they were courts for exigent circumstances.

13:34

I think historically,

13:36

if you look at military commissions,

13:37

there's some sort of exigency,

13:38

it might be that you're just out

13:40

at the pointy end of the spear,

13:42

and there's no judicial system there.

13:43

And you need to quell local violence

13:44

by creating some kind of a local tribunal.

13:47

You're establishing the rule of law

13:52

where it otherwise wouldn't apply.

13:54

I think some of those circumstances don't make sense,

13:56

now we have airplanes,

13:58

we can fly people back to places where there are courts

13:59

in some cases,

14:03

but also the law of war being a subject matter

14:04

that wasn't normally within the purview of,

14:08

of civilian court systems was an issue.

14:10

We had the War Crimes Act that did exist.

14:13

Wasn't well developed.

14:16

Wasn't well drafted and it had never been used.

14:17

So you had some reasons why military tribunals

14:21

had been used to prosecute war crimes.

14:25

And there was a reason those as exigent circumstances

14:28

might justify using military tribunals.

14:32

The other thing you have or things you still have,

14:34

which are Miranda rights,

14:35

no one had quite figured out how they would grapple

14:38

with that problem.

14:41

Clear in my mind,

14:42

I think it's a bit of a red herring

14:43

because clearly the justices,

14:44

when they wrote the Miranda opinion,

14:47

I think 1956 or so had not,

14:49

I hope I'm right about that.

14:53

I don't know, but they,

14:54

they did not contemplate that a battlefield commander

14:57

or some troop out in the field would have

15:02

to read Miranda rights to the enemy

15:05

and it doesn't show up in the opinion.

15:06

It certainly don't show up in a descent either.

15:09

No one was even contemplating that.

15:11

So to say,

15:12

we would have to apply Miranda

15:13

to a battlefield interrogation.

15:15

I would prefer to have grappled with that

15:17

in the courts themselves and gotten that fixed right away.

15:19

And then you've got the intelligence,

15:22

the nature of this conflict within a terrorist organization.

15:24

Not high-tech not the Soviet threat

15:28

that we had been preparing for,

15:30

necessarily involve a lot of human intelligence

15:32

and protecting that intelligence

15:36

during an ongoing armed conflict,

15:38

it appeared there was an intent to use military tribunals

15:40

while the conflict was going on.

15:44

That's something we don't normally do in war.

15:46

And if you need to protect the intelligence,

15:49

you probably needed more robust rules to do so.

15:51

So those were the justifications for military commissions,

15:54

I think in those times.

15:57

What I didn't like and I still don't like,

15:58

there were two things I really,

16:01

you didn't ask this,

16:03

but you've got me going and thinking about it.

16:03

That the two things I did not like

16:06

was that it excluded Americans.

16:08

It seemed unprincipled to me,

16:10

it wasn't historically consistent.

16:12

We've used military commissions against Americans

16:14

and a related concept that somehow constitutional rights

16:18

don't apply to the terrorist because they're so evil

16:22

they don't get constitutional rights.

16:25

It's true that the constitution may not apply

16:27

to Non-Americans in a number of contexts.

16:30

But those constitutional rights that are associated

16:33

with our judicial system

16:35

are part and parcel of the judicial system.

16:37

So to not apply them makes no sense.

16:39

It's not that we wanna give them to terrorists.

16:42

It's that that's the judicial system we have.

16:45

And it was all designed around,

16:48

the right to remain silent

16:51

and the various provisions within that context.

16:52

So I really didn't like it when I would hear people say

16:54

the terrorists don't deserve our courts.

16:59

We don't know if they're terrorists

17:02

until we've prosecuted them.

17:03

So to say, Abbonizio

17:04

that you're not going to have rights

17:07

when we haven't even convicted you yet seemed absurd.

17:10

So I was against commissions for those reasons,

17:13

but those were not the primary reasons to me,

17:15

the primary reasons from my perspective were war time

17:17

circumstances that had not been contemplated

17:20

when we came up with our Article Three

17:24

or our court martial judicial systems.

17:26

Interviewer

When you said Americans,

17:28

do you mean American "enemies" not just an American soldier,

17:30

it would have to be an American enemy

17:34

or would you include American soldiers

17:35

in what you just said,

17:37

it didn't include Americans?

17:39

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I think, well both I would include Americans altogether

17:41

as prosecutable by military tribunal, if necessary.

17:46

Interviewer

Why over court martial?

17:51

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I'm not saying you would,

17:53

but I'm saying I wouldn't have excluded jurisdiction

17:54

in the beginning.

17:57

I think in one of the Supreme Court decisions they made,

18:01

I think one of the justices made a little bit of a mistake

18:03

where they kind of assumed that the normal way we try

18:06

soldiers today is by court-martial.

18:11

Yes, but that's like saying the normal way

18:13

we try a civilian is in traffic court

18:15

because traffic court tries more offenses than other courts.

18:17

I don't know if that's true,

18:20

but you get my point.

18:22

We don't try a murder in traffic court,

18:23

even though that's the most common court use.

18:24

We may use courts martial to try soldiers,

18:27

but not for war crimes.

18:29

We don't try soldiers for war crimes in courts martial.

18:30

I don't think we ever have.

18:34

We theoretically have jurisdiction

18:35

in a court martial to do that,

18:37

but we have elected to use commissions historically.

18:38

There just isn't that much recent history to give us.

18:41

I think the case against Calley My Lai

18:44

is a good example.

18:47

If I were to say we don't try war crimes in a court martial,

18:49

people would say, what about Calley?

18:52

He was tried in a court martial.

18:53

He was tried for murder in a court martial.

18:55

He wasn't tried for the war crime of lawful killing.

18:57

Yet, if you look at one of the appellate decisions

19:00

in the Calley Case, one of the witnesses,

19:02

he was not able to get in his trial.

19:05

So there's a little bit of an appellate issue of,

19:08

I can't remember the specifics,

19:10

but they wanted to testimony of somebody

19:11

who was refusing to testify.

19:13

Why was he refusing to testify?

19:15

He had Fifth Amendment right to remain silent

19:17

because there was a risk.

19:19

He would be charged in a military commission

19:21

for a war crime,

19:25

meaning even back then they were contemplating using a work,

19:25

a military commission for a war crime,

19:30

a court martial for

19:32

a regular trial know charge of murder.

19:37

And that's that circumstance was just not understood

19:40

by the people making the initial judicial decisions

19:44

on the viability of commissions vis-a-vis court martial,

19:47

and think courts martial bothersome.

19:50

Interviewer

I would like to continue that,

19:56

but I think I'll instead,

19:57

I'll go on to, when you were brought into the Pentagon

19:58

it sounded like you weren't quite sure

20:01

what your role you would have when you were brought in.

20:03

Did you know exactly what role you'd have and what was it?

20:05

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No, I didn't know what role it was a little

20:10

like with all kinds of personnel,

20:14

I didn't understand the personality conflicts

20:15

and dynamics in play at the time.

20:19

When I got to the Pentagon, I was advised

20:22

that there's a little bit of a,

20:24

there's a different relationship between the uniform side

20:28

and the political side

20:30

than what I had seen last time I was there.

20:32

Part of it was simply,

20:36

but part of it was also encouraged by me

20:37

once I heard that the military commissions were being

20:39

handled in the Office of the Secretary of Defense,

20:42

I thought that's more interesting to me

20:44

then the things that are being handled in the Joint Chiefs

20:47

I've already been in the chairman's office,

20:49

do something new and different.

20:51

So I wasn't bothered by the fact that I got pulled up into

20:53

originally in the office of the

20:58

Deputy General Counsel for International Affairs

21:00

and subsequently the Deputy General Counsel Legal Counsel.

21:04

Two different deputies under Jim Haynes, the General Counsel

21:08

that were sharing this issue

21:12

because one dealt with the law of war issues.

21:13

One dealt with litigation issues

21:16

and in military commissions were being

21:17

considered one of those issues

21:21

and the military commissions.

21:23

So I kind of went in between actually

21:24

I had a mailbox in both offices and I was,

21:26

I think my business cards said

21:32

Special Advisor to the General Counsel.

21:33

So even when I first got there, it evolves after that.

21:38

Interviewer

So with your role basically,

21:42

to be an expert on military commissions

21:44

and on the law of war for both?

21:47

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Yes. I think so.

21:49

And I knew people already

21:51

in the Office of International Affairs,

21:53

a previous boss was, and is still,

21:55

is the Deputy General Counsel there, Chuck Allen.

21:57

So I got involved in the initial,

22:01

I think one of the very first things I got to look at was

22:03

whether to the decision as to whether

22:08

to call them prisoners of war or not.

22:10

And that was really outside

22:13

of the military commission framework,

22:14

but because I was there and knew the people involved.

22:16

I got kind of pulled into those discussions early on

22:20

and within a month I had shifted

22:23

to the military commission world more full time

22:25

because that's where the new things were really happening.

22:31

Interviewer

So if it was prisoner of war

22:35

or the term enemy combatant who came up with

22:37

who thought of enemy combatant

22:40

as an option to prisoner of war?

22:42

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Well, it didn't happen in that sequence.

22:45

Ironically, I was there when we came up

22:49

with the enemy combatant term.

22:52

I hesitate to say I was responsible for

22:55

cause it's been so resoundingly criticized since.

22:57

But the initial call was whether or not the.

23:01

I showed up like around January 10th timeframe

23:07

right after getting--

23:11

-

2002.

-

Of 2002. I was amazed that we had not yet decided

23:13

whether or not these people were prisoners of war

23:18

or what they were.

23:21

They were already being called

23:22

unlawful combatants at the time.

23:23

I think that term was fine.

23:26

There there's a little bit of difficulty

23:28

with the term unlawful combatant though,

23:30

because if you're party to Protocol I and Protocol II

23:32

of the Geneva Conventions

23:36

as most of our European allies are,

23:37

there's the word combatant

23:39

tends to be used as a term of art

23:41

that kind of means lawful combatant.

23:43

So to say unlawful combatant,

23:45

which was used in World War II

23:47

and in various historical contexts,

23:49

it's almost like an oxymoron to a European law of war guy

23:52

because you're saying unlawful, lawful combatant.

23:55

And so there was a lot of criticism

23:57

of the unlawful combatant term.

23:59

Some people thought we should have used

24:01

unprivileged belligerent.

24:03

I probably would have agreed,

24:04

but it was already that was water under the bridge

24:05

or over the dam or whatever the metaphor is.

24:09

And so they're using unlawful combatant,

24:12

but then the question is

24:15

should some of them be prisoners of war.

24:17

Nobody was really saying Al Qaeda should be prisoners of war

24:19

because they didn't qualify

24:21

under any reading of the Geneva Conventions.

24:22

There was a bit of a discussion

24:25

as to whether the Taliban should be called prisoners of war.

24:27

And I remember one of my first tasks was to take

24:30

a legal opinion that had been written

24:35

by the Justice Department.

24:36

I guess, now I know John Hugh was probably heavily involved.

24:38

It was an impressive piece of work, like 40 pages.

24:41

And then there was a competing opinion

24:44

from the State Department.

24:47

I was asked to look at those

24:48

and give my assessment of who wins.

24:49

I learned some things.

24:56

I learned it was a different dynamic.

24:57

I made an initial call to the State Department

24:58

to friends I knew to kind of a collaborative,

25:01

what do you think of this?

25:03

And I was pulled aside later on and said, no, no,

25:05

we're asking for your opinion.

25:07

It was a different type of coordination

25:10

that was happening in the Bush administration

25:12

than was happening in the,

25:14

had happened in the Clinton administration

25:16

that I'd seen before.

25:18

I looked at the two opinions.

25:20

I didn't fully like either of them.

25:22

The Justice Department one,

25:26

kind of started with a failed state analogy.

25:27

Therefore, the Taliban is not the...

25:30

Afghanistan is a failed state.

25:33

The fact that their party to the Geneva Conventions

25:34

thus becomes moot.

25:36

That seems like a dangerous precedent

25:39

because if we use the same thing,

25:41

for instance, on the START Treaty,

25:42

then Ukraine could have not been bound by the START Treaty

25:44

or the Anti-Ballistic Missile Treaty

25:47

or something we'd have loose nuclear weapons.

25:49

So I understood why the State Department would have an angst

25:51

over that kind of a determination.

25:53

On the other hand,

25:55

the State Department seemed to be leaning toward

25:56

the idea that you had to have Article Five tribunals.

25:59

Much of the JAG world and the post

26:02

initial years of the Bush administration.

26:08

Most of the critics would say at the very least

26:13

we should have done Article Five tribunals.

26:15

I'm not really one of them.

26:17

I don't think the Article Five tribunal

26:18

made a whole lot of sense

26:20

in that an Article Five tribunal's

26:22

to determine whether you're an unlawful combatant

26:23

or a prisoner of war,

26:26

not whether you're a farmer or a prisoner of war.

26:27

And that's really what it was being used for.

26:31

It was perfectly appropriate

26:34

I thought for the president to make a decision at his level

26:35

as to whether the Taliban,

26:39

that's a legal decision that gets made once and for all

26:40

on what's the Taliban status as an entity.

26:43

The individual people that might go

26:46

to an Article Five Tribunal,

26:48

that's where you would use an Article Five tribunal

26:50

if there were factual issues with regard to

26:53

and a specific individual.

26:55

So when I read the State Department's analysis,

26:57

if I'm remembering correctly inclined toward

26:59

having some Article Five tribunals,

27:03

that might be perfunctory in nature

27:05

and would all result in a,

27:06

they're not prisoners of war they're unlawful combatants.

27:08

I was bothered by that as well.

27:11

So my own analysis was something in between.

27:12

My first answer was I prefer states opinion over Justice's

27:17

that I went into my first meeting with Jim Haynes

27:22

sitting next to Chuck Allen

27:26

and he never even mentioned that he said,

27:27

but Bill has a different analysis

27:30

that basically reached the same conclusion

27:32

as the Justice Department one with,

27:34

but that is just using the language

27:36

of the Geneva Conventions,

27:37

determining that they weren't really an armed force.

27:39

I went down and talked to the intelligence people who knew

27:42

about the Taliban and learned about their,

27:44

learned about the Taliban as an entity

27:50

and was able to somewhat complex,

27:52

but come up with a rationale for

27:55

why I didn't think they qualified

27:57

under the Third Geneva Convention

27:59

as the army of Afghanistan,

28:01

whether or not it was a failed state.

28:03

Therefore you could determine

28:05

that the Geneva Conventions don't apply.

28:07

Slightly different though, than the more,

28:09

what later came out in the press too frequently,

28:13

and was what was part of the Justice Department's opinion.

28:16

That being, even if it's not a failed state,

28:18

they don't qualify because they don't meet the four criteria

28:22

under the Fourth Article of the Geneva Convention.

28:24

I don't think the fourth criteria,

28:27

the four qualifying criteria for a militia

28:28

are necessarily dispositive.

28:31

And I would've had a little more nuanced view that it's

28:34

those four criteria,

28:36

the carrying arms openly those things,

28:39

that those are indicators

28:43

of whether it's an armed force or not,

28:45

but they're not necessarily dispositive.

28:47

Cause it's, if this is a state armed force,

28:49

then it would that it would,

28:51

that would be irrelevant.

28:53

Interviewer

How can you say

28:55

they weren't a state armed force?

28:56

I don't wanna get into too much detail,

28:58

but I think people be interested because everyone

29:00

that's all we read is the four factors.

29:03

-

And I was always bothered when I saw the four factors

29:08

come out in press releases.

29:10

It was the most simplistic way to put it out there.

29:11

But I always thought it's the fact that they're not a state

29:14

it's like saying the democratic party

29:18

is a state armed force of the United States.

29:20

It's not, it's a political party.

29:23

The Taliban didn't actually the Taliban itself,

29:25

wasn't an army of its own right.

29:30

In fact, in many ways was perhaps assisting Al Qaeda.

29:33

The relationship between the Taliban and Al Qaeda

29:37

was much more complex than simply being

29:40

Taliban armed forces on behalf of Afghanistan.

29:43

And they clearly did not exhibit the kinds of things.

29:47

So those four criteria for militia

29:50

are criteria that go back in history

29:52

well before that the Hague Regulations

29:54

where you first see them and other places as

29:57

descriptors of a armed force,

30:02

they didn't meet those four criteria.

30:05

So I think that was very relevant.

30:07

But then there were other factors in that

30:08

they didn't view themselves as an armed force.

30:10

They didn't view themselves

30:12

as bound by the Geneva Conventions

30:13

as the state armed forces of Afghanistan

30:15

and their relationship with Al Qaeda was very different.

30:17

So all the factors together,

30:20

basically I'd say those four factors plus more.

30:22

And I had a classified document

30:25

where I came up with the various

30:27

factors I thought were also relevant.

30:28

The package deal I could say,

30:30

they don't qualify for a treatment

30:32

as a prisoner of war under the Third Geneva Convention.

30:35

That doesn't mean we shouldn't call them prisoners of war.

30:38

That's the legal issue.

30:41

One of my criticisms always has been

30:44

that sometimes the legal issues in both administrations

30:46

Bush and even today in the Obama administration,

30:50

sometimes the lawyers when asked a legal question,

30:52

the answer to the legal question just becomes the policy.

30:56

And I think that's a different issue

31:00

as to whether you can make a legal argument

31:02

with a straight face

31:05

and then whether it's the right thing to do.

31:06

And it's the latter question that should really drive.

31:09

Interviewer

Well to you what was the right thing to do?

31:12

-

It's easier for me to say it now in a more forceful way.

31:16

Cause I'm more convinced

31:19

that would have been the right thing to do then.

31:20

I did say it back then,

31:22

but probably not as forcefully.

31:23

I think calling them prisoners of war

31:25

would have made more sense,

31:28

not necessarily giving them all the,

31:29

all the kind of articulated rights

31:32

you might get under the Geneva Convention.

31:34

So I'm happy with them making it legalistics argument

31:36

that technically the Third Geneva Convention does not apply,

31:38

but in the civil war, the south,

31:42

read the Lieber Code.

31:45

It's all about prisoners of war.

31:46

That my point being prisoner of war term

31:49

predated the Geneva Conventions.

31:51

I don't think we should allow a treaty to steal

31:52

the English language and say ever.

31:56

Now that we have a treaty out there

31:58

that uses prisoner of war as a term of art,

32:00

therefore we can't use that term anymore.

32:05

We could have called them prisoners of war with

32:08

and have a small "P" small "w"

32:10

and if we later wanna make a legal explanation

32:12

as to why we're not giving them some particular

32:15

provision of the Third Geneva Convention,

32:17

make that argument then.

32:19

There was no malice in not using

32:21

the word prisoner of war.

32:22

I think what the administration was afraid of is that

32:24

that would cause too much confusion

32:26

that explaining the legal analysis.

32:29

So therefore they wanted to call them unlawful combatants.

32:31

And then no one would think that we have to apply

32:35

the Third Geneva Convention.

32:37

In hindsight, I think that was clearly wrong.

32:38

To this day, the fact that people say

32:41

you should prosecute everyone in Guantanamo.

32:43

Nobody would say that if we call them prisoners of war,

32:46

they just got it wrong.

32:48

And they cause more confusion than they helped.

32:51

It was an innocent mistake.

32:54

But at that time, without the benefit of 2020 hindsight,

32:56

they thought they were causing the least confusion.

33:00

Interviewer

But then enemy combatant morphed from...

33:03

-

So you wonder how we get from unlawful combat combatants,

33:07

to enemy combatant,

33:08

and what happened was there was a,

33:10

I can share my piece of it.

33:13

Enemy combatant is found in,

33:15

for instance, the Karen decision I believe.

33:17

I think unlawful combatant is as well,

33:20

or at least unlawful combat is found in historical records

33:21

with a number of other terms,

33:25

sometimes gorilla different different terms describing

33:26

a not a conventional combatant in a state on state conflict.

33:31

I think all those terms are perfectly valid.

33:37

I think what happened though is so in November,

33:40

the president has his order in November, 2001

33:42

saying we're gonna do these things

33:44

called military commissions.

33:46

Congress has a some kind of a hearing with,

33:47

I remember Ashcroft the Attorney General testifying

33:51

before I'm involved.

33:54

And it was pretty critical because it looked like

33:56

these were pretty Spartan rules for these commissions.

33:58

I get pulled into work on the actual rules that became,

34:02

I think they called it military commission order number one

34:05

or something,

34:08

basically let's flesh out the really Spartan thing

34:09

the president put out,

34:14

which was simply have full and fair trials.

34:15

That that's what it said.

34:17

And then we need to put some meat to the bones.

34:18

Those were genuine generally well-received in about,

34:20

I think it was March of 2002.

34:24

They were rolled out in a press conference.

34:27

And Jim Haynes, the General Counsel

34:29

was asked to speak to the press.

34:31

I remember being there part of the team

34:36

that helped prep him.

34:38

He hadn't been a law of war lawyer going into this.

34:39

We discussed the different provisions of law of war

34:42

and how they would apply.

34:46

And the question came up as to what would happen

34:49

if someone were acquitted by a military commission.

34:51

So technically we're not holding them

34:54

because they're criminals.

34:58

We're holding them there cause they're the enemy.

35:00

And even under the Geneva Conventions,

35:02

it contemplates for instance, taking someone to trial.

35:04

And then after they serve their time in prison,

35:07

they go back to their prisoner of war camp.

35:09

And I think the context was a little different.

35:11

I think we're talking about a trial perhaps

35:13

for something that occurred

35:14

post being a prisoner of war in most cases,

35:16

but it's less than clear.

35:18

But the point being you shouldn't say that

35:21

conviction or acquittal determines whether you

35:24

are released from Guantanamo

35:28

because that's a different issue.

35:29

The trial is a different issue than why there in Guantanamo,

35:32

there were not a whole lot of people who understood that

35:35

even within the administration at the time.

35:37

Their first goal was to get these

35:40

reasons to believe determinations done

35:41

that would justify holding them.

35:44

And it took a while to say, wait a minute.

35:45

This is a war.

35:47

And we've captured these people.

35:48

It's normal to hold and capture people in war.

35:49

You don't have to have these weird determinations done.

35:51

I mean, remembering back in that time,

35:56

this was a big thing that had happened

35:59

and no one really knew how it was gonna end up.

36:00

Nobody really knew who all the people

36:02

were in Guantanamo at the time.

36:04

So Jim Haynes gives the press interview.

36:07

The question does get asked.

36:09

He gives a perfectly appropriate answer

36:11

if I remember correctly.

36:13

And it was we'll look at it

36:14

and on a case by case basis,

36:15

the truth is if someone were acquitted

36:16

by military commission,

36:18

there's no way they were gonna continue to be held it.

36:19

But as a technical legal matter,

36:22

the lawyer's not gonna say that

36:24

because legally we could hold him because he's the enemy.

36:27

We just might have acquitted him

36:29

on whatever the particular offense is

36:31

that we charged him with.

36:32

So he gives us that answer causes

36:35

a little bit of a turmoil in the press.

36:37

And that weekend, if I remember correctly, Paul Wolfowitz,

36:41

the Deputy Secretary of Defense was going to go

36:45

speak on MacNeil/Lehrer or something like that.

36:47

And the rollout of these rules had just happened.

36:50

So he was probably gonna get

36:52

some military commissioner's questions.

36:54

So they stuck me in the room to help prepare him

36:55

for this rollout.

36:59

Nobody knew me.

37:03

I'm a low ranking Lieutenant Colonel.

37:04

I'm the lowest ranking person in the room

37:06

and I sat against the wall.

37:08

And he gives some practice answers.

37:10

And my point was,

37:15

one of the criticisms of that come out of the press was

37:18

how could they have fair trials?

37:20

And I'm thinking military commissions,

37:22

how can they have fair trials

37:24

if the president has already declared them

37:25

to be unlawful combatants

37:27

sounds like you're president of the United States

37:29

has already made a legal determination.

37:31

Of course, unlawful combatant does not mean

37:32

guilty of a war crime in any, by any stretch.

37:35

It's really just a way of categorizing

37:38

because they didn't use the word prisoner of war.

37:41

So they had to distinguish them.

37:43

Unlawful combatant was an accurate term.

37:45

Doesn't have anything to do with

37:47

whether they're guilty or not,

37:48

but it was causing confusion

37:49

to the average person on the street.

37:51

Wolfowitz in a number of his answers,

37:53

kept referring to them as unlawful combatants.

37:54

When he went around the room and asked for a critique,

37:57

I said, just be careful because

37:59

you kept using unlawful combatant.

38:02

If you could use it less frequently,

38:04

it's causing confusion.

38:05

You should be ready to answer the question if asked

38:07

that that doesn't the president's designating them

38:11

unlawful combatants does not mean there's

38:14

some prejudgment on their guilt.

38:16

And well, is there a different term I should use?

38:18

He asked and I said,

38:20

well, I've often thought maybe we shouldn't use that term

38:22

because it's not that it causes this confusion,

38:24

but it's probably too late to change it.

38:28

And Doug Feith,

38:29

who was the under Secretary for Policy then jumped in.

38:30

Yeah, we've been using that since November.

38:32

It's too late to change it. And I remember Wolfowitz says,

38:34

"No, no, wait, Doug, I disagree.

38:36

"I've never liked that term.

38:42

"What should we use?"

38:43

And it was kind of put on the spot said,

38:45

well, perhaps enemy combatant.

38:48

Cause it then designates them as

38:50

with the appropriate adjective for why we're holding them.

38:54

We're holding them because of the enemy.

38:57

Not because they've done something unlawful,

38:59

a lawful combatant or an unlawful combatant

39:01

can be held just as well.

39:03

I didn't know if that was,

39:06

I didn't have authority to make a decision like that.

39:09

So I quickly, after it was over left the room

39:12

went to Chuck Allen went to Jim Haynes said,

39:14

"Hey, this is what I said, is that okay?"

39:16

And everyone was fine with it.

39:18

They found it in Karen.

39:19

And that became the term that was then used.

39:22

Interviewer

And did you come up with that thinking,

39:26

having read Karen

39:28

or just because that made sense to you

39:29

to substitute the word enemy.

39:31

-

I'd like to say I was so well-versed

39:32

in things that I'd read Karen,

39:35

but no, it was logic.

39:36

It was English language.

39:37

I'm thinking in terms of what

39:39

the American people would understand.

39:41

And because prisoner of war

39:43

was kind of off the table already

39:44

that was the closest thing to...

39:46

And I wanna say one of the Supreme Court opinions

39:52

I'm not sure which one I was sitting in the galley

39:54

when the oral argument took place,

39:56

Justice Scalia was met by a defense counsel

39:59

who made some comment about how the Department of Defense

40:01

made up this term enemy combatant

40:05

so that they could justify holding people

40:07

doesn't even exist.

40:09

And I thought it was a wonderful answer from Justice Scalia

40:10

where he's of course he wasn't,

40:13

it wasn't an answer,

40:15

but it was a comment where he said,

40:16

I don't understand.

40:18

Enemy means it's almost like he had the dictionary

40:19

definitions in front of him.

40:22

Enemy means this combatant means this

40:23

isn't that what they are.

40:25

And I wanted to cheer because I thought,

40:26

yes, that's exactly right.

40:28

This wasn't a new term of art.

40:30

We're not claiming some legal authority

40:31

because we have this new thing.

40:33

It's just describing what they are.

40:35

And under the law of war,

40:37

you can hold the enemy who's fighting against you.

40:39

Certainly, if you can kill them, you can detain them.

40:42

Interviewer

So no one in the one in state went to you

40:46

and said, well, under the [Indistinct]

40:50

it's lawful or unlawful privilege,

40:53

well, I'm privileged and that this is a new term?

40:56

I mean, before you heard this conversation with Scalia,

41:00

no one really said--

41:03

-

People started criticizing it in the press all the time.

41:04

But at the time there was so much criticism

41:07

all over the place that you became thick skinned.

41:09

I was comfortable when people above me with more experience

41:14

than I had were okay with it.

41:17

Then it was no longer,

41:19

I was fearful for a little bit that I would be responsible

41:21

for some screwed up term that made no sense.

41:23

And in some ways I am,

41:27

but not really because it was quickly adopted by everyone.

41:28

And it was a fine term and it wasn't Karen.

41:31

Interviewer

Well that saying wasn't Karen

41:35

was a paragraph that had about a dozen different terms.

41:37

-

So a sloppy decision Karen is I would agree.

41:40

Interviewer

One thing I teach my students

41:45

is not to use different words for the same meaning

41:46

it's just what happened there.

41:49

-

And trust me as somebody who,

41:50

as I was coming up with the war crimes list in those days,

41:52

dealing with the Karen language and seeing how,

41:56

violation of the law of war, war crime,

42:01

all these terms using used interchangeably

42:04

in a way that really made it hard to work from.

42:06

Interviewer

So as an outsider,

42:11

people would see President Bush

42:12

talk about unlawful combatants in his memo,

42:14

in February 7th of 2002.

42:18

And all the sudden the term enemy combatants

42:19

showed up out of nowhere.

42:21

But I guess a Wolfowitz was the first person

42:23

to use that term at that.

42:25

-

In my recollection,

42:28

there may have been other things...

42:30

Just covered up my microphone.

42:31

I don't know if that affects it but

42:33

that was my experience with the term.

42:36

And I believe that was the first time it was used,

42:39

but there were a lot more meetings.

42:42

I was the military commission guy.

42:46

So at this point I had split,

42:48

I was initially involved in the prisoner of war,

42:50

that first memo that went from Judge Gonzales

42:52

as the White House Counsel to the president.

42:55

I had a lot of problems with that memo,

42:58

but that's a separate issue that the result was fine.

43:00

And then I kinda got out of the general law of war business

43:04

and began focusing on military commissions more directly.

43:08

So I became less involved in the subsequent decisions

43:12

as to which terms to use

43:15

and what the public affairs guys use.

43:16

Interviewer

Did you ever have conversations

43:18

with John Hugh or with David Addington

43:21

about some of these law of war issues?

43:24

-

Yes, I did.

43:27

I'm trying to think a couple of conversations

43:32

with John Hugh

43:35

and maybe a couple of conversations with David Addington.

43:36

Less with David Addington than John Hugh.

43:39

Interviewer

Did they listen to you?

43:43

Did they acknowledged that you've had what seems to me,

43:46

and I didn't know this, you had a greater depth.

43:49

I know very few people had

43:51

an understanding of international law.

43:53

It sounds to me like you had a greater depth of it,

43:54

than those two,

43:56

and those two had more knowledge

43:57

than almost anybody else in the entire administration

43:59

as an outsider.

44:02

-

I mean, I had a good relationship with them.

44:04

I remember at one point,

44:07

I don't remember the exact issue.

44:09

I was the lowest guy on the food chain

44:11

dealing with the actual document for military commissions.

44:15

I remember my first day on the job,

44:18

they showed me at one page whited out everything

44:20

and just had one half of a paragraph.

44:23

They wanted my legal opinion on it.

44:26

And I said, why you need to see the rest of the context.

44:27

And at time they didn't know me.

44:30

I didn't know.

44:32

I had been in law school with Witkoff

44:33

my kind of immediate boss and legal counsel.

44:35

I didn't know Jim Haynes at all.

44:37

So they were cautious at first, within a week,

44:40

I got the whole documents.

44:42

I share that because in those early days,

44:48

I was simply supplying things that would go

44:50

from me to Wit, to Jim Haynes,

44:53

that would then go over

44:55

to either John Hugh or David Addington

44:56

and it was only vicariously associated with them.

44:58

Later on, I remember a couple of times where Jim Haynes,

45:02

who was absolutely,

45:05

I have the highest respect for many of the people

45:07

who've been demonized since,

45:10

but I think he was absolutely trying

45:11

to do the right thing in most every case.

45:12

And he would send it back to me.

45:15

So David Addington would criticize something,

45:17

not fully understanding why I had put it in there

45:20

and there was a telephone chain between him.

45:22

And I remember one time, he said,

45:25

well, call David Addington.

45:26

And if you, if he'll agree with it,

45:28

then we can change this.

45:29

And I remember thinking,

45:32

isn't he like the Vice President's council or something.

45:34

I'm gonna call him myself.

45:37

I had to find his phone number,

45:39

or I had to talk to Wit how do I call this guy?

45:41

And I did.

45:43

And he answered the phone and he was a nice guy.

45:44

I can't remember the details of the conversation.

45:46

He was thoughtful, but I had a different background,

45:48

different experiences.

45:52

And sometimes I could tell they don't understand

45:53

why I'd put something in there.

45:56

There was this concept that less rules means shorter trial,

45:58

and that's not true at all.

46:03

And sometimes clarifying something in the rules

46:05

to prevent a bunch of wasted time in litigation

46:08

was actually a smarter way to go.

46:11

And that wasn't always understood.

46:13

There would be crossing out of rules.

46:14

John Hugh I became involved with him because I kept,

46:17

when coming up with the list of war crimes,

46:21

one of the issues was whether to include torture.

46:24

Now, I never had any involvement in, or awareness of,

46:27

waterboarding or things like that.

46:32

And to this day, I would have to thank, Jim Haynes,

46:33

for some of the things he kept me cut out of

46:37

that was being done in other as now,

46:39

we're all aware of CIA cases.

46:43

But I remember there was sensitivity,

46:48

including torture as a crime it commissions.

46:50

And I thought this is ridiculous.

46:54

I can't have all the grave breaches but one

46:57

that almost looks like,

47:00

and it was the issue was how it was defined.

47:02

And so finally the answer came back fine.

47:05

I gave the argument that this will look really ridiculous.

47:08

Yes, we don't know of necessarily any torture cases

47:11

we wanna try,

47:14

but geez, if I'm putting all the great breaches

47:15

and you should put them all in

47:17

and I came back with we'll call this guy, John Hugh

47:18

and if he goes along with it,

47:22

then you're okay.

47:27

And I eventually had that conversation as well

47:28

and described what our definition was.

47:31

Interviewer

But he didn't adopt the definition.

47:35

-

No, but I think at that point,

47:37

he might've already had a definition

47:38

that was being used

47:40

that I wasn't aware of.

47:41

Interviewer

So you didn't see his torture

47:45

before he released it?

47:46

-

No, no.

47:48

-

Or it was released.

Did it surprise you that his definition of torture was...

47:50

-

It didn't surprise me so much

47:54

because I had a conversation with him

47:55

and I'd had a conversation

47:57

with someone working for him as well.

47:58

And I don't wanna say things that aren't factually accurate,

48:04

cause I'm not totally sure how the conversation went,

48:06

but I remember being a little

48:08

there's something about organ failure or something that was.

48:10

That was in the memo later.

48:17

The thing that was bothering me was

48:19

where the mens rea was coming from?

48:21

Whether or not mens rea had to mean

48:23

that was his primary purpose

48:26

to cause this suffering as opposed to something else.

48:28

And I thought in criminal law,

48:31

that's like never that definition of a normal,

48:33

even specific intent.

48:37

That's kind of an extreme version of specific intent.

48:38

And I don't think we wanna use that

48:41

because we will never prosecute anyone then.

48:44

So I just remember a little bit of a conversation

48:46

along those lines,

48:49

but it was also clear that the military commissions

48:50

weren't going to be,

48:52

used in some way that would threaten people

48:55

in the CIA or anything else.

48:58

So it became a mood issue and we just moved on

48:59

and the definition stayed in.

49:01

That was one of the conversations.

49:03

I also had a bit of a debate with John Hugh on

49:05

whether you could have a crime against humanity

49:10

in our military commission rules?

49:12

Long story, not worth talking about,

49:15

but it was an issue that wasn't that important

49:17

from either of our sides.

49:20

But I remember Jim Haynes having us debate at once

49:21

and I swear I won,

49:24

but in the end we went the way John wanted to go.

49:27

And it frustrated me to no end it was minor issue,

49:30

not that important,

49:35

but I think that it's important to clarify that

49:38

crimes against humanity flow out of humanitarian law,

49:42

not human rights law.

49:46

And so I actually wanted to put them in

49:47

for reasons that they, he wanted to leave them out.

49:50

It just thought he had the argument backwards.

49:53

It was more of a principled argument

49:55

than what the result would be.

49:57

But that said, I've always been beholden to John Hugh.

49:59

Cause one day I saw him in the Pentagon

50:03

passed me in the hallway.

50:06

He said, Bill,

50:07

I saw the Supreme court cited you

50:08

an article you wrote way back in law school

50:09

in one of their opinions,

50:12

it was on church state relations.

50:13

I thought, wow.

50:15

And I went and looked it up.

50:16

Sure enough, I'm in like a string site.

50:18

I think it was Justice Thomas or something.

50:20

I said, I would have never known that

50:22

because this article was written

50:24

literally while I was a law student.

50:26

And I remember asking him,

50:28

just being amazed after that.

50:30

Cause I said, John, how did you ever notice that?

50:32

Well, I read all the Supreme Court opinions.

50:35

And you read the footnotes to,

50:40

and including the string sites.

50:41

And he said, well, I recognize your name.

50:43

But I've always been a little bit beholden to him

50:45

cause I would never know that I was cited an opinion

50:49

if I hadn't talked to him.

50:52

Interviewer

Did you get the sense, I think you did.

50:53

But I just curious how you reacted that you're,

50:55

you're obviously a real rule of law man.

50:59

I mean, that's what I'm picking up.

51:01

And obviously you were coming against people

51:03

who were much more like you described

51:06

actually politically oriented in the way they saw the law

51:08

or the rules that they wanted to work with.

51:12

I mean, was that frustrating to you

51:16

or did you just kind of defer to them

51:17

because they were politicians and you a lawyer if you will

51:20

a true lawyer,

51:24

you kind of accepted that distinction?

51:25

-

It's an interesting question.

51:29

There was a little, probably all of it.

51:32

I'm kind of role conscious.

51:34

When I'm being a lawyer, I'm being a lawyer.

51:36

And so in many ways, a lot of the arguments,

51:38

like I would agree with most all of the opinions

51:41

I saw that John Hugh drafted.

51:46

There were very few I would

51:48

actually disagree with as a lawyer.

51:49

Like legal opinions that were coming

51:52

out of the Office of Legal Counsel.

51:53

There were some,

51:54

I would disagree with the torture one, probably being one,

51:55

a couple others.

51:57

But there's a legal opinion as to where your

52:00

right and left lateral limits are

52:04

and what you can make a legal argument you can do.

52:06

I've always thought the law should, excuse me.

52:10

The law should be more expansive

52:13

than what you would actually do.

52:14

I always liked the idea that,

52:16

here's the threshold for what's illegal.

52:18

The United States will always be,

52:20

above or below it or whatever.

52:22

So we never have to talk about

52:23

whether we're violating the law.

52:25

We don't come close to violating the law.

52:26

The idea that common article three,

52:28

that was one of the debates that ended up getting

52:30

kind of resolved in a Supreme Court opinion.

52:32

I think it was Hamdan.

52:33

But of course we're gonna comply with common Article Three.

52:35

We're not even gonna come close to it.

52:38

Now then as a lawyer,

52:40

the lawyers didn't want to say Common Article Three

52:41

was customary international law.

52:44

That's more of a lawyer call that they don't.

52:47

Why limit ourselves if we don't have to?

52:50

We don't see a reason we have to say.

52:52

Well, there are political reasons that you ought to say it's

52:55

customary international law because

52:57

we're getting criticized resoundingly and we need allies.

52:58

But so that's where I started to see the policy worlds

53:01

and the legal worlds interacting,

53:05

where you have to be able to make decisions

53:07

that aren't necessarily simply bound by what,

53:08

by maximizing your legal flexibility.

53:11

So there was a little bit of frustration there,

53:15

but as a general rule,

53:17

there was so much outlandishly wrong criticism

53:18

on the legal side.

53:22

It was easy for me to defend the administration as well

53:23

because legally I didn't think

53:27

they had really stepped outside the lines.

53:28

These guys were unlawful combatants.

53:31

I'd rather call them prisoners of war.

53:32

I would have rather actually gone a step further than that.

53:34

Give them all the rights in the Third Geneva Convention.

53:36

Just say, as a matter of policy,

53:39

we're gonna treat them as if they're prisoners of war

53:41

in the Third Geneva Convention,

53:43

even though technically they may not qualify

53:45

that would have mooted so much of the criticism.

53:48

But I like, I didn't know at the time

53:54

there was a rendition program and like,

53:56

I would think almost all of our interrogation techniques

54:00

you could use within the Geneva Convention,

54:03

probably not waterboarding.

54:07

And I'm sure there are others as well, but would not.

54:08

And if I had been aware of those,

54:11

I might've understood better why they were making a

54:12

political decision not to go there.

54:14

There was also a rank piece of it though.

54:16

I'm not the smartest guy in the room.

54:19

I knew my own background.

54:21

I knew that there were things being discussed

54:24

in the White House that I wasn't privy to.

54:27

Interviewer

So what you're saying is really fascinating.

54:30

You're saying that because of the CIA Rendition Program,

54:31

they couldn't really go with what you were recommending

54:34

because they knew more than you did.

54:38

-

I don't know that.

54:39

In hindsight, I suspect that could have been

54:41

one of the factors as well.

54:44

And I think it wasn't just there wasn't like some devious,

54:45

we've got some rendition program that's gonna,

54:48

really treat people badly.

54:51

And therefore we wanna get away with something.

54:55

I don't believe that existed at all.

54:57

There was more of a we're in the early stages

54:59

of war that we don't fully understand.

55:02

We don't know how it's gonna end

55:04

when I would ask the question,

55:05

are we gonna prosecute the top 10 guys or get more?

55:06

Or are we gonna prosecute all 600?

55:09

That question was never answered while I was there.

55:11

So I was always myself as a lawyer trying to maintain

55:13

some flexibility as to how these things could be used

55:17

going into the future.

55:20

So I think there was a lot of,

55:21

again, it's easy to look back with 2020 and say,

55:23

that was a wrong decision.

55:26

That was a wrong decision.

55:27

At the time I was there while

55:28

they were making the decisions.

55:30

And what I saw was honest Americans

55:31

trying to do their best to get it right.

55:33

Sometimes making judgment calls

55:36

that were probably a little off.

55:38

Interviewer

So in those early days,

55:41

you were there the day before the first plane load

55:43

came to Guantanamo,

55:45

did you know much about Guantanamo at that time?

55:47

-

Nothing at all.

55:50

I guess I knew a little bit of former boss

55:51

I had had in the Marine Corps

55:54

had been a lawyer at what's now was probably

55:55

still called Southern Command

55:59

when there was a Haitian refugee issue.

56:00

And ironically, the camp where they put the criminals

56:02

in that Haitian refugee situation was the first camp

56:06

they put Guantanamo detainees Camp X-Ray.

56:09

So I did get to go visit Guantanamo a couple times.

56:12

-

Early on?

56:15

-

Early on.

Interviewer

And what did you expecting?

56:17

And what did you see?

56:19

-

I remember multiple things.

56:22

I remember when I saw X-Ray

56:26

I thought, I wouldn't wanna be here,

56:29

but on the other hand there was absolutely

56:32

no intent of you know,

56:34

the Marines lived in more austere conditions

56:35

than they detainees did.

56:38

There was absolutely no intent to make their conditions bad.

56:40

This was the best they could come up with

56:43

on the short notice they had,

56:45

and I was looking at it in terms of how are we going to,

56:49

how are we gonna move forward with trials?

56:53

Who are we gonna need an investigative team here?

56:56

How's this all gonna work?

56:58

What's the relationship between intelligence collection

57:00

and collection of evidence for criminal trials?

57:02

All those kinds of things.

57:05

I remember the medical care

57:06

they were getting was superlative.

57:09

I was amazed by how much there were so many things

57:10

that were being done right.

57:14

Painting the direction of Mecca on every cell was like,

57:16

we have to do that before they get there.

57:19

Everyone's gonna get a Qur'an.

57:21

So there was a lot of effort

57:22

to make the detention conditions

57:26

as appropriate as you could.

57:28

On the other hand,

57:30

the claims that they're better off there than in a cave.

57:31

I thought, no,

57:33

I'd much rather be in a cave in Afghanistan

57:34

than in this cell that was very small.

57:36

Well, fortunately that was just an initial place.

57:42

I think for like the first three months

57:45

they were in Camp X-Ray

57:47

and they were moved to a better camp, Camp Delta.

57:48

Yet to this day

57:53

if you go online and look up Guantanamo

57:54

and look for a picture,

57:59

you're gonna get a picture of Camp X-Ray.

58:00

A place they were for 90 days out of the last 11 years.

58:02

And that's what the press always puts in there.

58:05

Interviewer

Did you know that the people have

58:10

the people who came to Guantanamo

58:13

many of them were purchased

58:15

from Afghanian Pakistani soldiers

58:16

who first cease them.

58:20

And then apparently that,

58:23

so the story goes a lot of detainees told us they were sold.

58:24

-

I always thought that that was a possibility.

58:27

I assume it's a possibility to some degree in every war.

58:31

I hate to use the term,

58:39

cause it sounds cavalier,

58:40

but it's a collateral damage,

58:41

incidental injury issue while you're fighting a war,

58:42

you can't necessarily sort all those things out perfectly.

58:45

That's the nature of war.

58:48

That's why I always thought when people would talk about

58:51

Article Five tribunals

58:53

yeah, we should have something like that.

58:54

But Article Five is prisoner of war, unlawful combatant,

58:57

and I don't, and they're all unlawful command.

59:00

So I'm fine with that.

59:03

What we are probably in need of is some sort of a hearing

59:04

to determine whether they're farmers that,

59:07

that get scooped up with some kind of illegitimate means.

59:10

It was early on that I started realizing

59:13

how little we knew about them.

59:15

Prior to my first trip to camp

59:17

there was a trip by higher ranking people, Jim Haynes,

59:19

I think Addington, Gonzalez those guys.

59:22

They came back and I got a piece of paper

59:26

with my first tasking, which was,

59:29

get the president a one-page dossier

59:33

on everyone in Guantanamo,

59:35

kind of have two lists, Taliban, Al Qaeda.

59:37

And we're gonna submit them and get these guys designated

59:40

so that they can be held.

59:43

And I literally got on a phone and I looked up

59:44

Guantanamo and a DoD phone book.

59:48

I think I had the number to the Navy exchange down there,

59:50

NCIS office and started,

59:55

do you know about any detainees there?

59:56

And of course having not been there before,

59:58

I didn't know how big it was or how related the camps were.

1:00:01

I soon realized I wasn't gonna meet the Wednesday deadline

1:00:05

of getting these dossiers to the president.

1:00:08

And in fact, over the next couple of months,

1:00:10

I realized we don't have nearly the information

1:00:13

that we would like to have.

1:00:15

I think again,

1:00:17

I think well-meaning people attempted to screen them

1:00:19

as best they possibly could.

1:00:22

There was no malice whatsoever,

1:00:23

but we're at war and,

1:00:25

and so they had to get them there.

1:00:29

And that's when I started saying, well, wait a minute,

1:00:32

why do we really have to have these dossiers?

1:00:33

One, we don't wanna give something

1:00:36

to the president that we not

1:00:37

aren't really sure of what we've got

1:00:38

on this piece of paper yet.

1:00:40

And it's a war.

1:00:42

You can hold people in war.

1:00:43

That's the point.

1:00:45

If you can kill them,

1:00:45

of course you can capture them and detain them.

1:00:46

And ultimately we ended up using the dossier

1:00:50

for the reason to believe determination

1:00:53

that kicked off the first military commissions.

1:00:55

So they did use it for that kind of second prong

1:00:57

of the president's first order,

1:01:01

when you try them,

1:01:02

try them by military commission,

1:01:03

but they didn't use it for the first prong,

1:01:04

which was when detained, detained by DoD.

1:01:06

Because there was no legal reason to.

1:01:09

Interviewer

Were involved in

1:01:15

choosing some of the first people

1:01:16

that were gonna be prosecuted by the military commissions?

1:01:17

Because the way you're describing it,

1:01:21

I mean, apparently they chose people

1:01:22

who spoke English and I heard,

1:01:24

politically they chose him because

1:01:26

that would look better to the public

1:01:28

if these were English speaking detainees?

1:01:30

-

No, that wasn't why.

1:01:33

So I have to be careful here cause I

1:01:40

I'm not sure all of what's classified.

1:01:44

I don't think anything in this arena is,

1:01:45

but I'll be more careful.

1:01:47

The original rationale for the two English speaking people

1:01:49

was related to the fact that there were

1:01:56

ongoing Justice Department cases

1:01:58

that could be assisted by using these people as witnesses.

1:02:00

Well, it's hard to use them as witnesses

1:02:04

if they're down in Guantanamo Bay.

1:02:06

And there was an attempt across the administration

1:02:09

to have some kind of some consistency.

1:02:13

And so we're not gonna just pick and choose people

1:02:15

that go every which way based on our own convenience.

1:02:18

And so everyone,

1:02:21

who's not an American who's captured

1:02:22

as part of the war effort is in Guantanamo.

1:02:24

And we don't just turn them over to be prosecuted

1:02:26

by the Justice Department

1:02:29

or where are we gonna draw the line

1:02:30

as to when a commission gets used

1:02:32

when Article Three court gets used

1:02:33

and those things were not decided yet.

1:02:34

So the idea is, well,

1:02:37

they can certainly use them as a witness

1:02:38

once the commission trial was over with.

1:02:39

So the goal was to have a guilty plea situation.

1:02:41

Cause there was no real desire to,

1:02:50

get much pound of flesh out of these guys.

1:02:53

They were fairly low level

1:02:56

and there was also a piece going on

1:02:59

that we haven't talked about

1:03:02

who was the prosecutor that would prosecute them.

1:03:03

I didn't want to be the prosecutor.

1:03:05

I made that very clear to Jim Haynes.

1:03:07

He actually had me interviewed for it, put on my uniform.

1:03:10

But I was too low ranking.

1:03:13

I thought it needed to be at least a Colonel.

1:03:16

In the early days they were talking about

1:03:18

everyone from asking Rudolph Giuliani to do it to others.

1:03:20

It wasn't exact,

1:03:24

but at least it needed to be a full Colonel I thought.

1:03:25

And so, but because they couldn't agree on anyone,

1:03:30

I was like effectively the acting chief prosecutor,

1:03:34

which was going to cause in my mind,

1:03:37

a bit of a conflict of interest,

1:03:39

if and when it came up,

1:03:41

because I was also creating the rules

1:03:42

and establishing the panels themselves.

1:03:44

So I knew that that wouldn't play out well in the end.

1:03:47

And I just had to be very cautious of it

1:03:51

and everything I would do,

1:03:52

I was being careful to recuse myself

1:03:53

if I saw any future conflict.

1:03:57

But at the time I was it,

1:04:00

and we had just hired a couple more prosecutors.

1:04:03

We needed to get these cases into court.

1:04:06

I saw that as a triggering mechanism

1:04:08

to get the trials going.

1:04:10

You had two dynamics happening.

1:04:12

You had the White House

1:04:13

that had pushed this military commission,

1:04:14

military tribunal effort.

1:04:16

Then you had Secretary Rumsfeld, who's fighting a war.

1:04:19

And he appropriately says, look, I'm fighting war right now.

1:04:22

I'm not America's jailer.

1:04:24

And I don't wanna be involved

1:04:26

in prosecuting a bunch of people.

1:04:28

And we're about to go into Iraq.

1:04:29

So I sat in the middle of this kinda vortex or whatever.

1:04:33

And I'm in charge of the kind of detailed guy on the ground,

1:04:38

getting military commissions up and running.

1:04:43

And I wasn't even sure why we should necessarily

1:04:45

go forward during a war with trials.

1:04:49

There were reasons pros and cons on both sides,

1:04:53

but if that's your job, you wanna get it going.

1:04:55

And this was a triggering mechanism.

1:04:57

The Justice Department wants these people

1:04:59

let's go ahead and push them into trial.

1:05:01

And my concern was we hadn't hired defense counsel

1:05:03

and my fear was defense counsel

1:05:05

are gonna wanna become famous.

1:05:06

They're gonna wanna become the guy

1:05:09

like they did become.

1:05:11

They're gonna wanna be on,

1:05:13

some magazine is the who defended--

1:05:14

Interviewer

As a civilian or military defense consult?

1:05:17

Even military wanna be on the cover of a magazine.

1:05:21

-

They have been.

1:05:25

So I didn't really know that

1:05:29

until the personalities,

1:05:31

you don't know what's gonna drive them.

1:05:32

My intent would have been to make sure

1:05:33

these guys get such a good deal,

1:05:35

that they there'd be no reason for them not to plead guilty.

1:05:37

Cause we weren't really trying to punish them.

1:05:40

The real goal was to,

1:05:42

and we would use it as a way of testing the system.

1:05:43

I also thought getting someone into trial

1:05:46

was absolutely vital.

1:05:48

We had gone in announced these courts, the press,

1:05:50

and everyone else was criticizing them resoundingly,

1:05:52

but there had been no trials.

1:05:56

I mean it kind of throughout history,

1:05:57

when have you heard a court system

1:05:59

so thoroughly criticized

1:06:00

yet they haven't had a single trial.

1:06:03

They were being criticized for what

1:06:04

theoretically could happen

1:06:06

because a rule didn't prohibit

1:06:08

some horribly bad injustice from occurring.

1:06:10

The press and the defense bar

1:06:13

and everybody were saying,

1:06:15

these kangaroo courts are gonna allow

1:06:16

all these things to happen.

1:06:19

And I thought, if you just do a trial,

1:06:19

then you can criticize the actual trial

1:06:22

and we'll make sure none of those things happen.

1:06:25

You don't have to have rules to preclude every bad thing.

1:06:27

In some ways I think full and fair trial

1:06:30

was a perfectly appropriate

1:06:32

standard full and fair trial means

1:06:33

it's gonna be full and fair.

1:06:35

So we'll not allow those horrible things to happen.

1:06:36

We were fighting, a phantom hypothetical court.

1:06:40

And so I thought a real court would help.

1:06:45

So let's try these two guys.

1:06:47

But if the defense council that takes these cases,

1:06:49

which I've seen in my time as a prosecutor,

1:06:53

sometimes doesn't truly look out

1:06:55

for his client's best interest,

1:06:58

but is looking to become famous.

1:06:59

Then it will ruin everything because he's gonna wanna

1:07:02

just fight all the theoretical issues.

1:07:04

And the guy will never get through the trial

1:07:07

and he won't be available as a witness

1:07:09

for the Justice Department.

1:07:10

So I wanna give him a deal that makes it very low sentence,

1:07:12

guarantees it in its subsequent case.

1:07:15

If the entire system is thrown out or something like that,

1:07:17

he gets the benefit of that.

1:07:20

So there's no reason not to plead.

1:07:23

That was the way we went into it.

1:07:28

And then I asked for four other cases,

1:07:29

somewhat to camouflage the two we were gonna try.

1:07:33

Interviewer

Because the two you wanted for witnesses

1:07:38

and the other four you didn't necessarily?

1:07:40

-

Right. The other four were just the ones

1:07:42

that were the most developed,

1:07:44

but they weren't necessarily gonna be prosecuted at all.

1:07:46

Ironically, those are the cases you've heard of Hamdan.

1:07:48

[Indistinct]

1:07:52

I don't remember all the names.

1:07:54

Interviewer

Who are the two?

1:07:55

Can you tell us or you rather not?

1:07:55

-

I think it's known Begg and Abassi

1:08:00

we're the two English ones.

1:08:03

Interviewer

What about David Hicks?

1:08:06

You weren't looking at him before.

1:08:08

-

And some of the issues associated with that

1:08:10

might still be classified, I don't know.

1:08:12

But he was also one of the six then.

1:08:14

So he was gonna get added to the mix

1:08:16

and he would get tried for--

1:08:19

Interviewer

Would there be also possibly

1:08:21

witnesses for the DoJ?

1:08:22

So the other four or not--

1:08:24

-

I don't think necessarily.

1:08:26

They were not English speaking

1:08:28

would have been much harder to get them up and running.

1:08:30

Hicks was, but the other three then were not.

1:08:32

And so we started going forward with those six

1:08:37

and the idea was that if we just had the two,

1:08:42

then the press would be all over the defense council

1:08:45

for those two.

1:08:48

And they would be pressured

1:08:49

to not deal with the government at all.

1:08:51

Instead, we're gonna throw out

1:08:52

these kangaroo courts in toto

1:08:54

and that would not do anyone any good

1:08:59

from what I could tell them.

1:09:00

That is kind of ironic then

1:09:03

when I see Hamdan going to the Supreme Court

1:09:04

and I'm thinking we weren't necessarily even gonna try him.

1:09:06

And it wasn't gonna be for the charge they tried him with.

1:09:10

So we started working through those

1:09:14

and at the time they had not yet

1:09:16

selected the chief prosecutor.

1:09:18

So I was in this awkward position of assigning it

1:09:20

for some of the prosecutors in the office to start working.

1:09:23

And then I fact,

1:09:28

I think the day the president signed the reasonable leave

1:09:28

is my last day in the office.

1:09:30

Interviewer

Weren't you concerned that

1:09:39

I mean, all the criticism about the military commissions,

1:09:41

how come it was not really made public,

1:09:48

how come there were no really statements

1:09:49

from the government saying,

1:09:51

look give us a chance to try it

1:09:52

and then challenge it because the evidence is tainted?

1:09:53

Why was that not well done by them?

1:09:59

-

It was poorly done.

1:10:02

I mean, at some point I actually

1:10:07

became like a spokesman of sorts,

1:10:08

always on background because there was a great reluctance

1:10:10

that I saw in the administration

1:10:16

to engage with the press on some of these things.

1:10:18

And it was to the extreme, in a harmful way.

1:10:21

I remember at one time, the New York Times wrote

1:10:25

an article that was inaccurate.

1:10:29

It was just factually inaccurate.

1:10:31

Jim Haynes was the guy who

1:10:33

it was actually about what was in his head.

1:10:35

What were the plans of Jim Haynes was the article

1:10:37

and it was wrong.

1:10:39

And I had been the chair of a meeting in a service that had,

1:10:40

I absolutely knew the article is inaccurate.

1:10:43

Someone had leaked it to the press

1:10:46

who was unaware of the current state of play.

1:10:49

It was an issue of whether we were gonna

1:10:53

have a status offense,

1:10:54

call being a member of Al Qaeda, a crime.

1:10:56

There's a debate, whether you should do that or not.

1:10:58

Like they did in Nazi Germany,

1:11:01

didn't play out very well in Nurnberg,

1:11:02

but it's a debatable issue.

1:11:04

We had the debate.

1:11:05

We decided not to do it.

1:11:06

After the decision not to do it came out

1:11:08

The New York Times wrote that they thought

1:11:10

we were gonna do.

1:11:12

And then they were gonna write

1:11:13

an editorial criticizing that.

1:11:15

We find this out from the Public Affairs Office.

1:11:17

Because one of the few times I saw a willingness to engage

1:11:19

cause a Public Affairs push and said,

1:11:22

really well, we know about this in advance.

1:11:24

You ought to just call them up and try to,

1:11:26

prevent this from happening.

1:11:30

Cause it's just gonna be bad press.

1:11:31

It's totally inaccurate.

1:11:32

And I was on the phone when Jim Haynes called

1:11:34

the New York Times, editorial board said,

1:11:37

your factual predicate is wrong.

1:11:43

And they would say, well, we disagree with you,

1:11:46

but I was frustrated.

1:11:48

I thought, but I'm the guy.

1:11:50

I mean, who is your source

1:11:52

that's not the General Counsel of the Department Defense.

1:11:54

And they said, well, we think we have good sources.

1:11:57

You're wrong in your factual predicate.

1:12:01

And if you write an editorial about it,

1:12:02

it's just gonna be off base.

1:12:04

They wrote the editorial anyway.

1:12:05

I thought this is just absurd.

1:12:07

You just can't trust the press at all.

1:12:09

But that was one of the few times they did engage.

1:12:12

And I think we wrote a response to the editorial

1:12:16

or us a different one.

1:12:19

The response among lawyers,

1:12:20

there was the two different worlds

1:12:22

of a Public Affairs Office

1:12:24

that's maybe more attuned and realizing you gotta,

1:12:25

you gotta engage with them to some degree.

1:12:28

And then there was the lawyers

1:12:31

who are really only worried about litigation.

1:12:32

You asked me earlier about involvement as a rule of law guy

1:12:35

and what was it like in this administration?

1:12:38

I think one of the issues was I was a guy

1:12:40

that was familiar with international law.

1:12:42

And you didn't have a whole lot of people like

1:12:44

that that were political appointees.

1:12:46

You tended to have people who were focused on litigation

1:12:48

and what was gonna happen in the Supreme Court.

1:12:50

Ironically, we lost in the Supreme Court,

1:12:52

but some of the times when I was critical

1:12:54

of a U.S. government position,

1:12:57

I was critical because I was worried about

1:12:59

what it would do to our public diplomacy.

1:13:01

They were saying,

1:13:04

but we're worried about how the Supreme Court

1:13:05

is gonna handle this.

1:13:07

Okay. I still can't you put a secondary argument in here

1:13:08

that even if this wasn't true,

1:13:12

everything we're doing is consistent with law of war

1:13:14

and those arguments didn't get in there.

1:13:17

Ironically, we then lose the litigation,

1:13:19

the Supreme Court and number of the cases anyway.

1:13:21

But similarly, we weren't willing to engage

1:13:24

on the public diplomacy side

1:13:27

because the commissions thing

1:13:29

and the law of war detention thing, they were legal issues.

1:13:31

So the public affairs guys weren't really allowed to engage

1:13:34

without authorization from the lawyers.

1:13:37

And it took forever because you had

1:13:39

I don't mean conservatives like right-wing conservatives,

1:13:41

but you had a regular lawyerly conservatism of,

1:13:43

why say something that we don't really fully know

1:13:48

all of its consequences.

1:13:52

Let's say nothing.

1:13:53

Kind of like you do

1:13:54

if you were litigating in front of a judge,

1:13:55

that's the way I would be to,

1:13:56

I would say, I'm not gonna comment to the press.

1:13:57

I don't want something to leak out that as a general rule.

1:13:59

I want my evidence presented in the courtroom

1:14:02

and that's kind of way the lawyers were,

1:14:04

and it killed us with the, our allies.

1:14:06

Interviewer

So I have one question is

1:14:12

when you were gonna prosecute the two and then the four,

1:14:15

why did that not go forward very well?

1:14:17

Is that also a political legal thing

1:14:21

or what happened with all?

1:14:23

I mean, I know for me as an outsider but...

1:14:25

-

So I think some of the issues might

1:14:28

still be classified related to that,

1:14:32

but we were basically engaged with the British government

1:14:34

who was our ally

1:14:39

to make sure that we were aligned

1:14:41

and I think parts of it.

1:14:43

And actually at the time that I left that

1:14:44

when I had my last day, we've only talked,

1:14:46

ironically, I spent a year and a half

1:14:49

with the Bush administration,

1:14:51

three and a half or four and a half

1:14:52

with the Obama administration.

1:14:54

But that my last day was the day

1:14:55

the president designated them.

1:14:58

I knew at that time,

1:15:00

the cases were unlikely to go forward for multiple reasons.

1:15:01

But one that became clearer in subsequent days was

1:15:06

the interactions between governments.

1:15:10

And I believe we eventually turned them back over

1:15:12

to the United Kingdom.

1:15:16

Interviewer

What did it leave the first time?

1:15:17

Or, I mean, what month or--

1:15:19

-

I wanna say six live a month

1:15:21

and I don't remember why that's in my head.

1:15:24

It's either June or July--

1:15:25

-

2003?

-

In 2003, yeah, early summer.

1:15:28

And that's when I was heading to the War College.

1:15:31

I had been kept back from the War College for a year

1:15:33

and I didn't wanna be kept back in another year.

1:15:37

Interviewer

I mean, you seem so smart

1:15:42

and so knowledgeable,

1:15:43

you must have known that there were gonna be problems

1:15:45

with the military commissions

1:15:48

that are gonna be challenged

1:15:49

and ultimately weren't Hamdan,

1:15:50

did you not expect that this would happen?

1:15:53

I mean, you left relatively early even before a suit,

1:15:57

but I just wondered what you kind of thought just

1:16:01

even if you didn't express it.

1:16:03

-

Again, pretty complex legal decision in Hamdan.

1:16:08

I expected there were gonna be problems

1:16:13

not related to the Supreme Court litigation.

1:16:16

I thought I thought there would always

1:16:18

be Supreme court litigation

1:16:19

that would address a lot of issues.

1:16:20

I always thought the earlier we can get in the better

1:16:22

and getting a trial done,

1:16:25

in hindsight with a big mistake,

1:16:27

not doing a military commission early on.

1:16:29

If you think it's appropriate

1:16:31

for these exigent circumstances,

1:16:33

get one done even if you make mistakes.

1:16:34

And that didn't happen.

1:16:36

Interviewer

Can interrupt for a minute?

1:16:38

Cause it sounds to me like if you were the prosecutor

1:16:39

and you would've gotten one done,

1:16:41

you would have done it right.

1:16:43

That's what you're kind of telling us, right?

1:16:44

You would have done it to that,

1:16:46

even though the law might allow you

1:16:47

to bring in tape evidence you wouldn't have

1:16:49

and that would have told the public look,

1:16:51

they're doing it right.

1:16:53

Is that what you're saying?

1:16:54

-

Well, yes, but of course I'm not gonna, no,

1:16:56

I intended to do it wrong and abuse someone's rights,

1:16:58

but yeah--

1:17:00

-

No, exactly what

you've been saying all along.

1:17:01

-

No, I absolutely believe we would've gotten it right.

1:17:02

And, ironically, what I really wanted to do this

1:17:05

is like a little bit of a inside baseball here.

1:17:09

When I wrote the rules.

1:17:12

If you look at the military,

1:17:13

I don't know what it stands now,

1:17:14

but the military commission organization,

1:17:16

Office of Military Commissions,

1:17:19

the Chief Prosecutor needed to be a Colonel.

1:17:21

The Chief Judge could be a Lieutenant Colonel or above

1:17:23

because I kind of wanted to be the first Chief Judge. Why?

1:17:26

Cause I was worried about that first

1:17:29

judicial opinion that

1:17:31

it could fill in all the blanks that were

1:17:33

left out of the rules on some of the difficult issues.

1:17:36

And that would have it going into history

1:17:39

with the kind of right basis.

1:17:41

It became clear from the personalities involved,

1:17:45

the dynamics of fact that we were in the midst

1:17:48

of invading Iraq and things like that,

1:17:50

that military commissions wasn't gonna go forward

1:17:52

in the immediate future.

1:17:55

The Hamdan issues though,

1:17:57

I don't necessarily agree

1:17:58

with the Supreme Court's opinion on Hamdan.

1:18:00

I think as a political matter,

1:18:02

the fact that the executive branch seemed to have total

1:18:03

authority here was a little bit problematic,

1:18:08

maybe a little more engagement with Congress,

1:18:10

but Congress wasn't reaching in to help.

1:18:12

They were not attempting to the,

1:18:14

the president had to do something.

1:18:18

So I understand the way the case came out,

1:18:20

where it was viewed as a violation of Common Article Three,

1:18:23

because it didn't use the regular trial system.

1:18:27

Or I don't know what the exact terminology is.

1:18:31

I haven't reviewed the opinion in years,

1:18:33

but it effectively has to be fixed by act of Congress.

1:18:36

Maybe that was a good idea,

1:18:42

but I'm not sure that the legal,

1:18:44

the constitutional aspects of it were that

1:18:46

made that much sense.

1:18:49

In fact, I think it was Justice Thomas

1:18:49

wrote a dissent regarding what

1:18:51

the historical antecedents to the UCMJ were

1:18:55

and how they weren't really trying

1:18:59

to make commissions like courts martial.

1:19:00

It was let's make the different army, navy and air force

1:19:03

courts martial like each other.

1:19:05

And the idea that the legislation had to somehow

1:19:07

explain differences from courts martial.

1:19:11

I didn't think that was really so I didn't think,

1:19:13

and I didn't think any stretch

1:19:15

we were violating Common Article Three.

1:19:17

It always bothered me.

1:19:19

You saw a couple editorials coming out

1:19:20

after the Hamdan decision.

1:19:21

That's what we've been saying all along.

1:19:24

No, it was not.

1:19:25

I was there during all the criticisms

1:19:26

of military commissions.

1:19:29

I did not ever hear someone saying

1:19:31

we're violating Common Article Three

1:19:32

of the Geneva Convention

1:19:34

that was always seen a threshold that was,

1:19:35

whether you're above or below the U.S.

1:19:38

is not approaching violating Common Article Three

1:19:40

of the Geneva Convention.

1:19:42

It's a pretty hyper-technical argument Hamdan uses

1:19:43

to get to that violation.

1:19:46

So I did not see those problems.

1:19:47

The other one I didn't see is the conspiracy.

1:19:49

I think that was a bogus decision.

1:19:52

If you look at the first military commission

1:19:54

elements of crimes,

1:19:56

it was not conspiracy the way it was charged

1:19:58

in the Hamdan case,

1:20:00

we pulled it from Nuremberg.

1:20:01

It was an enterprise theory of liability

1:20:03

that had been used in in the Tadic case,

1:20:05

before the ICTY

1:20:08

and had been used in some of the Nuremberg cases.

1:20:09

We did that research.

1:20:12

We pulled an enterprise theory of criminality

1:20:14

and built it into what was like a conspiracy charge.

1:20:17

But realizing those courts have to use common law systems

1:20:21

and civil law system.

1:20:25

So conspiracy doesn't find its way into

1:20:26

a lot of the foreign court systems.

1:20:28

So they have a slightly different version of it.

1:20:30

We adopted their version of it,

1:20:33

and it was literally sitting around the room.

1:20:35

I was chairing it, army, navy, air force committee,

1:20:36

looking at the crimes.

1:20:40

And we said, should we put short titles on these crimes?

1:20:41

Just like we'd done in the ICC.

1:20:44

We came up with the elements

1:20:45

and then we came up with short titles

1:20:47

to use in conventional day-to-day work.

1:20:48

And what should we call it? Should we call it conspiracy?

1:20:53

It's not really conspiracy.

1:20:56

It's more of an enterprise theory of criminality.

1:20:58

I don't know if that was the actual term we were using,

1:21:00

but something like that.

1:21:03

And everyone said, let's just use the word conspiracy,

1:21:04

but we all, we on this committee

1:21:07

are well aware of the distinguishing features between,

1:21:09

there's conspiracy in Article Three courts,

1:21:13

a little different than conspiracy in a court martial.

1:21:15

And it was clearly different than what we were using.

1:21:18

The irony that drives me crazy is

1:21:21

when they finally charged Hamdan,

1:21:23

someone who came after,

1:21:25

looked at the conspiracy charge

1:21:27

and changed it into a regular use.

1:21:29

Ironically the desire to make it more like

1:21:32

military courts martial caused the conspiracy

1:21:36

to turn into a normal conspiracy.

1:21:40

Thus the Supreme court comes out and says,

1:21:42

that's not a war crime.

1:21:44

I think that's even a little bit of a twist.

1:21:46

But at the time that was one of the criticisms

1:21:48

by all the people who were not happy

1:21:50

with the system in general,

1:21:52

they weren't happy with Guantanamo in general.

1:21:54

So they weren't happy with military commissions

1:21:56

in any argument they could come up with

1:21:57

as to why there was a legal violation.

1:21:59

Interviewer

That's fascinating.

1:22:03

That is really fascinating.

1:22:04

I teach ICL. So that's really interesting.

1:22:06

So what about material supportive terrorism?

1:22:09

How did that get?

1:22:12

-

That was put in by statute.

1:22:13

I wouldn't have had that put in.

1:22:15

When I came up with the I and in a team of other people,

1:22:17

but I chaired this thing that came up

1:22:24

with the war crimes in the crimes against humanity.

1:22:25

And the irony you asked about my involvements

1:22:28

with David Addington,

1:22:32

I remember one of the problems was

1:22:32

I pulled it from the International Criminal Court

1:22:34

because I had worked on those elements

1:22:36

and we were happy with them.

1:22:38

And they had been vetted very thoroughly

1:22:39

as we were negotiating that.

1:22:41

So couldn't make them that different.

1:22:42

We tried to change words as we,

1:22:44

anything that was debatable in the ICC days,

1:22:47

we changed the way we wanted it

1:22:50

for what we thought was right.

1:22:51

Not the way we wanted,

1:22:53

I don't want it to sound like we were just trying

1:22:53

to do what was expedient.

1:22:56

We were trying to do the right thing.

1:22:58

And we came up with a whole list of crimes.

1:23:00

I lost track of your question.

1:23:03

Interviewer

Material supportive terrorism.

1:23:04

-

But we couldn't justify material supportive terrorism

1:23:06

cause that wasn't a war crime.

1:23:08

And so after that people would talk about

1:23:11

military commissions are so much better

1:23:15

than Article Three courts.

1:23:16

And I would say, well, yes,

1:23:17

they're designed for the war time scenarios

1:23:20

we're dealing with,

1:23:22

but they're not necessarily better because,

1:23:23

if I could prosecute someone

1:23:26

for a material supportive terrorism,

1:23:28

that's a much easier charge to prove that any of the crimes

1:23:30

that I'm gonna have to prove here

1:23:34

in the military commission context.

1:23:35

And I remember frequently saying that because it was true.

1:23:37

And then when they had to come up with the statutory,

1:23:40

I think somebody must have remembered that

1:23:44

and added it to the mix.

1:23:46

And it puts us where we are right now,

1:23:49

where I'm not sure if I have a strong opinion

1:23:51

on whether a statutorily created crime of material support,

1:23:55

whether that's a viable or not.

1:24:00

I think it's a different issue.

1:24:03

It wasn't viable when I was pulling it from

1:24:04

the laws and customs of war.

1:24:07

Cause it clearly was not part of that.

1:24:12

Whether Congress can add to the laws and customs of war

1:24:13

and military commission,

1:24:16

I think that's a different issue that the Supreme Court

1:24:17

is gonna have to deal with.

1:24:19

Interviewer

So one more thing about the Hamdan case,

1:24:20

why do you think it was so important to Stevens

1:24:24

to say that Common Article Three did apply to Guantanamo

1:24:27

that clearly the government had to resist that.

1:24:32

Otherwise if you said the government really believed that it

1:24:35

you said you believed it did apply,

1:24:37

why wasn't it just acceded?

1:24:39

-

I don't know.

1:24:43

Cause I wasn't there when all the debates

1:24:44

were going on as to how to fight that case.

1:24:47

I wasn't thrilled by the oral argument I heard.

1:24:50

And normally I forget who it was that did it.

1:24:53

I can't remember.

1:24:56

I only knew him very briefly.

1:24:58

He probably wouldn't even remember my name,

1:24:59

but I thought he was a brilliant litigator.

1:25:00

I didn't think he handled that oral argument that well,

1:25:03

I hadn't been involved

1:25:07

cause I was at the time at European Command as the SGA,

1:25:08

I was in Stuttgart and I had the rare opportunity

1:25:11

to come back to the states

1:25:14

just as the oral argument was taking place in Hamdan.

1:25:15

So I got to sit through it.

1:25:17

In fact, I sat next to Mark Martins.

1:25:19

Who's now the Chief Prosecutor for commissions.

1:25:20

Again, I lost your original question.

1:25:26

Interviewer

The Common Article Three--

1:25:28

-

So I think what generally happened though,

1:25:30

is there was a general reluctance to concede anything and,

1:25:33

and so I did not see.

1:25:39

What I never saw.

1:25:40

And you sometimes hear criticisms

1:25:41

like they somehow wanted to abuse people

1:25:43

in some horrible way.

1:25:46

No, nobody wanted to do that.

1:25:47

They just didn't wanna give up a potential legal argument

1:25:49

because you haven't thought through

1:25:51

how we might need to do it in the future.

1:25:53

The biggest instance was one of the things I fought for,

1:25:55

there were like four issues in military commissions

1:25:59

before we finally get the rules signed off

1:26:01

on in March of 2002.

1:26:03

One of them was whether

1:26:05

there'd be a presumption of innocence

1:26:06

and I kept wanting to put it in there.

1:26:08

And the only reason was because it was in

1:26:10

Article 75 of Protocol I,

1:26:13

and it was in the ICCPR

1:26:15

International Covenants, Civil and Political Rights

1:26:17

that just useful for again,

1:26:19

public diplomacy purposes,

1:26:22

to be able to say everything that's dealt with in Protocol I

1:26:23

and here is given to them in military commissions.

1:26:28

Legally, I didn't know if you needed to say that,

1:26:33

but why not do it?

1:26:35

But I remember at one point having a chart

1:26:36

where I asterisk all the ones

1:26:38

that were in each of those areas,

1:26:40

and it was told to take the asterisk off, that's irrelevant.

1:26:42

But I really wanna presumption of innocence articulated,

1:26:45

cause it was going to be a presumption of innocence anyway.

1:26:50

No one was arguing for a presumption of guilt,

1:26:52

but again, what I saw was a reluctance.

1:26:55

They just didn't know where courts would go with it.

1:26:59

So the fear was, if we put in a presumption of innocence,

1:27:01

it will cause a whole panoply

1:27:04

of case law to get attached to the process

1:27:07

and that could drag these things on for years

1:27:10

and you'll never get done a trial.

1:27:13

I understood the animating design behind that,

1:27:14

but I just thought,

1:27:21

Jesus, we're absolutely gonna

1:27:21

have a presumption of innocence.

1:27:23

So we should just say it.

1:27:25

And we did finally get that.

1:27:26

I actually asked for help.

1:27:28

Somebody in the Marine Corps gave me

1:27:30

like a Supreme Court case from the 18 hundreds

1:27:31

that talked about presumption of innocence

1:27:34

actually spoke to why it was not in the constitution,

1:27:36

tracked it back to Judeo law.

1:27:39

Judeo-Christian principles built into Roman law,

1:27:43

built into common law.

1:27:47

And ironically it was a Texas Supreme Court.

1:27:49

I believe that first said it was axiomatic to our processes.

1:27:51

And I was able to kind of prepare a memo,

1:27:57

knowing very well that Judge Gonzales,

1:27:59

the White House Counsel had been on the Texas Supreme Court.

1:28:01

So I thought this is great.

1:28:03

And finally I said, yes, all right.

1:28:05

But again, when I hesitate to even tell a story like that,

1:28:07

cause it sounds as if,

1:28:10

if I ever shared that with the press or something

1:28:13

it will be Judge Gonzales

1:28:15

wanted to have a presumption of guilt.

1:28:19

Absolutely not.

1:28:20

It was just an issue of technical legal issues.

1:28:23

And no one knew what all the trappings

1:28:26

that would get attached.

1:28:29

And I think that's why Common Article Three

1:28:30

was a problem as well.

1:28:31

Interviewer

That is so interesting.

1:28:32

A couple of things,

1:28:35

then we'll take a break

1:28:35

and then we can talk over about Obama your place there,

1:28:37

but did you know Alberto Mora?

1:28:39

-

I did.

1:28:42

Interviewer

And did you know when he went

1:28:43

to Jim Haynes to tell about what he was,

1:28:44

had heard was going on in Guantanamo?

1:28:47

Were you still there at that time?

1:28:49

-

My memory is fuzzy

1:28:52

as to whether he went to Jim Haynes

1:28:53

while I was there or after I was there.

1:28:56

I knew I was with some of the concerns that were being,

1:28:59

that were percolating up from the

1:29:04

Naval Criminal Investigative Service folks.

1:29:06

And they weren't,

1:29:09

but those concerns weren't necessarily of a moral issue.

1:29:10

They weren't, the way it played out now historically

1:29:15

is there was kind of a concern

1:29:20

that immoral things are taking place.

1:29:22

I certainly didn't hear that while I was there.

1:29:25

I heard practical concerns like,

1:29:27

Hey, some of the things,

1:29:30

the intelligence folks that are interrogating these people,

1:29:32

which was a developing thing because nobody,

1:29:35

we didn't have DIA agents who'd been interrogating enemy.

1:29:38

They didn't exist at the beginning of the war.

1:29:44

So what techniques they were using,

1:29:47

I'm not fully aware of,

1:29:49

but some of the techniques were causing

1:29:50

some concern for criminal investigators who said,

1:29:52

this is gonna taint the evidence.

1:29:55

Well, they weren't sure either because nobody knew,

1:29:57

well, this is military commissions can be different.

1:30:01

How tainted is the evidence

1:30:03

based on some silly little thing somebody is doing.

1:30:04

So it wasn't as big a deal

1:30:07

when I first became aware of Alberto Mora

1:30:10

going to the General Council.

1:30:13

The history on that was written

1:30:16

after I was not involved anymore.

1:30:18

And I have no real way of weighing in on the accuracy of it.

1:30:20

I just know initially,

1:30:23

I know historically we look back on it.

1:30:25

It's like the JAGs and the general councils

1:30:28

of the services had a rift between them and Jim Haynes.

1:30:31

And I think that was definitely true.

1:30:36

When I was told of it,

1:30:39

when I showed up the first day at work and the thought was,

1:30:39

well, maybe I can bridge it a little bit.

1:30:43

Cause I'm a guy in uniform

1:30:44

and I wasn't able to bridge it very well at all.

1:30:47

I think Jim Haynes attempted to reach out,

1:30:49

but there was always a distance there.

1:30:51

And a lot of times I thought the distance was more how

1:30:54

he treated them and vice versa

1:31:01

as opposed to some kind of moral compunction

1:31:03

cause things were going on that they totally disagreed with.

1:31:05

There was a little bit of opportunism

1:31:08

that I think took place after kind of the downfall

1:31:10

of the legal administration, if you will.

1:31:13

And there was then more criticism,

1:31:15

I think around the time that torture memo came out.

1:31:17

So I don't know the details,

1:31:21

but from my perspective,

1:31:25

it wasn't as big a deal back in the early days.

1:31:26

Interviewer

And you never brought charges.

1:31:30

Did you leave as the prosecutor,

1:31:32

the first prosecutor was that the title when you left?

1:31:35

-

Well, so I didn't actually know that was my title

1:31:37

until we had a press

1:31:40

Fred Bork became what I viewed

1:31:43

as the true first Military Commission Prosecutor.

1:31:46

Nice guy, great guy.

1:31:52

And I had a little bit of turnover with him,

1:31:53

but what was gonna be different than

1:31:55

I was really kind of an advisor to the whole,

1:31:57

I was probably the acting chief prosecutor

1:32:02

and the acting legal advisor to a convening authority.

1:32:05

If you'd had one at the time,

1:32:07

and of course you couldn't do both at the same time.

1:32:08

And then Fred Bork is coming in as clearly

1:32:10

the Chief Prosecutor.

1:32:13

So prep work for Fred Bork's prosecutions

1:32:14

had been done by me and my team.

1:32:18

He adopted the team and at that press conference,

1:32:20

they did a rollout.

1:32:24

And I think it was an attempt to be nice to me.

1:32:25

I think a part of the press statement was

1:32:27

he was replacing the first acting chief prosecutor.

1:32:31

-

How?

1:32:35

-

I don't know.

I didn't know I was the act...

1:32:36

I had never had been officially called that.

1:32:38

I think it was because at the time military commissions

1:32:41

are the hot new thing heading off

1:32:44

and Bill has done such great work.

1:32:45

Cause I had no family there.

1:32:47

Most of the time, I just worked 20 hours a day

1:32:49

and they were trying to give me some credit.

1:32:52

Of course, in hindsight, military commissions

1:32:57

didn't take off that much.

1:32:59

And I thought, we should probably let's not focus on that.

1:33:00

Interviewer

Could you have brought charges

1:33:03

if they wanted to?

1:33:05

-

We were in the early stages of developing.

1:33:07

I mean, the reason to believe determination

1:33:10

is what gives us jurisdiction

1:33:12

under the First Military Order.

1:33:13

So six reason to believe determinations

1:33:15

went to the president.

1:33:18

-

That's six people.

1:33:21

-

Six people.

Begg, Abassi.

1:33:22

And so that's why I think that is public,

1:33:23

which is Begg, Abassi, Hamdan, Abdul, Hicks

1:33:25

and those went to the president.

1:33:30

He signed them,

1:33:34

they did a press conference rollout of those first six.

1:33:36

I think I was somehow involved in that.

1:33:40

And that was literally my last day on the job.

1:33:41

The next day I went off, took leave,

1:33:43

went to the War College.

1:33:46

But even at that time,

1:33:47

I kinda knew the,

1:33:48

the momentum was going to necessarily die to some degree.

1:33:51

Interviewer

Because of the press.

1:33:56

-

Well, personalities involved.

1:33:57

I knew Fred Bork had some,

1:33:59

he had to get kind of spun up at the time

1:34:00

Deputy Secretary of Defense Wolfowitz

1:34:04

was the convening authority.

1:34:06

He is a detail guy.

1:34:08

He's not somebody you go into and say,

1:34:10

big picture we're gonna prosecute these hundred people

1:34:13

and then we're gonna...

1:34:16

He'll ask questions like,

1:34:18

what are you gonna do when the witness says this

1:34:21

and what will be your comeback?

1:34:22

You need to be in that level of detail with him.

1:34:24

And I knew that there was that with him

1:34:26

as the convening authority

1:34:29

and a new guy as the Chief Prosecutor,

1:34:30

it wasn't gonna happen quickly.

1:34:32

And it didn't.

1:34:35

Interviewer

Do you wanna take a break?

1:34:37

-

That'd be great to get you some more water.

1:34:38

Interviewer

Yes, lets take a break

1:34:40

and get you some more tea and then we'll come back.

1:34:40

And I really appreciate with talk about Obama

1:34:43

because I really want you to talk (mutters).

1:34:44

How you got back in.

1:34:47

-

We need to have presumption of innocence

1:34:49

and he totally, yeah, we need presumption of innocence.

1:34:51

That's absurd.

1:34:53

-

That's wonderful.

That was a great anecdote.

1:34:55

That was really wonderful.

1:34:56

I mean, maybe we'll things like, while you're talking,

1:34:57

I'll go back to.

1:34:59

-

And my starting, just so you know,

1:35:03

my starting point on the Obama administration

1:35:05

is I was pulled over by Jim Jones,

1:35:07

National Security Advisor.

1:35:10

And when Greg Craig first interviewed me

1:35:11

and found out I had Bush administration involvement,

1:35:13

he was like, no way.

1:35:16

Interviewer

Why? Can we put that on tape or not really?

1:35:18

-

Yeah. Cause it's not adverse.

1:35:21

And how did I get in the Bush administration?

1:35:25

But my point is that there is a connection

1:35:28

because clearly I would've never probably

1:35:30

been the detainee policy guy,

1:35:33

but for the combination,

1:35:35

they would have never made me the detainee policy guy

1:35:37

in the Biden administration.

1:35:39

Only a year later

1:35:41

my background with the Bush administration

1:35:42

probably didn't hurt at that point in time.

1:35:44

Interviewer

That'd be great.

1:35:47

Let's put that in.

1:35:48

We interviewed Greg Craig,

1:35:50

he asked Matt to put his picture on our website,

1:35:51

but we have a tape of him.

1:35:56

After he left, after he was frustrated with it all.

1:35:59

So I can tell you more, but whatever, whenever you're ready.

1:36:03

Man

Okay. Go ahead.

1:36:05

Interviewer

So we're back in.

1:36:07

And so we talked about how you got involved

1:36:08

with the Obama administration.

1:36:11

You know you left the Bush administration

1:36:12

in the summer of 03

1:36:14

and you went to the War College

1:36:16

and then maybe you could just

1:36:18

quickly go through that and tell us how you

1:36:20

got involved with the Obama administration

1:36:22

and what happened?

1:36:23

-

So when I left in 2003,

1:36:24

I really pretty much lost touch of everything

1:36:27

happening in military tribunals and everything else.

1:36:30

I went War College for a year.

1:36:32

Then I was in charge of appellate government

1:36:35

for the Navy and Marine Corps,

1:36:36

the appeals of criminal cases.

1:36:38

And then I became the Staff Judge Advocate

1:36:41

of U.S. European Command.

1:36:45

Which at that time included, what's now Africa,

1:36:47

Africom, Africa Command.

1:36:49

So we had 93 countries from Russia down to South Africa.

1:36:51

And I guess the only relevance there

1:36:59

is that during that period of time,

1:37:00

while I was at the command is when Congress

1:37:03

was passing the Military Commissions Act

1:37:05

and the Detainee Treatment Act and a few other things.

1:37:08

So I started seeing from a distance

1:37:10

what was happening there.

1:37:13

And my concern remained what it had been earlier,

1:37:14

at least with respect to the Americans provision,

1:37:18

no Americans can get tried by military commission

1:37:20

because I was in Europe

1:37:24

and you're having to explain U.S. policy

1:37:25

to our European allies.

1:37:28

And there would be this perception that

1:37:29

how can you talk about rule of law?

1:37:32

Like we do, we do Defense Institute

1:37:35

of international Legal Studies runs around the world

1:37:37

and helps other countries in development of rule of law.

1:37:40

And they would say,

1:37:42

how can you talk about rule of law if you have Guantanamo?

1:37:43

And of course, Guantanamo was a far more complex,

1:37:46

nuanced thing than a simple, yes, it's a violation,

1:37:49

but there had been a very poor done of explaining

1:37:53

even internal to the U.S. government in our own military,

1:37:57

exactly what our legal positions were.

1:38:00

And so actually my time at the War College,

1:38:04

ironically, I wrote a very lengthy article.

1:38:07

I never published it.

1:38:10

It's like 400 pages and it was beyond my ability to.

1:38:10

I was only familiar with Law Review articles.

1:38:16

I didn't have time to do that,

1:38:18

but it was about the changes in international law

1:38:19

that were brought about by terrorism.

1:38:22

The advent of Al-Qaeda.

1:38:25

Military commissions being one of many but detentions

1:38:27

and other things.

1:38:30

But my biggest criticism always was

1:38:32

that we never took the time to try to explain

1:38:36

these things to our allies.

1:38:38

And what I would find is in foreign conferences and things,

1:38:39

which I was usually allowed to go to

1:38:44

on behalf of the Bush administration,

1:38:47

because I was more or less trusted,

1:38:49

they're just explaining our legal positions,

1:38:53

gave a lot of relief to our European allies

1:38:57

who said, oh my goodness,

1:39:00

I thought you were just ignoring the rule of law.

1:39:00

I don't necessarily agree with all of your legal positions,

1:39:04

but I'm so gratified to hear that there are some.

1:39:06

And so that's a theme I think that John Bellinger

1:39:09

picked up or really led

1:39:13

when he became the State Legal Advisor

1:39:14

under the Bush administration.

1:39:16

And he started going around to our allies

1:39:17

and in a more formal way at the State Department,

1:39:19

legal advisors level explaining

1:39:23

our positions on Guantanamo and other things

1:39:25

that started started turning the tide on perceptions.

1:39:28

Interviewer

Did he know you?

1:39:33

-

Yes. I knew John Bellinger

1:39:35

from when he was the White House

1:39:38

National Security Council as the legal advisor.

1:39:40

I had somehow known him from before.

1:39:43

I can't exactly remember where and when a little bit.

1:39:45

And there was a time when I was going to go work

1:39:48

at the White House in the National Security Council

1:39:50

for John Bellinger.

1:39:53

I knew from a Marine Corps career's perspective,

1:39:56

it would kind of be the end of that.

1:39:59

The Marine Corps is not necessarily keen on people

1:40:01

running off to the White House and things like that.

1:40:04

We fight and win battles.

1:40:06

The fact that I say, we,

1:40:10

even though I've been retired for years,

1:40:11

shows the Marine Corps in your blood,

1:40:12

that was a hard decision.

1:40:15

I was then offered the chance

1:40:16

to go be the Staff Judge Advocate of us European Command.

1:40:18

That was a great job.

1:40:22

So I ended up not gonna the White House.

1:40:24

Soon thereafter Bellinger went to the State Department,

1:40:27

became State Legal Advisor when Condoleezza Rice went over.

1:40:30

Interviewer

Did he ever consult with you

1:40:37

as to what he should be saying to European allies?

1:40:39

-

No, not particularly.

1:40:44

Though I actually gave him a copy of my paper

1:40:46

and a guy who worked for Matt Waxman at the time

1:40:48

I gave him a copy of the paper I wrote

1:40:51

in the at the War College, it's huge.

1:40:53

I don't think he,

1:40:54

but I remember being in one meeting

1:40:56

where I was asked to attend

1:41:00

because I was at European command.

1:41:02

He was coming in from the State Department.

1:41:04

We both ended up,

1:41:06

I think it was in the Netherlands or somewhere

1:41:06

with their legal advisor.

1:41:08

And I remember hearing his talking points

1:41:09

and I thought they were amazingly similar.

1:41:11

I don't know that he used my paper,

1:41:14

but I was gratified to think that

1:41:15

we're thinking along the same lines

1:41:18

that we need to explain these things.

1:41:19

And so I did have a that's,

1:41:21

but that's the extent of my involvement.

1:41:23

And then it wasn't until I left European Command

1:41:27

because again, I was offered command

1:41:31

and command trumps everything again in the Marine Corps.

1:41:34

So I was offered command of an installation Henderson Hall.

1:41:36

Now it's Joint Base Myer-Henderson Hall,

1:41:40

but it's also the headquarters battalion,

1:41:42

which is all basically all the Marines in Washington, DC

1:41:44

you're just administratively in charge of them.

1:41:51

So technically the commandant the Marine Corps

1:41:53

in your command,

1:41:55

he didn't really do what I said,

1:41:56

but I housed the Marines that worked throughout Washington.

1:41:58

Great job thoroughly enjoyed it,

1:42:03

but it was from there.

1:42:05

I was there when the Obama administration began

1:42:08

and my former boss Supreme Allied Commander Europe,

1:42:12

General Jim Jones

1:42:15

became the National Security Advisor.

1:42:17

So that's how I got pulled into the Obama administration

1:42:19

as I was asked to go over to the National Security Council

1:42:22

at the beginning of the administration.

1:42:28

Interviewer

Did they have any concerns

1:42:30

that you had worked in the Bush administration?

1:42:32

-

Not at first, when I first went over,

1:42:37

I think General Jones

1:42:40

it's a little unclear exactly what would my role would be?

1:42:41

Would I be the legal advisor

1:42:43

or would it be a deputy legal advisor that

1:42:45

the emails I got were cryptic,

1:42:48

he actually didn't approach me directly.

1:42:50

He went to the commandant of the Marine Corps,

1:42:51

General Jones did,

1:42:53

told the commandant that I would,

1:42:54

he would like me to go be the legal advisor

1:42:58

and the commandant called me

1:43:00

and told me I gotta make a decision.

1:43:02

It wouldn't mean getting out of the Marine Corps,

1:43:06

but it would mean getting out of the mainstream.

1:43:08

And I decided, yes, I would like to go to the White House.

1:43:11

I was familiar with the National Security Council from

1:43:13

before and I thought it'd be a great opportunity.

1:43:16

I went over.

1:43:22

And what interestingly was happening at the time

1:43:23

is it was right at the beginning.

1:43:25

I don't know if the administration had started yet.

1:43:27

I didn't get over there by the first day.

1:43:30

I know that.

1:43:32

So I came a month or two later,

1:43:33

I was asked to talk to Mary DeRosa,

1:43:36

who by then had become kind of the political appointee,

1:43:38

National Security Council lawyer.

1:43:41

But what was also happening is they were merging the offices

1:43:43

under Greg Craig.

1:43:46

So the White House council was going to

1:43:47

kind of adopt the National Security Council legal staff

1:43:49

under White House counsel's office.

1:43:53

That never fully happened.

1:43:54

It was in its beginning stages.

1:43:56

Then I think that was his vision.

1:43:58

Great Craig's vision, didn't fully happen.

1:44:00

But because of that,

1:44:03

I had to go interview with Greg Craig.

1:44:04

I viewed it as a perfunctory interview

1:44:06

because the National Security Advisor already wants me.

1:44:08

I'm not even gonna be the main lawyer.

1:44:11

I'm just gonna be the deputy so.

1:44:13

I went to what I thought was a perfunctory interview.

1:44:16

It became clear to me.

1:44:19

He didn't know about all of my background

1:44:20

in the Bush administration as we've just been discussing.

1:44:23

So I made sure he was aware of it.

1:44:25

And you could tell he hadn't been briefed.

1:44:28

So he politely said things like,

1:44:30

well, we're looking at a few,

1:44:33

maybe five or six people for this job.

1:44:37

If you're interested,

1:44:39

I'd like you to interview these four other people

1:44:40

and come back and see me in

1:44:42

for an interview with these four other people.

1:44:43

I think at some point I mentioned the last time

1:44:47

I'd been in that office,

1:44:49

David Addington had been there.

1:44:51

Judge Gonzales had been there.

1:44:52

And, he just you could tell, he thought, my goodness,

1:44:53

what is this guy doing in my office?

1:44:56

I talked to my boss,

1:44:59

then Mary DeRosa was a wonderful person.

1:45:01

She said, we probably should have warned him.

1:45:03

They talked to him subsequent to that and said,

1:45:07

look, the guy's in the Marine Corps.

1:45:10

They went around and checked on me and said, it was fine.

1:45:13

There was kind of, I went back to see him.

1:45:17

And there was kind of an understanding

1:45:20

that I wouldn't deal with detainee things.

1:45:22

Cause I was kind of tainted.

1:45:25

Nobody specifically said you cannot touch a detainee thing.

1:45:27

I did opine on things periodically.

1:45:31

I remember Greg Craig during the interview saying,

1:45:35

what if some of the,

1:45:41

you've done all these things with the Bush administration,

1:45:42

defended their policies in many cases.

1:45:44

What if we do things you don't agree with?

1:45:47

And I told him that, I'll tell you,

1:45:49

but I'll tell you behind these closed doors.

1:45:53

I know who the commander chief is.

1:45:56

That's who I work for.

1:45:57

Unless there's something that truly morally offends me.

1:45:58

I'm gonna support the administration.

1:46:02

I'm your lawyer.

1:46:06

I'm the administration's lawyer.

1:46:07

So I'm gonna make a case for the commander chief.

1:46:08

And I'll tell you when I disagree,

1:46:12

but once you make a decision,

1:46:15

that'll be my it's kind of a standard military answer.

1:46:16

But sometimes the political lawyers don't comprehend

1:46:18

where the military is coming from on that stuff.

1:46:22

So I worked in the White House for a year

1:46:25

as a Deputy National Security Advisor,

1:46:28

doing everything from anti-ballistic missile, treaty issues,

1:46:31

to all kinds of different sanction issues

1:46:34

and watched the Guantanamo thing take place from a distance.

1:46:39

Interviewer

Did you believe Obama when he said

1:46:46

he's gonna close Guantanamo

1:46:49

he announced in the second day of his term?

1:46:50

-

I did.

1:46:55

-

You thought it was possible?

-

I mean, I wasn't in the loop at all,

1:47:01

so I had no idea who was in Guantanamo.

1:47:02

Didn't know how many people we had there.

1:47:04

Hadn't been tracking it.

1:47:06

Other lawyers who used to come to me for advice,

1:47:09

should I get involved in military commissions?

1:47:11

I was past the point then of saying, no,

1:47:13

why would you wanna throw away

1:47:16

three years of your career and work on it?

1:47:18

Whereas I used to say, yeah, it's the hottest thing going

1:47:20

in the legal community get involved.

1:47:22

When I was there, the Bush administration,

1:47:26

I had the pick of the JAG offices

1:47:27

and that was no longer the case.

1:47:32

And you had reservists

1:47:33

and not that there's anything wrong with reserves.

1:47:35

My point being though that they,

1:47:37

that people weren't clamoring

1:47:40

to work in military commission offices.

1:47:41

And it was similar in my case,

1:47:45

again, I lost track of where we were.

1:47:49

Interviewer

Also when Obama said they're gonna close--

1:47:51

-

But I didn't know who the people were.

1:47:54

So I didn't know how hard that would be.

1:47:56

I always thought if you're in fact wrapping up this conflict

1:47:58

and or if you've got the people you wanna prosecute,

1:48:03

and that's the only ones you need to hold,

1:48:07

and you think you can mitigate the threat of the others.

1:48:08

Great.

1:48:11

Cause I was very familiar with how disastrous

1:48:12

Guantanamo was for our foreign relations.

1:48:14

I was not among those in the human rights community.

1:48:17

That thought it was a violation of the law itself,

1:48:22

that it existed.

1:48:25

And while I think some of the enhanced

1:48:27

interrogation techniques that were on the edge

1:48:31

of what would be appropriate under the Geneva Conventions,

1:48:35

that was problematic for the,

1:48:37

that had all stopped at that point in time.

1:48:39

So there was a little bit of historical piece of that

1:48:42

in our treatment of detainees

1:48:45

that we needed to absolutely clean that up

1:48:47

from throughout any of my involvement,

1:48:49

I would have said that needs to get cleaned up right away.

1:48:52

The idea of having a place

1:48:54

where you have indefinite detention.

1:48:56

No, that's what you do in war.

1:48:57

And we need to have that.

1:49:00

We just need to make sure

1:49:02

we're treating people appropriately, who are there.

1:49:03

That said, if you could close Guantanamo. Absolutely.

1:49:05

I didn't know how many there were.

1:49:09

And I thought if there's four or five people

1:49:10

who are truly still at war with us,

1:49:12

it's worth the money,

1:49:15

take an FBI agent and attach one to each one,

1:49:16

I'm gonna follow them around

1:49:19

and just make sure they don't do anything bad.

1:49:19

It would be worth it.

1:49:21

But I didn't know who was there.

1:49:22

During that first year of the administration

1:49:25

I think the administration learned who they had there

1:49:27

and they realized it's not four or five.

1:49:30

You've got a much larger number of pretty hardcore enemy

1:49:32

who are not prosecutable.

1:49:37

And they're you.

1:49:40

Interviewer

And did you get drawn in then

1:49:43

in terms of your expertise?

1:49:44

-

Ironically, I never got asked.

1:49:48

I was never asked,

1:49:51

I would go to the White House council meetings at the time.

1:49:52

Like I said, they were all combined.

1:49:54

So weekly meetings with Greg Craig who was a great guy,

1:49:56

absolutely trying to do the right thing

1:50:00

throughout this time period.

1:50:02

I remember one of the first issues

1:50:03

was whether to keep military commissions alive or not.

1:50:05

I know DoD pushed hard to do that.

1:50:07

I'm inclined to think Greg Craig was not a fan of it,

1:50:11

but again, we weren't confidant.

1:50:14

So I didn't know his inner thoughts on that,

1:50:16

but I remember my perception was the administration

1:50:19

had come out with one of those first executive orders

1:50:24

telling this task force.

1:50:26

It went under DoJ, the EOTF Executive Order Task Force,

1:50:29

identify which people can be released,

1:50:33

which ones can be transferred,

1:50:35

which ones can be prosecuted.

1:50:36

And then it adds like a little caveat.

1:50:39

And if none of those will work, try harder.

1:50:41

And if it still won't work,

1:50:43

find another lawful disposition, that's a paraphrase,

1:50:45

but that's what the executive order more or less says.

1:50:49

And what was happening is that other lawful disposition,

1:50:52

which meant continued law of war detention,

1:50:55

which became the term of art

1:50:58

because we didn't use prisoners of war.

1:51:00

Everyone was confused by enemy combatant.

1:51:02

They came up with a verb or the noun

1:51:04

that would describe them as,

1:51:08

or would describe the activity law of war detention,

1:51:10

which was kind of like enemy combatant.

1:51:15

It was a common English dictionary definition

1:51:16

that would help people understand what we're doing.

1:51:18

They're not being held for criminal trial.

1:51:20

They're being held under the law of war.

1:51:22

That was used.

1:51:25

And a bunch of them were being categorized for that.

1:51:26

That's when I started realizing, okay,

1:51:30

probably this is gonna be tougher than they realize.

1:51:32

And when I saw them debate whether military commissions

1:51:36

should be used,

1:51:40

what I saw was a,

1:51:41

not an inclination toward military commissions

1:51:46

coming out of the administration at the beginning,

1:51:48

but an inclination toward getting people

1:51:50

out of this law of war detention category.

1:51:53

So if you had a military case.

1:51:55

So if the Justice Department said

1:51:56

we can prosecute only this many people.

1:51:58

We were hoping you'd be able to prosecute more than that.

1:52:02

And then the military commission prosecutors

1:52:05

raise their hand and say,

1:52:07

we could prosecute double that many.

1:52:08

I really questioned the military commission prosecutors,

1:52:11

but I didn't have,

1:52:16

I didn't have the facts, but I thought,

1:52:16

have these guys really done the detailed analysis

1:52:19

to know that they could prosecute twice

1:52:22

as many as the Article Three courts can.

1:52:24

And I did kind of write a memo then

1:52:26

where I threw out my opinion,

1:52:28

that I'd be really cautious

1:52:30

about keeping military commissions alive,

1:52:31

even though I was the--

1:52:33

Interviewer

Why did you think that they

1:52:34

couldn't do additional prosecutions?

1:52:36

-

I just didn't.

1:52:40

The only they had changed the Military Commissions Act once

1:52:42

and they were in the process of changing it twice

1:52:45

in conjunction with that decision.

1:52:48

And so they were making it more like an Article Three court,

1:52:50

each step of that process.

1:52:54

And then the first comment

1:52:56

I made about the military commissions

1:52:59

have traditionally always been a court

1:53:00

of exigent circumstances.

1:53:02

The exigent circumstances were weaning.

1:53:04

And so now the talking point and the human rights

1:53:09

it's community was more or less happy

1:53:13

that the new rules were making these commissions

1:53:14

more palatable to a due process minded world.

1:53:17

The reasons to have a separate judicial system

1:53:22

we're diminishing

1:53:25

and all you're really left with then was Miranda.

1:53:26

And Miranda, like I said in the beginning was,

1:53:29

I didn't think a very good reason

1:53:31

to have military tribunals.

1:53:33

So I question how many cases

1:53:34

you'd be able to try by military commission.

1:53:38

And then the issue was what principled rationale

1:53:40

do you have to go one way or the other?

1:53:44

I was much happier with the Bush administrations,

1:53:45

everyone we captured under these circumstances,

1:53:48

law of war circumstances.

1:53:51

They go to military tribunal.

1:53:53

I'm good with that, because it's principled.

1:53:55

You could then debate whether it was a good call

1:54:01

or not to do it.

1:54:03

That's a different debate.

1:54:04

I am a little more bothered by a pure ad hoc approach

1:54:05

to whatever is the most use expedient way to do it.

1:54:10

And I didn't hear articulated a good principled way to

1:54:16

distinguish between Article Three and military commissions.

1:54:20

Interviewer

And no one really asked you

1:54:24

for your expertise throughout the four and a half years

1:54:25

you were with the Obama administration.

1:54:28

-

That's not true. So for while I was in the White House

1:54:30

and working in the National Security Council staff,

1:54:34

I was mostly doing other things.

1:54:37

I wrote a memo anyway.

1:54:38

I remember seeing Greg Craig,

1:54:40

I think in the hallway and he made some comment.

1:54:41

He agreed, or we lost or something like that.

1:54:45

By then the decision was made.

1:54:47

We're gonna go ahead with military commissions.

1:54:49

Which I wasn't opposed to them.

1:54:53

Obviously I wasn't morally opposed to military commissions

1:54:54

or I wouldn't have worked on them so hard.

1:54:57

It's just as a foreign relations matter

1:54:58

there was no way we were gonna convince

1:55:00

the rest of the world that these were good.

1:55:02

I don't think I told the story.

1:55:05

When we were gonna try Moazzam Begg

1:55:08

I went to the United Kingdom to tell the British about that.

1:55:10

And I was pulled in to meet with a person.

1:55:14

I knew I went with Pierre Prosper,

1:55:17

who was the ambassador at large

1:55:18

for war crimes issues at the time.

1:55:19

He went in with the counter-terrorism person

1:55:22

who was later my counterpart in the Obama administration.

1:55:24

And I went in with Elizabeth [Indistinct]

1:55:26

who was the Deputy Legal Advisor

1:55:28

to their State Department equivalent.

1:55:31

We talked about military commissions.

1:55:33

I explained to her,

1:55:34

I knew her from International Criminal Court days.

1:55:36

I explained these would be fair trials,

1:55:39

despite what all the press is saying.

1:55:41

She said, Will, I believe you. I know you.

1:55:43

I trust you.

1:55:45

I absolutely believe they're fair trials

1:55:46

but come on the rest of the world is never gonna buy this.

1:55:47

You've got the people who they're shooting at

1:55:53

being the jurors.

1:55:55

No one's gonna believe that

1:55:57

and you don't try Americans buy them.

1:55:58

So it's a fair court,

1:56:00

but it's not fair enough for Americans,

1:56:01

which is kind of always knew that was gonna be a problem

1:56:03

that has that conversation.

1:56:06

She resigned a week later over Iraq,

1:56:08

but that conversation was always in my head

1:56:10

that military commissions is never gonna really

1:56:14

sell the rest of the world,

1:56:18

unless we absolutely need them to do what we're doing

1:56:19

and to prosecute these people. Why do it?

1:56:24

And you could get the 9/11 five without them

1:56:26

so why keep them alive was kind of my view.

1:56:28

I don't have a strong opinion either way,

1:56:31

but I thought Greg Craig should question it.

1:56:32

And that was my only involvement.

1:56:36

He then as you know, left as White House counsel,

1:56:40

and at about the same time I was looking for a future job,

1:56:47

I had a strange,

1:56:54

I had a strange coincidental set of emails

1:56:56

where someone who I barely knew

1:56:58

asked me if I was in any way,

1:57:00

thinking about taking,

1:57:03

I can't even remember his name.

1:57:05

I apologize for a mental blank again,

1:57:07

but the guy who proceeded me

1:57:09

as the Deputy Assistant Secretary for Detainee Policy.

1:57:11

Cut this out of the video.

1:57:18

It would embarrass me that,

1:57:19

that I have just lost to drawn a blank on his name,

1:57:21

but he had left the job and they needed to replacement.

1:57:24

I didn't know who he was.

1:57:28

I didn't know what the bill it was.

1:57:29

I never heard of the job.

1:57:31

I got the email while I was in China,

1:57:33

visiting my daughter who was in school there as a foreign,

1:57:34

doing a semester there.

1:57:37

And it was in the back of my mind.

1:57:39

I wonder what he's talking about.

1:57:41

If I thought about taking this person's job,

1:57:42

I get back and we're in a weekly civics and Harold Koh,

1:57:45

who is the legal advisor to the State Department,

1:57:49

mentions to Mary DeRosa

1:57:51

who's sitting next to me

1:57:53

in our little secure video teleconference.

1:57:54

Hey, when are you gonna replace?

1:57:58

-

So and so.

1:58:01

-

Yeah.

When are you gonna replace him?

1:58:04

And she says, or she says, I don't know.

1:58:05

We have to do that soon though.

1:58:10

And Harold, yeah, you got to get somebody in that job.

1:58:11

And I recognize the name again

1:58:15

that I can't even remember now.

1:58:16

And he's a great guy and I'm friends with him and I can't,

1:58:17

I just can't remember it,

1:58:19

I thought this is so weird.

1:58:22

And I asked her, should I be thinking about this job?

1:58:23

Cause look at this weird email I got out of the blue.

1:58:29

I didn't even know this.

1:58:31

I looked him up.

1:58:32

I figured out who he was.

1:58:33

And I wasn't really interested in detaining policy at all.

1:58:36

I saw it as a unmitigated disaster at that point in time,

1:58:39

she too said, you don't wanna get involved in that.

1:58:45

I think we can find something better for you and I,

1:58:48

that was gratifying to me.

1:58:50

But within 12 hours, she came back to me and said,

1:58:56

I don't know why we hadn't thought of you before,

1:59:00

but actually you'd be perfect for it.

1:59:01

There's a bunch of people

1:59:04

that have been nominated for, the Pentagon's.

1:59:05

I guess the way these things work at the Pentagon

1:59:07

and the White House have to kind of agree.

1:59:09

It's a political position.

1:59:11

I was not a political in the Obama campaign.

1:59:12

I had been brought over by General Jones

1:59:16

who was the military guy

1:59:19

they're adding to the administration.

1:59:20

But then they asked me if I was willing,

1:59:24

they would like to put me up for,

1:59:27

cause they didn't have someone

1:59:28

and we needed to fill the slot.

1:59:29

And you're the guy who could do it.

1:59:30

They knew me.

1:59:32

I wouldn't have been chosen for it.

1:59:33

But for the fact that the people then

1:59:35

I'd been there a year and they knew me.

1:59:37

And then the next day I was interviewing at the Pentagon,

1:59:41

I went through a series of interviews

1:59:43

and I quickly became the candidate for the job.

1:59:45

And I had a kind of a quick am I ready to retire

1:59:49

from the Marine Corps decision.

1:59:52

Well because we required retiring to take the job

1:59:55

and the civilian side,

2:00:01

it's a step up and rank of sorts.

2:00:02

And so you couldn't really do it as a Colonel

2:00:05

and it's a political position.

2:00:09

Interviewer

What's the role exactly?

2:00:11

What did it retail?

2:00:13

-

At the time,

2:00:16

so you have several undersecretaries in most departments,

2:00:17

but in the Pentagon you have several.

2:00:23

And under the undersecretary for policy,

2:00:25

which is the one I would have always had an interest in

2:00:27

being in if I were to pick one,

2:00:30

which is why I found it attractive.

2:00:31

It usually there five assistant secretaries at that time,

2:00:34

there were five,

2:00:38

usually all the deputy assistant secretaries,

2:00:40

maybe three, two to two to four

2:00:42

for each of the assistant secretaries.

2:00:44

That would be the Corpus of deputy assistant secretaries

2:00:47

in this particular case,

2:00:52

because detainees was so sensitive.

2:00:54

The deputy assistant secretary for did a Haney policy

2:00:57

more or less reported directly

2:01:00

to the Deputy Secretary of Defense who had weekly meetings,

2:01:02

because from England's days in the Bush administration,

2:01:04

he had kind of taken over to detainee things directly.

2:01:07

And then Bill Lynn is the new Deputy Secretary of Defense

2:01:11

and the Obama administration kind of adopted it as well.

2:01:14

They were in the business of closing Guantanamo.

2:01:18

That was a big campaign initiative

2:01:20

dealt with at the highest levels.

2:01:22

They had deputies meetings.

2:01:23

Michele Flournoy was then the

2:01:25

under secretary of defense for policy.

2:01:26

And she also interviewed me.

2:01:28

But as she said,

2:01:30

you're gonna be working directly with Bill Lynn.

2:01:31

You need to go talk to him.

2:01:33

And both of them were great guys.

2:01:35

I had great bosses.

2:01:37

I directly for Pete [Indistinct],

2:01:38

who was the Chief of Staff.

2:01:40

So they didn't put an assistant secretary over me.

2:01:41

I just kinda worked for the chief of staff.

2:01:44

And then in some ways like a loose cannon Daz-D-ship,

2:01:48

they call it for Deputy Assistant Secretary of Defense.

2:01:52

I didn't know what that was.

2:01:55

I remember showing up my first day on the job,

2:01:55

they kept referring to Daz deletes.

2:02:01

I didn't know what it was.

2:02:02

I had to took me a while to figure it out.

2:02:03

I remember, being called by my first name

2:02:06

by a young 20 something kid

2:02:10

that was abnormal in the Marine Corps.

2:02:13

Then I had a two star Admiral refer to me as sir,

2:02:16

that's equally abnormal for a Colonel.

2:02:18

And that was kinda my first day on the job

2:02:21

realizing I'm in a new world,

2:02:24

and I'm a political appointee,

2:02:27

but I was a political appointee that

2:02:29

I was actually impressed with the Obama administration

2:02:33

because I was a political appointee

2:02:35

that had not been on the campaign.

2:02:37

I asked Mary DeRosa, do I need to,

2:02:39

somehow join the Democratic Party

2:02:42

and register as a Democrat or something like that.

2:02:45

She said, no, no, not allowed.

2:02:47

We know you're we know who you are.

2:02:49

We know your politics.

2:02:51

There was a little bit of a political,

2:02:54

they did it like a Google search on me or something.

2:02:56

I don't know what it was,

2:02:58

but they did a massive search of everything I'd ever said.

2:02:59

And there was a little bit debate then,

2:03:02

because I had said more positive things

2:03:03

about the Bush administration

2:03:07

than were part of the campaign ready rhetoric,

2:03:08

but they ultimately decided to let me do it anyway.

2:03:12

Interviewer

So what was your role?

2:03:15

What was your job?

2:03:16

-

Well, it was basically top person

2:03:18

that did policy on detainees.

2:03:22

Interviewer

What does that mean?

2:03:24

-

In the Bush administration the office was created

2:03:30

in the aftermath of Abu Ghraib.

2:03:33

And it was kind of reactive to deal with the,

2:03:37

all the flurry of criticism that came after Guantanamo.

2:03:43

So it involves dealing with the human rights community,

2:03:47

dealing with the press,

2:03:51

dealing with our policies and getting the,

2:03:53

where is interrogation gonna start and end?

2:03:56

And how are we gonna ensure that detainees

2:03:59

are being treated appropriately?

2:04:01

When does the ICRC International Committee of the Red Cross

2:04:02

get access?

2:04:05

When don't they get access?

2:04:06

Everything dealing with detainees.

2:04:08

I was also the co chair with ambassador Dan Fried,

2:04:10

the Special Envoy for closing Guantanamo

2:04:15

at the State Department.

2:04:17

I was the co-chair of the Guantanamo

2:04:19

detaining transfer working group

2:04:20

that looked at individual detainees

2:04:25

and started transferring them out of Guantanamo.

2:04:27

So everything dealing with detainees was my purview.

2:04:29

When you ask what was my job though?

2:04:32

One of the things that I attempted to do all the was

2:04:34

define it a little bit differently than some might.

2:04:38

If you were to have asked over at the State Department,

2:04:42

what's my job?

2:04:44

Well, I'm the DoD counterpart

2:04:45

to their office of closing Guantanamo.

2:04:46

We're gonna close Guantanamo.

2:04:48

I always viewed it as no my job is detainee policy.

2:04:50

The office in the Obama administration

2:04:54

actually changed from detainee affairs,

2:04:56

which I viewed as somewhat reactive

2:04:58

to under Michele Flournoy detaining policy,

2:04:59

getting our detaining policies right,

2:05:03

not close Gitmo policy, detainee policy.

2:05:05

And so we had a,

2:05:08

in fact, I have my coin.

2:05:10

I created a coin

2:05:12

as you know military organizations sometimes do,

2:05:13

cause I ended up traveling a lot in this job

2:05:16

and I need a coin to give troops.

2:05:18

So I bought them myself,

2:05:20

but I put principled, credible, sustainable

2:05:21

detention policy was kind of our motto

2:05:25

and worked toward that.

2:05:29

I mentioned it cause it's distinguished

2:05:31

from the way some would put it.

2:05:33

If you were to ask some people in the White House,

2:05:35

what is the us government's detainee policy?

2:05:37

There would have been a tendency to simply say,

2:05:40

close Guantanamo

2:05:42

and not get into more detail than that.

2:05:43

And I wanted for a number of reasons,

2:05:47

but I had for no other reason,

2:05:50

morale of the people who were working so hard on this issue,

2:05:52

they needed to know

2:05:55

you can succeed in having a principled

2:05:57

set of detention policies.

2:05:58

And in fact, if you look at the executive orders

2:06:00

that come out of the president close Gitmo

2:06:02

is the famous one,

2:06:04

but there were actually a couple others

2:06:06

about changing interrogation techniques

2:06:08

that essentially I would categorize

2:06:11

as have a more principal detention policy.

2:06:13

Those got lost in the public discourse,

2:06:15

but that's where I kind of focused.

2:06:19

Cause we still had detainees in Iraq.

2:06:20

We had tens of thousands of detainees when I took over

2:06:22

in Iraq and Afghanistan and in Guantanamo.

2:06:26

And we were developing some of the policies

2:06:28

that I think make for a more principled approach

2:06:31

to detention in this type of 21st century warfare.

2:06:35

That's where we focused.

2:06:38

Last point I'll make on, the what's your job?

2:06:39

I had the opportunity to meet with the president

2:06:41

before I took the job.

2:06:43

Probably not because of the job so much as,

2:06:45

because I was at the White House and I was leaving.

2:06:48

And you get your picture taken with the president

2:06:50

when you leave.

2:06:52

I remember I invited my wife to it

2:06:53

cause she would very much appreciate that

2:06:54

kind of a historian wanted to touch the desk.

2:06:58

And so in fact, if you look at the picture,

2:07:00

it'll be my wife and the president and me off to the side.

2:07:02

And you'd say,

2:07:05

why are you in the picture of your wife with the president?

2:07:07

But during that brief picture,

2:07:09

taking a conversation,

2:07:13

we had a brief conversation.

2:07:14

I told them what my next job was gonna be.

2:07:15

He clearly took an interest.

2:07:17

He clearly cared.

2:07:18

And he said words to the effect of sometime

2:07:20

before I leave office,

2:07:24

whether it's the next three years in the next seven years,

2:07:25

I would like to have a figure out

2:07:28

what our legal framework is

2:07:31

and policy framework for how we handle these detainees.

2:07:34

That was a great message for me.

2:07:38

And maybe I'm remembering it the way I wanted to,

2:07:40

but that was something that I could say,

2:07:42

Aye! Aye! Sir.

2:07:44

I have no problem.

2:07:45

There's no difference daylight between what you want

2:07:47

and what I would wanna do.

2:07:51

If he had said, I want you to close Guantanamo,

2:07:52

no matter what it takes.

2:07:54

I might've had a little more problem with that

2:07:56

because we've got troops who were

2:07:58

working their hardest to have the most principle

2:08:03

kind of detention policy you could have already.

2:08:06

And to say, we need to close it

2:08:08

cause you're an embarrassment to America was that

2:08:09

was a difficult message for them to hear.

2:08:12

The message I got out of the President was a different one.

2:08:14

And so I focused on changing the world's perception,

2:08:17

making sure we had the most principled policies around

2:08:20

and changing the world's perceptions of our policy,

2:08:23

so that we could be proud of what we did

2:08:26

if and when we have to detain people.

2:08:28

And then absolutely if we can close Guantanamo.

2:08:30

Great. That would be ideal.

2:08:33

Cause I was very familiar with how harmful Guantanamo

2:08:35

was to our foreign relations,

2:08:38

but that wasn't my central focus.

2:08:39

Interviewer

Were you involved then...

2:08:42

If you were involved with detainees,

2:08:45

were you involved in the habeas issues

2:08:47

in terms of counseling someone

2:08:51

as to whether you should appeal?

2:08:55

When detainees one at the trial court

2:08:57

Obama would appeal all those cases

2:09:01

to the court of appeals and people often wonder why he did,

2:09:03

why he wouldn't just let them go

2:09:06

if he's trying to these people who the court decided

2:09:07

was not a threat?

2:09:10

Were you involved in counseling

2:09:12

or getting involved in those issues?

2:09:14

-

We absolutely were involved in habeas issues,

2:09:15

but primarily my office was not me personally.

2:09:18

Only when it was a policy issue

2:09:23

of should we fight this habeas case or not?

2:09:25

Because again,

2:09:29

I wanted to have a principled set of policies

2:09:29

as to where we go forward.

2:09:31

The previous occupant, my office, Phil Carter.

2:09:34

The name I couldn't remember earlier.

2:09:36

Please try to splice it in

2:09:38

so it doesn't look like I couldn't remember Phil's name.

2:09:39

But when Phil Carter was there,

2:09:42

the Executive Order Task Force was ongoing

2:09:45

and my office played a key role in that at the time.

2:09:47

So for a year they went through every single detainee,

2:09:50

studied all of the intelligence

2:09:54

on each and every one of those detainees

2:09:56

and categorize them as prosecutable,

2:09:58

transferable or continued law of war detention.

2:10:01

Then there were a few sub categories.

2:10:06

That's why we were engaged in it though,

2:10:09

because if you were looking for the resting place

2:10:11

of all of the intelligence that had been looked at,

2:10:14

it was often somebody in my office who'd been looking

2:10:17

at that intelligence.

2:10:20

My deputy at the time, Alan Liotta,

2:10:22

who's still there.

2:10:24

He had worked through every one of those cases.

2:10:26

And so when you're dealing with a habeas case

2:10:29

there were a number of factors being looked at

2:10:33

where's the evidence gonna lead,

2:10:36

where the courts changed

2:10:37

if you look at track of the decisions,

2:10:40

you'll see that there was an education

2:10:42

that took place on the DC Circuit.

2:10:43

That education caused us to start winning.

2:10:46

And then the issue was,

2:10:49

do you attempt to get certain evidence

2:10:50

before that court that might be very sensitive or not,

2:10:53

that would have an effect on future cases

2:10:57

or something like that.

2:10:59

So those are the kinds of issues--

2:11:00

Interviewer

Would that be policy?

2:11:01

This is really interesting to me.

2:11:02

That'd be policy coming out of your office?

2:11:03

-

It would be a combination of the General Counsel's Office.

2:11:06

Office legal counsel would look at our litigation position

2:11:08

and then we would look at what effect

2:11:12

that would have on detention.

2:11:14

For instance, if for litigation purposes,

2:11:15

a defense counsel wanted to have a doctor go down

2:11:17

and look at a detainee, a private doctor,

2:11:20

well, we've got concerns about for as a policy matter

2:11:23

if this is the enemy

2:11:26

and they are trying to get messages out to their comrades

2:11:28

and they absolutely are and were

2:11:34

whether you have a third party doctor go down

2:11:37

and interview a detainee and potentially

2:11:40

then send it to the press,

2:11:42

send it to other members of Al-Qaeda or something like that.

2:11:43

That's a policy issue,

2:11:46

whether or not the litigation genuinely calls for

2:11:48

a doctor to go in and whether we should just

2:11:52

concede that point or fight it in court,

2:11:54

that's the legal decision.

2:11:57

So it was always a partner to approach

2:11:59

the policy and the legal

2:12:00

and I worked very closely with the lawyers

2:12:03

in the General Counsel's Office on those matters.

2:12:05

Interviewer

So Obama wouldn't really be involved

2:12:07

as to whether to appeal these trial court decisions

2:12:10

the habeas decisions?

2:12:16

There are usually be,

2:12:18

he would let you kind of make that decision?

2:12:19

-

I can not say to what extent the president himself

2:12:24

was involved in making those decisions.

2:12:27

I would anecdotally if I went back through them all

2:12:31

I could probably recall sometimes when the White House

2:12:34

would be more or less involved in general,

2:12:36

meaning the National Security Council staff

2:12:40

or the White House Council staff.

2:12:44

But as a general rule, I thought there was a very,

2:12:46

there was an attempt to ensure an impartiality

2:12:51

and a lack of political involvement

2:12:56

in the litigation decisions making made

2:13:01

by the Department of Justice.

2:13:03

For the most part,

2:13:05

I think sometimes I don't know the anecdotes

2:13:06

when it might've more or less been in there,

2:13:08

but there have been times when litigation positions

2:13:12

were directed by the White House,

2:13:15

but there were a lot of times when they weren't.

2:13:17

Interviewer

So if the White House had,

2:13:20

if the president stated that he wants to close Guantanamo

2:13:23

you would think that he would not want to appeal these cases

2:13:28

because that would be consistent with his policy of

2:13:32

releasing people.

2:13:35

-

So it depends what you mean by close Guantanamo.

2:13:36

Early on, even before I became the DazD for detainee policy,

2:13:39

the president made us give a speech.

2:13:44

I wanna say this, that the archives,

2:13:47

the National Archives in the spring of 2009,

2:13:49

where he mentioned the category

2:13:55

of continued law of war detention.

2:13:58

And that was based on a recognition of this team

2:14:00

doing the most thorough look anyone has ever done it

2:14:03

each and every detainee

2:14:05

came up with at least 48 people

2:14:07

who they said cannot be prosecuted

2:14:10

and cannot be released and cannot be transferred

2:14:13

that will not sufficiently mitigate their threat.

2:14:17

And the entire cabinet level

2:14:20

of the National Security Council, the principals,

2:14:23

had to individually personally agree

2:14:26

with each person to be put in that category.

2:14:29

And it was a very high hurdle to get somebody categorized

2:14:31

as not trans, you know,

2:14:35

the same executive order things

2:14:36

they're in that other category, very high hurdle.

2:14:38

I was able to use that in discussing this with our allies,

2:14:41

because the bottom line is there's never

2:14:44

going to be an administration.

2:14:46

There never was an administration trying harder

2:14:47

to close Guantanamo and get people out of that category

2:14:50

yet by consensus

2:14:54

each one of those 48 was agreed to belong to that category.

2:14:55

So the president early on knew

2:15:01

he's not gonna close Guantanamo

2:15:04

maybe in the ideal way that he wanted to.

2:15:05

So that's when they started working on

2:15:09

opening of a facility at Thomson, Illinois.

2:15:12

And that of course was later blocked by Congress.

2:15:15

But mostly prior to my time as a Daz-D,

2:15:18

the administration was working on

2:15:23

essentially moving Guantanamo,

2:15:25

always bothered me because knowing

2:15:27

what I did about our European allies and other allies,

2:15:29

and just generally being familiar

2:15:31

with the international law of war community,

2:15:34

I knew that moving it to Thomson, Illinois

2:15:37

was not what they were talking about

2:15:39

when they say close Guantanamo.

2:15:41

I also knew that even the,

2:15:43

a lot of the human rights community in the United States,

2:15:45

and when the president gave speeches, he was careful.

2:15:47

He never said I'm gonna close Guantanamo

2:15:50

by moving it north.

2:15:52

In fact, the ACLU had written letters to my office saying,

2:15:56

we'll sue you if you move it to Thomson

2:15:59

because it's colder and it doesn't solve the problem.

2:16:00

So that to this day is an unclear situation

2:16:04

where you talk about it being against our values.

2:16:09

I don't talk about it being against our values,

2:16:14

but some do Guantanamo's against our values,

2:16:15

certainly emblematic of things that are against our values.

2:16:18

But if you mean by closing it,

2:16:22

you're gonna move it to another location

2:16:25

in a colder climate.

2:16:27

That really is there's a disconnect there.

2:16:29

And I think that exists to this day.

2:16:33

Interviewer

But other than the 48,

2:16:36

if they were moved by the lower court to be released,

2:16:38

why would they--

2:16:43

-

Every one approved by a court to be released

2:16:44

was released simple as that.

2:16:46

What you might be thinking of

2:16:48

is the Executive Order Task Force

2:16:50

designated a large number of them for transfer.

2:16:53

But what was unfortunately not clarified like to this day?

2:16:58

I think there were 86.

2:17:02

It might be 85 now.

2:17:03

I'm not sure,

2:17:04

but it was 86 that you often read in the press

2:17:05

are cleared for release.

2:17:07

I never used the term cleared for release.

2:17:09

They were designated for transfer

2:17:12

if you can secure appropriate security assurances

2:17:14

from the host country.

2:17:17

In at least some cases,

2:17:19

those security assurances included prosecution

2:17:21

with a likelihood of a 10 year sentence.

2:17:23

So if you go to that country and say,

2:17:26

you told us earlier that you were gonna

2:17:28

be able to prosecute

2:17:30

and you probably would get a 10 year sentence.

2:17:31

You ready to take this guy?

2:17:33

We'd like to take you up on that.

2:17:34

And they say, you know what? Evidence is stale now.

2:17:36

We don't think we could get the prosecution

2:17:39

to work our courts.

2:17:41

We don't have an ability to control our courts

2:17:42

and we no longer think we can prosecute.

2:17:46

Well, now the security assurance

2:17:48

that informed that Executive Order Task Force

2:17:50

no longer exists.

2:17:53

So even though we have 86 people in that category right now,

2:17:56

and that number I think is increasing that doesn't,

2:17:58

it's not as simple.

2:18:03

It certainly isn't it a lower court

2:18:04

said they're cleared for release.

2:18:06

Everyone in the lower court says it's cleared for release.

2:18:08

We put on the track to release,

2:18:11

but it's this Executive Order Task Force

2:18:13

that didn't say they weren't the enemy.

2:18:15

It said, yes,

2:18:17

they are the enemy they're appropriately legally detained,

2:18:18

but we think their threat can be mitigated

2:18:21

in a less egregious way than holding them in Guantanamo.

2:18:24

Interviewer

And the 48 who couldn't be prosecuted

2:18:29

what we hear is that is tainted evidence

2:18:32

and there's no other evidence that can prosecutor.

2:18:36

And yet, somehow the government knows that dangerous

2:18:39

and therefore can't release them.

2:18:41

Are there other factors that--

2:18:43

-

I'm bothered by that narrative?

2:18:46

Because I don't think that's true, one.

2:18:49

For instance, what is public

2:18:57

is the several detainees who were waterboarded.

2:18:58

All of them are being prosecuted.

2:19:02

I don't know what more,

2:19:04

sometimes people talk about tainted evidence because you,

2:19:06

the interrogation techniques were somewhat abusive

2:19:10

and that would diminish the voluntariness of a statement.

2:19:14

And it would be problematic in a trial.

2:19:18

I think the cases with the most problems

2:19:20

in that area are actually being prosecuted anyway.

2:19:23

So I think that's a convenient rationale,

2:19:25

but I don't know that it's that accurate.

2:19:32

I don't know that it should be,

2:19:34

I don't know that we have to come up

2:19:35

with a rationale like that.

2:19:37

When you detain people in war,

2:19:38

you don't detain them because they committed

2:19:40

some crime in the past that they deserve to be punished for.

2:19:43

You detain them because of their future threat,

2:19:47

because they're the enemy

2:19:49

and they might not have done anything.

2:19:51

I use the example of a guy who graduated from bootcamp.

2:19:52

I was commander of bootcamp.

2:19:55

So I think of the recruits that we sent off to war

2:19:56

after they graduated.

2:20:00

On the day they graduate,

2:20:01

a guy might be the honor grad.

2:20:03

If he's in a war, he's absolutely targetable.

2:20:05

He can be killed.

2:20:08

He can also be captured in detained.

2:20:09

But if you capture him, you detain him.

2:20:12

You wouldn't say now you have to prosecute him.

2:20:13

What will you prosecute him for?

2:20:14

He graduated from bootcamp.

2:20:15

He was first in his class.

2:20:17

He's done nothing wrong.

2:20:18

But he still is the enemy.

2:20:20

He's a future threat.

2:20:21

You don't let him go just because he hasn't done anything.

2:20:22

So often you don't have a specific past bad act

2:20:25

that you have proof beyond a reasonable doubt

2:20:29

that they've committed.

2:20:31

And I think that's the primary reason

2:20:33

you can't prosecute most of these guys,

2:20:35

they were just part of the enemy forces,

2:20:36

but you don't know,

2:20:38

you don't have the detailed evidence that you need to fly

2:20:39

in an Article Three court or in a military commission.

2:20:42

So I think that's the primary reason,

2:20:46

but yes, you always hear,

2:20:47

we have to protect intelligence or we have to,

2:20:49

or the evidence is tainted,

2:20:53

but I think those are over used.

2:20:55

Interviewer

But why do they hold them?

2:20:57

What is about these 48

2:20:58

that is so different from the rest of the people?

2:21:00

-

I don't think it is.

2:21:02

No, I don't think it's so different.

2:21:04

I don't think, I think you shouldn't call it the 48.

2:21:05

You should call it everyone who is not a designated

2:21:07

for prosecution.

2:21:11

And now for prosecution,

2:21:13

you're looking at a very small number.

2:21:14

So of 160 people in Guantanamo,

2:21:15

less than 20 are probably in line currently.

2:21:19

All of them are lawfully detained.

2:21:24

I pushed the [Indistinct] aside a little bit because

2:21:27

their court litigation position

2:21:30

is more like you described for habeas.

2:21:31

But of the others,

2:21:33

they're all legally detained.

2:21:34

They are a threat to the United States.

2:21:37

There's no doubt about that.

2:21:39

The question is how significant a threat

2:21:41

and can that threat do is the cost benefit analysis for us,

2:21:43

such that we should transfer them.

2:21:47

And part of that cost benefit analysis

2:21:49

is gonna be what the host country that takes them

2:21:51

is gonna be able to do,

2:21:54

to protect us or other people

2:21:55

from their potential terrorists.

2:21:58

It's not just 48.

2:22:00

It's all of them.

2:22:01

The 48 are only the ones that you got,

2:22:02

consensus agreement that they are of such a threat

2:22:05

that we're not even gonna try to transfer them,

2:22:11

but it's not because of prosecutions

2:22:15

because there's such a threat.

2:22:16

Interviewer

Another example of where the government

2:22:17

is not doing clear public statement as to what is going on.

2:22:19

-

And in some ways that's the concern

2:22:25

I have with two things that are very different in kind

2:22:29

principled, credible, sustainable detention policies in war,

2:22:33

in any new type of war that I think

2:22:36

that's worth talking about

2:22:38

because it's a different type of conflict than previous ones

2:22:39

and close Guantanamo.

2:22:41

Both valid, but they're very different.

2:22:44

Closing Guantanamo is not necessary

2:22:46

to have a principal detention policy.

2:22:48

They're two different things.

2:22:52

Interviewer

That leads me to a question

2:22:55

about chief mentioned,

2:22:56

the new turfs war,

2:22:57

but before I get to it, when you left.

2:22:58

So I don't forget this question.

2:23:01

When you left the administration,

2:23:03

it was immediately following when two men

2:23:05

were released to Algeria

2:23:07

and some people made a connection in the media that,

2:23:09

that you're leaving was connected to that.

2:23:14

So maybe you could address that.

2:23:16

-

Remember we had these people

2:23:18

who are designated for transfer.

2:23:20

You got to figure the low hanging fruits long gone.

2:23:24

The farmer that over a period of years,

2:23:28

you know what I said about the initial days

2:23:32

of the Bush administration,

2:23:34

where we didn't know if these guys were Al Qaeda

2:23:35

or Taliban or what,

2:23:37

that's no longer the case.

2:23:38

We now have a wealth of intelligence

2:23:39

on all of the people there.

2:23:42

And so these having a principal transfer policy,

2:23:45

I think is part of having a principal detention policy.

2:23:50

And since these guys were categorized

2:23:53

as being able to be transferred,

2:23:56

Algeria was a country that we've had a very good

2:23:58

relationship with, with respect to detaining transfers.

2:24:01

And they provide a certain number of security assurances,

2:24:07

which I can't really get into those details,

2:24:11

but that was an appropriate transfer case.

2:24:13

There is interceding in all of this was

2:24:16

a congressional piece where they were transfer restrictions

2:24:18

imposed by Congress.

2:24:21

I have to say,

2:24:23

I think we sometimes overplay that as being

2:24:24

there's a difficult

2:24:27

a lot of people in the human rights community,

2:24:30

as soon as the president said,

2:24:31

I'm getting rid of the moratorium on Yemen

2:24:33

and transfers to Yemen that happened

2:24:37

in the spring of this year.

2:24:39

And then pressure that caused the

2:24:41

he's gonna announced that we're gonna have some envoys to,

2:24:45

and then he also announced that we're gonna really

2:24:47

try to get the transfer progress

2:24:51

or program up and running again,

2:24:53

a lot of people thought that 86 people

2:24:55

were gonna head out the door,

2:24:57

because again, they kept using this term

2:24:59

cleared for release,

2:25:00

they are no threat to the United States.

2:25:01

That's just not true.

2:25:03

They are a threat to the United States.

2:25:03

It's a question of how much of a threat.

2:25:05

Yes. The transfer restrictions put on us by Congress

2:25:07

where I think creating a bar that was so high,

2:25:10

it was very difficult for any secretary of defense

2:25:12

to ever be able to sign off on a transfer,

2:25:15

but there are exceptions to it.

2:25:19

We were able to use the exceptions for the Algerians,

2:25:21

and it was inappropriate decision to transfer them.

2:25:24

So that was in the works for some time prior to that.

2:25:29

Interviewer

Did you expect others?

2:25:33

Cause few months passed instead of four months

2:25:34

and no one else you'd expect

2:25:36

or were there others in the works?

2:25:38

I don't know what you can reveal,

2:25:39

but maybe your expectations

2:25:41

of never yielding building actual facts

2:25:43

because people thought that would be the beginning of--

2:25:44

-

Yeah. Of some kind of Exodus out of Guantanamo.

2:25:48

My personal view is that it's a very tough issue.

2:25:54

I think you've got people.

2:25:58

I think there's absolute fervent effort

2:26:00

by the administration to make these transfers happen.

2:26:04

I think you've got in Cliff Sloan,

2:26:08

the Current Special Envoy at the State Department,

2:26:10

absolute commitment to transferring people

2:26:13

out of Guantanamo.

2:26:15

I think in Paul Butler.

2:26:16

No, not Paul Butler.

2:26:20

-

The person replacing you.

-

Yes, he didn't quite replace me.

2:26:22

He took a different job.

2:26:24

Don't tell me again--

2:26:28

-

There's too many names

in your line of work.

2:26:30

-

Paul, Paul.

Again, absolutely great guy.

2:26:33

I recommended him for the job.

2:26:34

I think he's ideal fit,

2:26:36

but his focus is on closing Guantanamo

2:26:39

and transferring detainees,

2:26:42

not necessarily in the principal policies

2:26:43

and certainly not some of the other rule of law activities

2:26:46

I had in women, peace and security

2:26:48

and landmine policies and things like that,

2:26:50

that doesn't fall in his purview.

2:26:53

The original plan was we'll keep both,

2:26:55

we'll have a Special Envoy, totally focused on Guantanamo.

2:26:58

And then we'll still have a Daz-D for detaining policy,

2:27:00

but that's when I made the decision to

2:27:03

that I wanted to move on for reasons unrelated to that.

2:27:05

That said, I think he will have difficulty doing it.

2:27:08

It's not that easy.

2:27:11

It's not what a lot of people think

2:27:12

insiders and those outside

2:27:15

that it's just a matter of political will.

2:27:18

If the president of the United States

2:27:20

and really wants to do it, he can do it.

2:27:23

Yeah. But there's a consistency issue there.

2:27:25

I have a problem with staying at war

2:27:30

and not having law of war detention.

2:27:34

I don't think that's a morally responsible position

2:27:36

for a country to have.

2:27:38

Then what you end up with is an incentive to kill.

2:27:40

I mean, imagine you hand a rifle to a 19 year old soldier

2:27:43

and say you, here's a marksmanship training.

2:27:47

We're at war.

2:27:50

You have legal authority to kill another human being.

2:27:51

You can also capture that human being in some circumstances,

2:27:55

but if you capture them,

2:27:59

if you wanna continue detaining them,

2:28:00

you better have proof beyond a reasonable doubt

2:28:01

that they committed some crime in the past.

2:28:03

Well, you've just incentivized killing

2:28:05

and it should disturb us all that with the drawdown of,

2:28:08

we don't have any new people going to Guantanamo

2:28:14

but we have a clear uptick in the number of drone strikes,

2:28:17

for instance, and that,

2:28:20

I think that disparity is something that you concern us.

2:28:22

My biggest concern is not so much that

2:28:26

we don't close Guantanamo fast enough.

2:28:29

I totally get why we need to do that

2:28:31

from a foreign relations perspective.

2:28:33

I totally get why more important,

2:28:36

I think is having principles, credible, detaining policies,

2:28:38

wherever we detain people.

2:28:41

And I think we have an are doing that.

2:28:42

I would like to talk about some of the accomplishments,

2:28:44

I think,

2:28:47

but I think where I'm most concerned

2:28:47

is that we enter into a state of quasi war.

2:28:50

That's perpetual.

2:28:53

Not perpetual detention.

2:28:54

Indefinite detention is part of any war,

2:28:56

but it ends with the end of the war.

2:28:58

My concern is that we become too comfortable

2:29:00

with the war we're fighting

2:29:02

by minimizing the number of people in Guantanamo

2:29:04

and the competent criticism of it

2:29:08

by reducing the number of drone strikes,

2:29:11

but still having them.

2:29:13

And then we enter a state where we're constantly

2:29:15

in a little bit of war.

2:29:18

Where we can do a very sanitized drone strike

2:29:20

in a far off location,

2:29:23

we don't feel the concept that war is hell,

2:29:24

war becomes a little more like purgatory instead of hell.

2:29:27

And we become too comfortable with it.

2:29:30

That's a dangerous situation.

2:29:32

Interviewer

That is amazing.

2:29:34

That is what people talk about

2:29:35

and you just articulate it really well.

2:29:36

That was really, that was great.

2:29:38

So I wanna go back to that,

2:29:41

but just reminded me of it.

2:29:42

So if we actually end war in Afghanistan next year,

2:29:44

which is what people believe,

2:29:49

how does that tie in with your understanding of Guantanamo?

2:29:51

-

My view when I took over

2:29:56

and I have a chart that I probably should have brought

2:29:58

cause I use it everywhere.

2:30:00

I originally drew it on a napkin

2:30:02

to describe the legal framework,

2:30:04

where I have it split law of peace, law of war,

2:30:07

human rights law, humanitarian law,

2:30:10

being the applicable portions of those bodies

2:30:13

of law that deal with detention.

2:30:17

And then the implementing legislation of human rights laws,

2:30:18

criminal procedure,

2:30:21

the implementing legislation for humanitarian laws.

2:30:22

We don't really have any,

2:30:25

and that's one of the problems you had no

2:30:26

court structure look there.

2:30:28

So when you look at that framework,

2:30:29

then I would describe the conflicts we had as

2:30:33

Al Qaeda, the counter-terrorism fight

2:30:37

is clearly over on the law of war side.

2:30:40

We capture people under the law of war.

2:30:42

We hold them in Guantanamo under the law of war.

2:30:44

If we prosecute them for a bad act,

2:30:46

we're doing that over here.

2:30:49

Whether it's military commission or Article Three court.

2:30:51

That's to punish them.

2:30:53

These people are not being punished.

2:30:55

My policy always was,

2:30:56

we hold them in the least restrictive means possible

2:30:58

consistent with our national security interests.

2:31:00

They're not being punished.

2:31:02

If someone gets convicted of a war crime

2:31:04

in the military commission,

2:31:06

they get held in a different location and that's punishment.

2:31:07

This is not punishment.

2:31:11

Iraq by the time in 2010,

2:31:13

as we were pulling out,

2:31:15

we had already shifted so that while

2:31:16

we may have captured people under the law of war,

2:31:19

we're turning them over to the Maliki

2:31:21

and the Iraqi government

2:31:23

in a law enforcement framework

2:31:24

because the war was over for them if it ever existed,

2:31:26

they were in a peace time scenario

2:31:29

where law enforcement is what punishing these people.

2:31:31

There might be a Delta,

2:31:34

as we pointed out here,

2:31:35

cause you might capture somebody for being the enemy

2:31:36

and you don't quite have most cases.

2:31:38

You're gonna have captured them

2:31:41

because you knew they did something

2:31:43

and it will coincide with a criminal trial.

2:31:43

Some cases it wouldn't.

2:31:47

If the intelligence was such that you absolutely know

2:31:48

they're a key player in the organization,

2:31:52

but you don't know anything in particular

2:31:54

they've done in the past.

2:31:55

Then you've got a problem.

2:31:57

You absolutely can capture them or kill them in

2:31:58

under the law of war,

2:32:00

but you might not have enough evidence to prosecute them.

2:32:01

Fortunately, in Iraq, they don't have the same

2:32:04

beyond reasonable doubt standard we have.

2:32:06

So that Delta is much smaller.

2:32:08

Afghanistan, I put in the middle

2:32:10

because we were in the process of transitioning.

2:32:12

We are now closer to where we were in Iraq

2:32:14

because in a counter-insurgency

2:32:16

you've got to end the war in such a way that you've made

2:32:18

you're at peace and only people are only held

2:32:24

under criminal justice paradigm.

2:32:27

Afghanistan is very close.

2:32:29

When we end the war in 2014,

2:32:31

at least our involvement

2:32:33

and Karzai doesn't think his at war anyway,

2:32:35

I think the Taliban need to leave Guantanamo.

2:32:38

That has always been my view

2:32:41

that it's time for the Taliban to go home

2:32:42

because they're part of this counterinsurgency

2:32:44

that's not over,

2:32:46

not necessarily true of Al Qaeda.

2:32:47

Now whether the president has in mind

2:32:50

to coincidentally wrap up the conflict

2:32:52

we'll locate at that time,

2:32:54

that may be the case.

2:32:55

But as a theoretical construct,

2:32:57

I do not believe our war without Al Qaeda,

2:33:00

which is a more global in nature,

2:33:03

goes to Yemen, Somalia and other places.

2:33:05

I don't think that necessarily ends

2:33:06

just because we pull out of a geographic

2:33:08

region in Afghanistan.

2:33:10

Interviewer

Has the president heard

2:33:12

what you just described?

2:33:13

-

I don't know I would love to show him my chart,

2:33:15

but sometimes like in any organization,

2:33:17

I've described some of the things that frustrated me

2:33:22

in the Bush administration,

2:33:24

there were undoubtedly things that frustrated me here.

2:33:25

Sometimes there was such a focus on closing Guantanamo

2:33:30

that that was translated into hatred of law of war detention

2:33:33

and our special forces who are trying to win the war

2:33:38

often want to capture people.

2:33:41

They wanna be able to.

2:33:44

So there's two reasons.

2:33:45

We have a worldwide detaining conference every year.

2:33:49

I had two high-level military officers

2:33:52

who wanted to speak at my conference.

2:33:55

I won't say who they were

2:33:57

cause they might not wanna be part of it.

2:33:58

One of them gives a speech about how detention

2:34:00

is the moral alternative to killing in war.

2:34:02

We should not be ashamed of detaining people without trial.

2:34:05

That's what you do in war.

2:34:08

And the last thing our military officers want to do

2:34:10

is create a war time scenario,

2:34:13

where we incentivize killing.

2:34:14

Next senior war fighter who's more involved

2:34:16

in actually bringing the war to a conclusion right now says,

2:34:21

we need to capture people

2:34:23

cause we need the intelligence they have.

2:34:24

I need to pull the cell phone out of their pocket

2:34:26

and look at who they called.

2:34:28

I need to look at their laptop computer,

2:34:29

and I need to pull out the contents of their pockets.

2:34:31

I need to interrogate them.

2:34:33

And we've gotten good at that stuff

2:34:35

much better than we were in the original days of Guantanamo.

2:34:36

And we lose all that intelligence

2:34:40

when we lose the ability to capture and detain them.

2:34:42

Capturing detain should not mean capture and detain briefly

2:34:45

so that you can only on cases where there's an indictment

2:34:49

and you can prosecute.

2:34:51

And I fear there's no official policy

2:34:52

that the administration has to go there.

2:34:55

But I fear because we have no place to put a guy.

2:34:56

Warsame was the example

2:35:00

where we kept them at sea for months.

2:35:02

And I wanted that to happen

2:35:04

because I wanted to kind of do a proof of the concept

2:35:06

that we can detain under the law of war.

2:35:09

But then we found an ability to prosecute them

2:35:11

that kind of transferred them to the criminal category.

2:35:13

But we don't have a lot of examples of law of war detention,

2:35:16

that stays law of detention in the current conflict

2:35:21

and that disturbs me

2:35:24

and it disturbs our commanders in the field.

2:35:25

Interviewer

So what you're really saying,

2:35:27

and you said it earlier, but, and I have my notes,

2:35:29

but now it kind of works.

2:35:31

You're really wanna redraft the Geneva Conventions

2:35:33

because then they didn't work for you?

2:35:37

-

So because they didn't work for us.

2:35:41

I think in that,

2:35:44

so when I look at that chart

2:35:46

and I draw a little empty hole here

2:35:47

for our domestic implementing legislation,

2:35:51

but also a little hole up in the international law side,

2:35:53

because while you have humanitarian law in general,

2:35:56

the Geneva Conventions are international armed conflict

2:35:58

of privileged belligerence.

2:36:02

We're dealing with non-international armed conflict

2:36:03

of unprivileged belligerents or unlawful combatants,

2:36:06

not a whole lot of law,

2:36:08

even in international law off of that.

2:36:09

And I do believe that that there is room

2:36:11

for that kind of law,

2:36:15

but that doesn't mean you don't have authority

2:36:16

to do what you're doing.

2:36:17

Antecedent to the Geneva Conventions

2:36:19

was an assumption under the customs of customary law of war

2:36:21

if you can kill somebody,

2:36:26

you can certainly capture and detain them.

2:36:27

The problem is you don't have all the reticulated rights

2:36:29

and procedures that the Geneva Convention

2:36:33

would require for a state to state armed conflict.

2:36:35

So there's a feeling we've become such a society

2:36:38

that's so used to having the law

2:36:41

regulate everything we do

2:36:42

that the idea of you have an unregulated situation

2:36:44

and that's what Bush was facing.

2:36:47

He puts a bunch of people in Guantanamo

2:36:49

on a global war on terror,

2:36:50

that's got to make people uncomfortable.

2:36:53

And then there's apparently no body of law

2:36:55

that governs what we do with them In Guantanamo.

2:36:57

It's gonna make everyone uncomfortable.

2:36:59

What we tried to do in my office is fill in that gap

2:37:01

at least with policy.

2:37:05

And that's, I think the right way to develop the law

2:37:06

is first use it as a matter of best practices.

2:37:10

And then if it makes some mistakes, figure out what's right.

2:37:13

And then eventually we kind of a

2:37:17

Fifth Geneva Convention if you will.

2:37:18

The ICRC is sponsoring a project like that

2:37:20

at the quadrennial review conference

2:37:23

of the Geneva Conventions back in 2010 or 11, 11 I think,

2:37:24

they launched on a project to look at detention

2:37:30

in non-international armed conflicts.

2:37:32

And whether we need more law in that.

2:37:34

There's a reluctance everyone has

2:37:37

to have a Fifth Geneva Convention.

2:37:39

That's a painful, horrible process.

2:37:40

The U.S. doesn't always do well in those kinds of settings,

2:37:43

but the recognition that there's a gap

2:37:45

and I think a huge thing.

2:37:48

And we have since then work

2:37:49

toward a best practices approach.

2:37:51

You may be familiar with the Copenhagen process

2:37:53

guidelines and principles for detention.

2:37:55

And I don't know the exact title,

2:37:58

but it's essentially 21st century armed conflict

2:37:59

with a transnational armed group

2:38:02

in an international operation,

2:38:04

military operations setting.

2:38:07

And what I'm very proud of is that process kind of began

2:38:08

as an indictment on the United States five years earlier.

2:38:14

By the time it ended,

2:38:17

and we went to the last session,

2:38:18

we really agreed with every single thing in that document.

2:38:20

And what's in that document as best practices if you will,

2:38:23

it doesn't use that term is U.S. policy.

2:38:26

And I know I'm droning on here

2:38:30

on things you haven't asked about,

2:38:34

but these are things I think are important

2:38:35

to remember in history

2:38:36

is a recognition that this war is different

2:38:40

while my little chart analysis of where the law of war

2:38:43

allows us to detain and capture.

2:38:47

The answer is till the end of hostilities,

2:38:49

that doesn't give people a lot of comfort

2:38:52

when the end of hostilities is much harder to identify

2:38:54

and who the enemy is, harder to identify.

2:38:58

These guys aren't wearing uniforms,

2:39:00

you might have the wrong guy. It's a much greater chance

2:39:01

you have the wrong guy.

2:39:04

And you're not gonna have any signing ceremony

2:39:05

on the USS Missouri to end the war.

2:39:07

Osama bin Laden getting killed was probably the closest

2:39:11

you'd get to a moment where you could have claimed

2:39:13

such an enemy.

2:39:15

We're not gonna have that.

2:39:16

So we've developed review processes

2:39:18

that allow us to kind of on an individualized basis,

2:39:22

look at each of these detainees,

2:39:25

make sure we've got the right guy,

2:39:26

make sure that their threat is still sufficiently high,

2:39:28

that we have to keep detaining them.

2:39:31

If you will

2:39:33

it's a way of ending the war on an individual way

2:39:34

by individual basis.

2:39:35

I think that's a something we should be proud of.

2:39:37

It's a principled approach to this type of warfare

2:39:39

and it's reflected in the Copenhagen process

2:39:43

and it's reflected in U.S. practice.

2:39:46

Interviewer

But you understand why people in the country

2:39:50

would be concerned because they don't see the rules

2:39:53

as you understand, the rule of law should govern how we act.

2:39:56

And you say policy ultimately is what governance this.

2:40:00

-

But policy that's more restrictive against the government

2:40:05

than the rule of law would be.

2:40:08

The simple rule of law under

2:40:09

International Humanitarian Law right now would be,

2:40:11

you can hold them till the end of hostilities.

2:40:13

And that's a pretty ambiguous thing.

2:40:15

As the courts the DC Circuit has made clear,

2:40:20

we are lawfully holding everyone that's there.

2:40:23

Every single detainee in Guantanamo

2:40:25

has that access to the U.S. District Court

2:40:27

and in Washington DC.

2:40:30

And they have the ability to argue

2:40:32

that their detention is unlawful. They lose.

2:40:34

Their detention is lawful,

2:40:38

at least right now.

2:40:39

And there's all kinds of circumstances that could,

2:40:40

change in the future.

2:40:42

It's lawful.

2:40:43

The question is,

2:40:44

do we want to restrict ourselves further than that?

2:40:46

And that's a balancing test because

2:40:49

it doesn't make any sense to release a person

2:40:51

who is then targetable with a drone strike.

2:40:55

Why would you do that during the war?

2:40:59

Yet we've got to bring this war to a conclusion.

2:41:02

So you have to have an end game for Guantanamo.

2:41:05

You can't keep Guantanamo alive forever.

2:41:06

You can't more importantly,

2:41:08

you can't stay at war forever,

2:41:10

in a legally cognizable war.

2:41:12

You may stay in a fight with terrorism.

2:41:15

Terrorism is not gonna go away,

2:41:18

but we fought it with a law enforcement framework before.

2:41:20

And I think ultimately we need to fight it

2:41:24

with a law enforcement framework again.

2:41:26

In the meantime,

2:41:29

I do not think it was wrong to go to war as some people do.

2:41:30

I'm okay with that, but we need an end game.

2:41:33

Interviewer

For the 48 people,

2:41:36

what's the end game for them?

2:41:37

-

In my book on the day that we say we're no longer

2:41:40

in a lawfully cognizable, armed conflict with Al Qaeda,

2:41:44

if they cannot be prosecuted, they go home.

2:41:48

They get released and that is going to,

2:41:51

and we will put people at risk,

2:41:54

but after World War II,

2:41:55

we released hundreds of thousands of prisoners of war.

2:41:57

Some of them were of a somewhat similar elk

2:41:59

and they did endanger people.

2:42:03

And we released people in a criminal context every day

2:42:06

that endangered people, but the rule of law,

2:42:09

maintaining the rule of law

2:42:11

is more important than the particular threat

2:42:13

as long as it's manageable.

2:42:17

Closing Guantanamo is not more important

2:42:19

than our human lives.

2:42:22

The rule of law is.

2:42:23

Interviewer

And how do we,

2:42:24

I mean, realistically people say we can never

2:42:26

find the end game,

2:42:29

the end time with the war on terror or Al Qaeda

2:42:30

cause they keep sprouting up in different countries.

2:42:34

-

I think that's a great point, but we have to look at,

2:42:37

then we have to look at a bigger picture problem

2:42:41

of the idea of being at war.

2:42:43

A legally could noticeable war where the commander in chief

2:42:47

has the kinds of increased authority

2:42:49

that he has when we're at war.

2:42:53

That's a problem.

2:42:56

And I think our focus should be on defining

2:42:57

when Al-Qaeda's threat is sufficiently lessened,

2:43:01

that we can go back to that law enforcement regime.

2:43:06

That should be our focus.

2:43:10

I say that should be.

2:43:13

And that doesn't mean I'm saying

2:43:14

we need to end the war today.

2:43:15

That's that involves an intelligence analysis

2:43:16

that is beyond anything I could talk about or know about.

2:43:18

And I'm absolutely in agreement

2:43:22

that when the threat is significant,

2:43:24

we need to be able to go to war.

2:43:26

I have no problem with a war against a non-state actor,

2:43:27

a transnational armed group,

2:43:30

but we should be looking to get out of it.

2:43:32

That should be our focus, not closing Guantanamo.

2:43:34

By focusing on closing Guantanamo,

2:43:37

ironically, we perhaps extend the war

2:43:39

because we're one putting people back on the battlefield

2:43:43

when we transfer them back out.

2:43:46

The percentage rate that they're re-engaging is fairly high,

2:43:47

but we also are,

2:43:51

we're diminishing the very thing

2:43:54

that causes us to be criticized for being at war.

2:43:56

When you do a drone strike,

2:43:59

any kind of you remember when President Clinton did

2:44:00

the Tomahawk missile attack into the pharmaceutical plant

2:44:03

in Sudan and then to Afghanistan

2:44:06

criticism for a couple of days went away.

2:44:08

Cause you can't do anything about it.

2:44:12

A detainee persists.

2:44:13

And it's a constant reminder that you're still at war.

2:44:16

In that way,

2:44:19

I would argue that Guantanamo is actually a benefit to us

2:44:20

because it reminds us we're at war

2:44:22

and war is not a situation we wanna remain in.

2:44:24

Interviewer

So drone strikes to you are they legal?

2:44:28

-

Yes. I don't have a legal problem.

2:44:33

Well, you can't just answer that in the,

2:44:35

that's like it's killing legal,

2:44:39

killing in the right circumstances is illegal.

2:44:41

Killing using a drone, that's a weapon system.

2:44:42

You've got a couple legal issues

2:44:46

you got is the target the person you killed

2:44:47

is that person killable under the law of war.

2:44:50

Are you at war and is a person at an appropriate target.

2:44:53

That's one legal issue.

2:44:55

Then you've got another legal issue

2:44:57

of going into the airspace of a

2:44:58

or ground space of a another country

2:45:00

that may have given you permission.

2:45:03

You might be an international waters.

2:45:05

We've picked up Warsame in international waters

2:45:07

in the Gulf of Aden.

2:45:09

So you have different legal issues.

2:45:10

So to just say, drone strikes are illegal.

2:45:12

I can't say that.

2:45:14

But the idea that the drone as a weapon system

2:45:15

is somehow different in kind is not

2:45:19

that's not a legitimate criticism to me.

2:45:25

What drones should remind us though,

2:45:28

is that the only way they're legal

2:45:30

is if we're in a armed conflict.

2:45:32

It's not legal as a law enforcement tool.

2:45:35

And at some point we have to end the armed conflict.

2:45:37

I'm bothered by the sequencing.

2:45:39

The normal sequencing in war would be

2:45:41

stop the drone strikes, close your prisoner of war camp.

2:45:44

Not close your prisoner of war camp

2:45:49

and keep your drone strikes going for years thereafter.

2:45:51

That doesn't make sense.

2:45:53

Interviewer

Yep.

2:45:55

I'm very impressed.

2:45:58

That's very intelligent.

2:45:59

It made me think a couple of things

2:46:01

I could go on with you forever on these conversations,

2:46:03

but I think we're gonna have to stop.

2:46:05

-

And I think I'm getting picked up here.

2:46:07

Interviewer

Were you aware of

2:46:11

when Osama bin Laden was killed?

2:46:13

-

I wasn't personally in the loop

2:46:19

that that was going to happen.

2:46:22

I was close to the loop.

2:46:24

So as soon as it did happen I was aware of it.

2:46:26

Interviewer

But you knew that

2:46:30

they were on track with that.

2:46:31

-

And that was, I mean, that's where

2:46:33

that whole review process thing comes into play.

2:46:35

If I were a detainee and I truly were not

2:46:38

at war with the United States,

2:46:40

I'd say, I swore an oath to that human being.

2:46:41

And he's now dead.

2:46:46

I'm no longer in that oath.

2:46:47

I'm no longer at war with the United States.

2:46:48

Of course you have to then see if that's true.

2:46:51

But from my perspective, as the detainee guy, I would say,

2:46:53

now we have to look at whether the war is over

2:46:58

for that person.

2:47:01

It's a different kind of war.

2:47:03

It's not like Nazi, Germany, surrendering.

2:47:04

Interviewer

The first person who talked

2:47:08

about closing what general in this way

2:47:09

and that was really important

2:47:11

because most people took it much more simplistically.

2:47:13

And it's because of your knowledge of the law of war.

2:47:16

I mean, it's just fascinating to me in terms of seeing that.

2:47:19

Time is really because I know you need to go.

2:47:23

Is there anything that you would like to add

2:47:26

that maybe you thought of as you were talking

2:47:29

that would be helpful?

2:47:30

Cause I think everything you've said

2:47:31

is exceptionally helpful and has not been heard by any

2:47:33

has never been said by anyone else we've interviewed,

2:47:36

not been heard but people watch these interviews.

2:47:39

-

I guess you think if I knew I was gonna do,

2:47:42

I've never talked this much about this subject

2:47:46

as I have here.

2:47:48

And you would think I would prepare something

2:47:49

that I actually wanted to say, I don't have anything.

2:47:51

I guess my only point would be

2:47:53

throughout this decade or more than a decade,

2:47:55

I have really watched a pendulum swing

2:47:57

with a polemic discussion in this country

2:48:00

that's really been at the extremes.

2:48:03

What you're doing is completely unlawful

2:48:05

and you're violating the law of war

2:48:07

to you're coddling people down in Guantanamo

2:48:09

and releasing them in a way that will kill Americans.

2:48:12

And really, we need to get to a place

2:48:17

where that pendulum swing is brought to a minimum.

2:48:19

We can't keep Guantanamo alive forever,

2:48:23

but on the other hand we shouldn't be having that

2:48:25

as our singular focus either.

2:48:27

Having principal policies

2:48:30

is really much more important in the longterm.

2:48:31

I recognize we're never gonna convince,

2:48:35

the population in France that Guantanamo

2:48:37

is actually a good thing and we do a very noble job there,

2:48:40

but I think we do.

2:48:43

I think our policies right now,

2:48:44

every single person you capture in war,

2:48:46

the ICRC has gets access to them, full access unimpeded.

2:48:48

They get access to every detention site we have

2:48:52

where they can have access to every detention site we have.

2:48:57

And we give a review process,

2:48:59

when we capture somebody within 24 hours

2:49:02

the commander is deciding if they got the right guy.

2:49:04

Within 60 days of board of three field grade officers

2:49:06

is deciding that.

2:49:08

Every six months thereafter, we're doing it again,

2:49:10

full process to make sure we're doing it right.

2:49:12

And we absolutely investigate every allegation

2:49:17

of detaining misconduct.

2:49:21

Those are the important things to get absolutely right.

2:49:22

And then our reputation is the next thing we have to work on

2:49:26

because the reputation doesn't get,

2:49:31

unfortunately, I've watched these things get right.

2:49:33

And that hasn't solved all our reputational problems.

2:49:36

We need to work on that.

2:49:38

All that said,

2:49:39

though I still think the primary focus for us

2:49:40

from a big picture perspective is how do we define this war?

2:49:42

How do we define the acceptable circumstance

2:49:47

that allows us to end it?

2:49:49

Not, how do we close Guantanamo?

2:49:51

It's like a red herring issue.

2:49:53

Interviewer

That's wonderful.

2:49:56

And in that context is also maybe creating new legislation,

2:49:57

even though you said countries are resistant to it.

2:50:01

-

And then the legislation is another political.

2:50:04

There's been a bunch of red herrings,

2:50:07

whether you hold them in Guantanamo or Illinois,

2:50:09

I think that's a red herring issue.

2:50:12

Interviewer

I'm talking about international legislation.

2:50:13

-

And then there's the domestic legislation

2:50:17

on international transfers as well any red hearing issue.

2:50:19

And then you've got international legislation

2:50:22

you're talking about a treaty.

2:50:24

That's I think a ways off,

2:50:25

I think it's in a way at first,

2:50:28

I thought that should have come a long time ago.

2:50:30

There's a a great quote

2:50:33

I remember from the,

2:50:34

and it's funny I haven't said it in a long time,

2:50:37

but I remember it from the archway at Yale

2:50:39

where I used to go to see if I got a ticket

2:50:43

for illegally parking

2:50:44

and you go through that archway,

2:50:47

it was an Oliver Wendell Holmes quote.

2:50:47

"The life of the law has not been logic, but experience."

2:50:49

And it bothered me at first because I love logic.

2:50:51

I don't want bad facts to make bad law.

2:50:56

Now I kinda see it.

2:50:58

I think he meant it in a positive way.

2:50:59

And I understand why,

2:51:01

because if we had tried to come up with the law

2:51:02

or the policies or whatever back in 2002,

2:51:05

we would have gotten it wrong.

2:51:07

And we needed this period of time to with experience,

2:51:08

learn that, no, it's not that easy to say

2:51:14

you can prosecute or more release them

2:51:16

that doesn't work in war.

2:51:18

No, these kinds of processes to decide

2:51:20

if we've got the right guy that doesn't work,

2:51:23

we needed the experience to get it right.

2:51:25

Now is the time that if we need to draft

2:51:27

that new law internationally we can do it.

2:51:30

Interviewer

Got it. That's a great way to end it.

2:51:34

I'm glad you added that quote.

2:51:35

I think that was really helpful.

2:51:37

That summarized a lot of what you've been saying too,

2:51:38

in terms of who you are and how you see the world.

2:51:41

We need 20 seconds of room tone

2:51:45

before we can just turn off the light like so.

2:51:47

-

All right. Well thank you for doing this too.

2:51:50

I think it's an important thing.

2:51:53

I'm glad somebody cares enough to get it right so

2:51:54

I appreciate it.

2:51:57

-

Well, thank you.

I mean, this is an amazing interview and amazing interview,

2:51:58

but I'll let Johnny take over.

2:52:00

Man

Begin room tone.

2:52:04

End room tone.

2:52:20

Lietzau, William - Interview master file

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