Lietzau, William - Interview master file
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Transcript
Transcripts may contain inaccuracies.
- | Good morning. | 0:05 |
- | Morning. | |
Interviewer | We are very grateful to you | 0:07 |
for participating in the "Witness to Guantanamo Project." | 0:08 | |
We invite you to speak of your experiences | 0:13 | |
and involvement with issues concerning Guantanamo Bay, Cuba. | 0:15 | |
We are hoping to provide you | 0:20 | |
with an opportunity to tell your story in your own words. | 0:21 | |
We are creating an archive of stories | 0:25 | |
so that people in America | 0:28 | |
and around the world will have a better understanding | 0:29 | |
of what you and others have experienced and observed. | 0:33 | |
Future generations must know what happened in Guantanamo | 0:37 | |
and by telling you a story you're contributing to history. | 0:40 | |
And we appreciate your willingness to speak with us today. | 0:44 | |
If at any time during the interview, | 0:48 | |
you want to take a break, just let us know we can do that. | 0:50 | |
And if you say anything and you | 0:52 | |
would like us to remove and we can remove it | 0:54 | |
at that point too. | 0:56 | |
- | Okay. | 0:57 |
- | 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. | 1:06 | |
- | 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 |
- | Birthdate, nine November, 1960, making me now 53. | 1:22 |
Interviewer | And what your marital status? | 1:28 |
- | 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 |
- | 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 | |
- | 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 |
- | So San Diego. | 6:01 |
Interviewer | Is that where you were at 9/11? | 6:03 |
- | 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 | |
- | 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 |
- | 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 | |
- | 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 | |
- | 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 | |
- | 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 |
- | 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 | |
- | 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 | |
- | 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 | |
- | 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 |
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