Margulies, Joseph - Interview master file / Witness to Guantanamo / Duke Digital Repository

Cameraman

Okay, we're rolling.

0:05

Interviewer

Okay, good morning.

0:06

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Morning to you.

0:08

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Thank you.

We are very grateful to you

0:09

for participating in the

0:11

Witness to Guantanamo Project.

0:12

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Happy to be here.

Interviewer

Okay.

0:15

We invite you to speak of your experiences

0:16

and involvement with detainees

0:18

who are held at Guantanamo Bay, Cuba.

0:20

We are hoping to provide you

0:22

with an opportunity to tell your story

0:24

in your own words.

0:26

We are creating an archive

0:28

of stories so that people in America

0:29

and around the world will have a better understanding

0:32

of what you and others have experienced and observed.

0:34

Future generations must know what happened at Guantanamo

0:39

and by telling you a story you contributing to history.

0:42

We appreciate your courage

0:46

and willingness to speak with us today.

0:47

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Happy to.

0:49

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Thank you.

And if there's any time during then interview

0:50

you wanna take a break, let me know.

0:53

And if there's something you said

0:55

you'd like us to remove, we can remove it

0:57

if you let us know as well.

0:58

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Okay.

1:00

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And we'd like to begin

with some basic or general information,

1:01

beginning with your name and hometown and birthdate perhaps.

1:05

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My name is Joe Margulies.

1:11

I live now in Chicago

1:12

and I was born October 6, 1960.

1:14

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Which makes you?

1:18

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51.

Interviewer

And your marital status and education?

1:20

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I'm married and I have a law degree.

1:25

Instructor

And current occupation?

1:30

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I'm a lawyer and law professor.

1:32

Interviewer

Okay, and where are you a law professor?

1:35

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Northwestern University.

1:36

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Okay.

Is there anything else about your schooling

1:40

or background that you think might be helpful

1:41

before we move on?

1:43

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You guys can judge better than I can what's helpful.

1:45

I'm happy to answer anything you ask though.

1:47

Interviewer

Okay, well then why don't we begin

1:49

and say how it was that you became involved

1:51

in Guantanamo 'cause you were there

1:53

on the ground floor when it just started.

1:54

-

Right.

1:57

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And maybe you can say

how you were brought in,

1:59

then we can go from there.

1:59

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Okay.

2:01

So the story begins with the President's,

2:04

this is President Bush,

2:08

President's announcement on November 13 of 2001.

2:09

That's when he first announced the plan

2:14

for military commissions.

2:16

At that time, we now know

2:19

that they were considering Guantanamo,

2:21

but they hadn't announced that yet.

2:23

It was just at that point, a plan for military commissions.

2:24

And as they were originally described,

2:28

the Commission's Board,

2:32

no relationship to what you and I have come to

2:35

think of as a fair trial,

2:39

the requirements of a fair trial.

2:41

There's no presumption of innocence, for instance.

2:43

There was no right to remain silent and so on.

2:45

It was obvious even with that first announcement

2:49

that this could prove very problematic.

2:53

And at that moment in time

2:56

there were the beginning of very worrisome indications

2:59

that the United States might go astray

3:05

in its response to 9/11.

3:07

For instance, Alan Dershowitz had already proposed

3:10

his torture warrants.

3:12

There was already talk that the people who were held

3:14

would not be entitled to protections

3:17

under the Geneva Conventions.

3:19

There was, 9/11 had been constructed

3:21

within minutes of the attack as not only an act of war,

3:24

but an act of war for which the

3:29

most important response had to be

3:34

securing greater intelligence.

3:38

It was perceived immediately as an intelligence failure.

3:39

And immediately the key to preventing the next 9/11

3:42

was gathering intelligence.

3:46

And when you add that to talk about

3:48

breaking down protections for prisoners

3:50

and I don't know maybe torture

3:52

isn't such a bad idea after all,

3:53

there was a great deal of concern,

3:56

at least among some of us.

3:58

So after that phone call,

4:00

or after that announcement on the 13th,

4:01

my wife and I put together a very small,

4:06

a conference call basically.

4:10

We reached out to friends of ours

4:11

in the death penalty and human rights communities

4:14

that we thought would be interested in this issue.

4:17

Interviewer

I'm sorry to interrupt you,

4:19

but can you just give us some background?

4:20

What were you doing at that time?

4:21

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We were living in Minneapolis at that time.

4:23

I was a criminal defense lawyer and a civil rights lawyer.

4:25

So my background is,

4:28

I've always been, I graduated from law school in '88.

4:29

I clerked for one year,

4:31

then I went down to Texas

4:33

and started doing death penalty work

4:35

representing folks on death row in Texas.

4:36

And moved to Minneapolis

4:39

and began just being a indigent criminal defense lawyer

4:42

in '93 or four, I think.

4:46

And so I was in, by that time I was in private practice

4:50

doing civil rights, criminal defense,

4:54

and still some capital defense work.

4:57

Interviewer

And your wife you said you were,

5:00

she wrote the letter with you.

5:02

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No it wasn't a letter,

5:03

it was just, we reached out to folks and made emails

5:04

and set up a conference call and phone calls.

5:07

My wife is Sandra Babcock.

5:12

Sandra is a very prominent and gifted death penalty lawyer

5:13

who I met in Texas doing death penalty work.

5:18

And her practice at that time was

5:23

representing folks on death row around the country,

5:27

but mostly in Texas

5:30

and mostly on behalf of Mexican nationals.

5:32

That's her focus, her niche is

5:35

the representation of foreign nationals

5:39

and the importation of international human rights norms

5:41

into domestic capital litigation.

5:44

So as it happened,

5:46

she just happened to be very busy at that period

5:47

and so couldn't really remain involved in this.

5:50

But the first phone call that took place

5:52

on like a few days after the 13th.

5:55

My memory is that the 13th he makes the announcement,

5:58

we read about it on the morning of the 14th,

6:01

sitting around our kitchen table

6:04

reading the newspaper and think, well this isn't right.

6:05

And we put together this phone call

6:07

and we reached out to the Center for Constitutional Rights,

6:10

Michael Ratner, who Sandra knew,

6:12

I didn't know him at that time.

6:15

I knew of him, but I didn't know him.

6:16

And Michael reached out to people like Jules Lobel,

6:18

who's worked with Michael.

6:23

He's a lawyer at the University of Pittsburgh.

6:24

We reached out to David Cole at Georgetown,

6:27

Clive Stafford Smith, who was a colleague of ours

6:32

down in new Orleans, from our death penalty world.

6:34

A couple of other people in the death penalty community.

6:38

And we had a phone call.

6:41

My memory is,

6:42

he makes the makes the announcement on a Tuesday,

6:44

I think, I wanna say November 13th is a Tuesday.

6:47

So we reach out to people on a Wednesday

6:49

and we have the phone call for Friday.

6:51

And that phone call eventually became

6:53

the team that handled the litigation in Rasul.

6:57

That distilled down and the core became

7:01

a couple of lawyers at CCR,

7:04

Michael Ratner and Steven Watt,

7:06

and me and Clive Stafford Smith.

7:08

So that was the, that was the beginning, the four of us.

7:10

Interviewer

How did that happen?

7:14

How did you coalesce in that direction?

7:15

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Well, you know, there's a natural tendency,

7:18

people who are busy, say look, I'm with you guys,

7:20

but I just can't, I can't do it right now.

7:22

And that's how it, you sort of slough off some people.

7:27

Not for want of interest and not for want of commitment,

7:33

but time and resources.

7:36

Interviewer

But, the other people

7:38

were on board with you?

7:41

Had they also thought about this issue?

7:42

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Well everybody had the same reaction.

7:43

Everybody who heard the announcement

7:46

had the same reaction, which is...

7:48

You know, I shouldn't say everybody.

7:51

Everybody that I reached out to.

7:52

But we later discovered when we were trying to

7:55

enlist other partners,

7:57

when it was time to file, for instance,

7:59

we filed in February of 2002,

8:02

when shortly after prisoners first arrived,

8:06

it was obvious that a lotta people did not share our view

8:09

at that moment.

8:12

Now in time, they all came around,

8:13

but that was a little early for people.

8:15

But in that group, everybody was of the same mind.

8:17

Now that didn't mean we knew how to frame the lawsuit.

8:21

We didn't know what the lawsuit would be.

8:23

We thought originally, I mean,

8:25

people I think sometimes lose sight of this,

8:27

we originally expected that this was gonna be a challenge to

8:29

the military commissions.

8:32

Because at that time you gotta remember,

8:34

it wasn't clear that this was gonna be

8:36

a system of just indefinite detention.

8:38

What had been announced was,

8:41

we're gonna try people by military commission.

8:43

And the best evidence is that the administration

8:45

actually believed that the people

8:48

that they bring in Guantanamo

8:49

would be folks you could bring in front of tribunals.

8:50

So I think the expectation all the way around was

8:55

this was gonna be a system of

8:57

prosecutions that lacked

9:03

the fundamental indicia of fairness,

9:04

what eventually became the litigation in Hamdan.

9:07

It didn't dawn on us

9:11

until January of 2002, when this group,

9:14

and I sort of took the lead by coming up with the research

9:20

and identifying Johnson versus Eisentrager

9:25

which was the key case that the government relied on

9:27

to argue that there was no jurisdiction

9:29

and making arguments about,

9:32

you know starting to do the research

9:34

on the nature of Guantanamo.

9:35

And we have actually had a meeting at CCR in January.

9:38

We'd all been working on it for about six weeks or so.

9:42

And we had a meeting,

9:45

and by that time, David Hicks was in custody.

9:47

David Hicks was at the base.

9:50

So the base it opened.

9:51

So the base opens January 11th of 2002,

9:52

that's when the first prisoners arrived.

9:55

And David was on the, you know

9:56

one of the very first flights there.

9:58

And we had a meeting at CCR in New York

10:01

on their offices on on Broadway.

10:05

And Clive was on the phone as I recall

10:08

and I was there and Michael and Steven Watt

10:12

and maybe some other people were calling in.

10:16

And also on the line was a lawyer from Adelaide, Wisconsin,

10:18

Wisconsin, Adelaide, Australia, whose name is Steve Kenny.

10:23

And Steve was counsel for David Hicks's father.

10:27

David Hicks' father,

10:35

we learned from the Australian government

10:36

that David was in custody.

10:39

And Steve Kenny was encouraging us to

10:42

challenge his detention.

10:47

He says, you gotta file something.

10:49

We don't know what his condition is.

10:51

He's not charging with anything.

10:52

And I remember in that call saying,

10:53

well the problem is Steve,

10:55

they haven't charged them in commissions yet.

10:57

There's no, there's no prosecution,

10:58

there's nothing to charge,

11:00

there's nothing to challenge yet.

11:01

And Steve, who's a very, very good lawyer,

11:03

and I, you know, I've always given credit

11:05

where credit is due said,

11:07

Joe you don't understand, they'll never charge him.

11:08

The whole point is they'll just hold him.

11:12

Why should they charge him,

11:15

if they can just hold him and accomplish the same thing?

11:16

This is not a case about challenging some

11:18

military commission prosecution that may happen or may not,

11:20

this is about indefinite detention.

11:24

And then a light goes on over my head, ah.

11:26

And that's the moment that

11:29

it became clear to me what Guantanamo was

11:32

and how it had to be challenged.

11:36

And from that moment, the challenge became

11:38

can you hold people simply beyond the law?

11:42

Can you just sort of wave a magic wand and say,

11:44

poof you have no right

11:46

except for those that we bestow upon you

11:48

as a matter of grace?

11:50

You don't have a right say,

11:52

wait a second, I'm the wrong guy.

11:53

You don't have a right to challenge anything

11:55

about the conditions in which you're being held.

11:57

You don't have a right to say, I didn't do anything wrong.

11:59

No, no, no, no, no, no,

12:01

and they can just hold you forever?

12:03

That's when Rasul was born

12:05

and all the subsequent litigation about habeas was sort of,

12:07

including Padilla, Hamdi,

12:10

sort of originated at that moment.

12:14

Interviewer

Did everyone go on board with you when

12:16

after Steve Kenny hung up the phone?

12:19

I guess you--

12:21

-

It was obvious.

12:23

I don't know, I can't speak for the other guys,

12:23

but I'm a member saying, oh well this, now it's clear.

12:25

And I went back to my office

12:29

and wrote the complaint that became Rasul,

12:30

the petition for writ of habeas corpus

12:34

that we filed in Rasul.

12:36

Interviewer

Did you feel lonely?

12:39

Did you feel like it was just a few of you against the world

12:41

in the sense that very few lawyers were involved in this

12:43

at that point?

12:47

Did that matter to you?

12:48

Did you care about that?

12:48

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No.

12:50

So it's very important to me that this not come across

12:53

as immodest or anything other than what it is.

12:57

But death penalty lawyers, civil rights lawyers,

13:03

which is what I was, criminal defense lawyers,

13:07

never have the cheering section on their side.

13:10

So you know, you have a group of people

13:15

who believe in what they're doing

13:18

and believe they're doing the right thing working with us,

13:19

working with me and that's what I've,

13:23

I didn't perceive it as strange at all.

13:26

Which is why when people say to me,

13:29

Joe it's so heroic that you were,

13:30

you know you were the first

13:31

and everybody else wouldn't get involved.

13:33

I had no conception of that

13:34

and I've always been resistant to that.

13:36

Interviewer

Why do you think death penalty lawyers

13:38

were the core of this group?

13:40

-

Well I'm not sure I would say,

13:42

I don't, it's very important to me,

13:44

you know, we won Rasul and people think

13:45

that there's something honorable about what we did.

13:47

And so therefore when,

13:51

you know success has many fathers and failures an orphan.

13:52

I'm the first to say, I've lost plenty a cases.

13:56

I lose all the damn time.

13:59

I've gotten my kicked over and over and over again.

14:00

I've made bad law in multiple jurisdictions

14:03

all over the country.

14:05

And so I'm very, also very quick to say,

14:07

I wanna resist the idea

14:10

that death penalty lawyers were the core.

14:11

Clive and I were very important in the beginning,

14:14

but so were Michael and Steven Watt.

14:15

I will say that within CCR

14:18

and CCR is a very progressive organization,

14:19

there was some resistance,

14:22

even within an organization like CCR

14:24

to get involved in these, getting involved in these cases.

14:26

Interviewer

Why is that?

14:28

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You know, put yourself back in that time.

14:32

These were...

14:33

First of all, you know,

14:36

the administration had demonized them.

14:37

You remember, these are the worst of the worst.

14:39

David Hicks is the guy they were talking about

14:41

when they said he would chew through the hydraulic lines

14:43

of a C30 to bring it down and crash the plane.

14:47

And that's what they were saying, that's the guy.

14:50

Now David Hicks is a nebbish.

14:52

And David Hicks is a perfectly nice guy.

14:55

You know, he's no more a hardened terrorist

14:57

than I'm gonna sprout wings and fly away.

15:00

But, you know, they were saying all

15:02

these bad things about people.

15:04

And however much folks

15:06

know at some intellectual level

15:08

that the government exaggerates

15:12

and they're given a hyperbole

15:13

and that they always create worst of worst,

15:15

there was a sense that I don't,

15:17

maybe that's who these guys really are.

15:19

And so there was a resistance to get involved at that stage.

15:21

-

Did you did,

15:25

another lawyer told us that he got 200 pieces of hate mail

15:26

and death threats over a weekend

15:31

when he filed a lawsuit early in that time period.

15:32

Did you get any hate mail and death threats?

15:36

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I've always been amazed at those stories.

15:39

I don't know where these guys practice.

15:40

You know, when we filed,

15:43

when we filed Rasul,

15:45

which was petition for writ of habeas corpus,

15:47

and it was the, it wasn't the first,

15:50

it was the first one filed on behalf of clients.

15:51

There was another case filed in in LA by Erwin Chemerinsky,

15:53

which was terrific.

15:59

It was wonderfully done,

16:00

but they were doing it as next friend to a group,

16:02

a religious group that had no clients

16:06

and so they were quickly dismissed for want of standing.

16:08

But the legal strategy was very, very sound.

16:10

So we were the first to file on behalf of real people,

16:13

and so ours was the one that went forward.

16:17

And when we filed Clive got a death threat, a phone call,

16:19

a threatening phone call at night at home.

16:23

I got nothing like that.

16:27

I was living in Minneapolis at the time

16:30

and people saw my name in the Times

16:32

and I got phone calls from old friends of mine,

16:33

people hadn't seen me from law school in many years

16:36

saying, you know, ah mazel tov, good for you.

16:39

I wouldn't do it, but you know, good on you.

16:41

I have over the years, when my name is associated

16:46

with this event or that, gotten angry emails,

16:49

never anything that's,

16:53

that I would characterize as a death threat.

16:55

And the ones actually that always

16:56

are the most offensive to me

16:58

are the ones that say that I'm a bad Jew,

16:59

that I'm a bad Jew for doing this.

17:03

Those are the ones that,

17:05

those are the ones that are most confusing to me.

17:06

Interviewer

How did you get Rasul as the client?

17:11

-

So we originally were contacted by David Hicks's father.

17:14

And at that time they were also,

17:19

you know Rasul and the other Brits had also arrived.

17:25

And what happened was they were allowed

17:28

to send a letter home to their families,

17:32

which would be delivered by the Red Cross.

17:34

You know, it was read and censored by the United States

17:36

and delivered by the Red Cross.

17:38

And it's not accidental that the first clients who,

17:39

or the first people who sort of spoke up,

17:42

came from very Westernized cultures.

17:44

Because when their families received this,

17:47

the very thing they did is go to lawyers.

17:48

And so the British lawyers who were contacted

17:51

by the families of Asif Iqbal and

17:54

Shafiq Rasul were human rights lawyers who knew Michael.

17:57

And either Michael reached out to them

18:06

or they reached out to Michael, I can't remember exactly.

18:08

And he said, we're thinking about challenging this,

18:12

do you want your clients to be involved?

18:16

So originally it was those three, Rasul, Iqbal, and Hicks.

18:18

And in April, Habib arrived at the base

18:23

and he was the other Australian.

18:28

And his family reached, knew about the lawsuit by this time

18:31

and they reached out to us and we added them,

18:34

him into the case.

18:36

So it was those four.

18:37

And then there were the Kuwaitis

18:39

in the other case that was going up at the same time

18:41

and they filed in May I think, and they joined us.

18:43

Interviewer

Did you think there's a chance

18:47

you might succeed?

18:48

-

Oh yeah.

-

Did you really?

18:51

-

Oh yeah.

Interviewer

Why?

18:52

-

The same reason that we did succeed.

18:54

Cause it was right.

18:57

Interviewer

Well, you didn't in the lower courts.

18:58

Were you surprised.

19:00

-

Oh you never do.

-

You thought you would not prevail

19:02

until you hit the Supreme Court?

19:04

Is that what you were thinking

19:05

all along this--

19:06

-

Of course.

Interviewer

Did you even think the Supreme Court

19:07

would take the case?

19:08

-

Absolutely.

Interviewer

Why, why were you so confident

19:11

about that?

19:12

-

Well confident's

not quite the right word,

19:13

but I didn't have any...

19:14

What the administration was doing

19:18

was a really exceptional thing.

19:20

The idea that you will hold a prisoner

19:24

utterly beyond legal protection.

19:27

Now it is one thing to say

19:30

the legal protection is one that cannot be enforced

19:32

in a court, but we will nonetheless

19:34

extend to them legal protections

19:36

based on an extant framework

19:38

that we will hold ourselves to.

19:41

That's the Geneva Conventions.

19:43

Geneva Conventions aren't,

19:44

well query whether they are, it's a debatable term,

19:46

whether they are enforceable in court.

19:48

But if there had been a declaration,

19:50

we will comply with the conventions,

19:52

well maybe we wouldn't have gotten cert, right?

19:54

And I remember having this conversation

19:57

with Michael Chertoff, who was,

19:58

you know Secretary of Homeland Security at the time,

20:00

saying you know, these cases would probably go away,

20:02

if you guys would just

20:05

create a construct that you agree to be bound by.

20:07

But they steadfastly refused.

20:09

Well, that's a pretty remarkable statement to be made.

20:12

You know, time will tell,

20:15

we don't know because it's not,

20:17

hasn't been released yet,

20:18

from the deliberations of the court

20:21

whether it was a tough question for them.

20:26

But I didn't think that they would let

20:28

something like Guantanamo pass.

20:30

And once they took it, they don't take it to affirm it.

20:34

There's no reason for them to take it to affirm it.

20:37

They took it to reverse it,

20:39

to reverse the DC circuit.

20:41

Interviewer

Were other people who you worked with

20:43

as confident or,

20:44

if you don't wanna use the word confident,

20:46

as sure as you that

20:48

this case was going to go to the Supreme Court

20:50

and they were gonna reverse it.

20:52

Did people feel--

20:55

-

I don't know.

I never really, I've never talked to Michael about this.

20:56

Interviewer

Clive.

21:01

Clive was...

21:03

-

I, no, I don't, I don't know.

21:05

-

So when the decision, Rasul decision was

21:08

released by the Supreme Court,

21:11

did you feel like it was over, that was the end of the game?

21:12

-

Yeah.

21:16

So we met a real,

21:19

I don't want to attribute it to anybody else,

21:21

made a real miscalculation at that point.

21:23

What we knew at that point was that

21:27

there was a thing that Guantanamo had become,

21:31

and its purpose in life was as a

21:36

an isolated interrogation chamber,

21:43

a massive interrogation chamber

21:46

free from any outside interference.

21:48

And I remember telling, and it was after Rasul,

21:52

that's when all the other lawyers came in,

21:55

because now we were entitled to file habeas petitions

21:56

on behalf of other people.

21:58

So everybody gets a shot, so we need lawyers.

22:00

And I remember telling those lawyers,

22:03

the most important thing we can do

22:06

to alter the character of Guantanamo

22:09

is for you to go to the base.

22:11

Because what I used to say is if we open it up,

22:13

they'll shut it down.

22:18

Because it can't exist in the form that it had become.

22:19

If you could, what I would say to people is,

22:25

look when you can bring your client a personal pan pizza,

22:27

it is no longer a prison beyond the law.

22:32

You know I don't care what else happens,

22:35

you can bring your client fresh fruit

22:36

and a cup a coffee and sit and play cards with him,

22:38

its purpose as an interrogation chamber has ended.

22:41

And so I thought,

22:46

well if there's no purpose

22:47

in an interrogation chamber,

22:48

and they didn't let a lot of people go.

22:49

What didn't realize is what would happen is

22:51

it would transform from an interrogation chamber

22:54

just to a long-term detention center.

22:56

And that's what it now is.

22:58

And as it became more politicized

23:00

it became more difficult to,

23:02

then you're trying to move symbols rather than people

23:04

and then it became much more entrenched.

23:07

That's where we are now.

23:09

And I didn't foresee that.

23:11

Interviewer

So what do you foresee

23:13

the day of the decision?

23:15

-

I remember Michael

23:18

and I thought that it'd be closed in six months.

23:19

Boy were we wrong here.

23:22

Here we are 10 years later.

23:24

Interviewer

I wanna go back to kind of

23:26

what you described as interrogation center.

23:27

What rumors did you hear,

23:29

what did you hear during those two years

23:31

between the time you filed

23:34

and the decision that caused you to think like that?

23:35

What did you know about Guantanamo?

23:38

No one had been there.

23:40

-

Well, that's interesting.

23:42

I don't remember when I knew different things

23:44

but we started to get word about,

23:49

we hadn't yet heard of

23:55

the enhanced interrogation techniques,

23:57

but you started to get word about interrogation abuses.

23:59

Like there were reports of interrogation abuses at Bagram.

24:04

There were some...

24:10

There was like an article by Mark Bowden in the Atlantic

24:15

on the KUBARK manual, the CIA manual.

24:20

This is really how you use, this is what really goes on.

24:24

And that looked kind of eerily similar

24:28

with what we were hearing, what's happening at places.

24:30

There were rumors that the CIA was holding people.

24:34

The mere fact that they wouldn't

24:38

let anybody down there gave us pause.

24:40

You know, there were those pictures

24:44

when Guantanamo first opened,

24:46

when they brought people there of the guys,

24:49

you know, in blackout goggles and hoods,

24:51

which is all about sensory deprivation.

24:53

So you could sort of piece together that this was

24:55

and of course we knew that their idea was that

24:57

9/11 is an intelligence failure.

25:01

There's this thing called the,

25:03

you know the mosaic theory

25:04

where everything is these little bitty tiles

25:06

that may seem innocuous and innocent,

25:09

but you've gotta put them on this massive, massive wall

25:10

and move 'em around

25:13

and, you know a tile might be insignificant

25:15

until it's placed up there

25:17

and then suddenly a pattern emerges.

25:18

I mean, that's their theory.

25:19

So therefore you gotta go back

25:21

and ask this person about this tile

25:22

over and over and over again,

25:24

because it doesn't acquire meaning

25:26

until it's clustered around others.

25:28

And so therefore you gotta be able

25:30

to interrogate 'em endlessly

25:32

and you gotta be able to use whatever conditions you need

25:34

to in order to have him tell you that.

25:36

You can't leave any information on the ground

25:39

in other words.

25:41

There's these talk of, you know the 1% doctrine,

25:42

things like that.

25:45

I don't know when we learned that,

25:46

but this was all coming out.

25:47

And then of course we had the great, I mean,

25:50

you gotta remember the...

25:52

We argued April 20th, I wanna say.

25:55

Well, what happened April 28th,

25:59

which was the day that Hamdi and Padilla argued,

26:02

two different times?

26:07

Do you know what happened April 28th?

26:09

You probably do.

26:10

Interviewer

Is that Abu Ghraib.

26:12

-

That's when the first announcement is about Abu Ghraib.

26:13

So every single day on the front page of the New York Times

26:15

and the front page of the LA Times and the Washington Post

26:17

you had a new amicus brief for us on,

26:20

you know, oh this is why

26:22

you don't have a prison beyond the law.

26:23

Oh look, they're stacking them up like cords of wood,

26:24

oh naked, with dog chains.

26:26

-

Did you get--

26:28

-

Can we break

for just a sec?

26:31

-

Sure.

Did you or any of the other lawyers get to speak to Rasul

26:32

when he was released,

26:36

since he's released before the decision?

26:37

And did that, did he tell you

26:40

of what was going on Guantanamo?

26:42

-

Right, he was released I think in, it's interesting.

26:44

He was released,

26:47

that's another sort of the odd thing about the case,

26:48

he was released, I wanna say in March.

26:50

So we filed, I think the reply brief,

26:53

and he was already gone.

26:56

So it's a case,

26:57

a famous case named after a guy about his detention,

26:58

and he's no longer in detention

27:01

at the time the case comes down.

27:02

It doesn't even figure in the decision.

27:03

I didn't speak with Rasul.

27:08

I know Michael and Steven Watt did.

27:09

And they started to, his lawyer there

27:13

started to debrief him about the conditions,

27:17

but we, you know, the argument was already over.

27:20

We didn't have much, we couldn't make that part of the case.

27:22

The record's already sealed in that,

27:25

the record's already complete.

27:27

I remember very, very soon after

27:28

you may have heard about this,

27:31

the decision comes down end of June.

27:33

In July there was a meeting at Columbia

27:35

where we brought in a bunch of the new lawyers.

27:41

So a lot of those sort of the first wave

27:45

or the second wave of habeas lawyers started then.

27:47

So there's, you know, a lotta the guys who have been,

27:51

now been around a long time started then

27:54

and was at that meeting.

27:58

And at that meeting was Gareth Peirce,

27:58

who was Rasul's lawyer.

28:01

And she told us that she was in the business

28:03

or she was busy trying to debrief Rasul and Iqbal

28:06

about their conditions, in a very systematic way,

28:11

which became this sort of report on their conditions.

28:14

And we had an early draft, I wanna say,

28:18

which we couldn't cite yet,

28:20

'cause it hadn't been, you know, it wasn't done.

28:22

So we were just learning about it then.

28:26

Interviewer

So as soon as the decision was released

28:30

did you make plans to go into Guantanamo yourself?

28:32

Did you think you--

28:35

-

Right.

28:37

That's you know, I remember we had a,

28:38

we had a hearing

28:41

in front of I wanna say Judge Kollar-Kotelly

28:43

who had the case,

28:46

immediately after the decision

28:49

saying well what does it mean?

28:50

I know the solicitor general was on the line

28:51

or the acting SG, I think.

28:54

And he said, well judge, you know, the government,

28:57

U.S. government is still studying it

28:59

and we don't really know and blah, blah, blah.

29:01

And I said, judge they can study it all they want,

29:04

but these guys have been in custody for, you know

29:06

over two years now, 2 1/2 years and whatever else it means,

29:09

it means we have a right to prosecute this habeas action.

29:13

And so therefore we have a right to get out our clients.

29:16

We have a right to access.

29:19

And I told all the lawyers that the mantra has to be,

29:21

we have a right to access and answers.

29:24

They gotta answer the petition

29:26

and we gotta be able to get to our clients.

29:28

So we were agitating to get to the base from the beginning.

29:30

It was actually a question about what was gonna happen.

29:36

The administration really had to think about,

29:38

well just what does Rasul mean

29:40

and do they really have a right to go to the base?

29:42

Does Rasul imply that?

29:45

And they actually thought about resisting that.

29:46

They couldn't read the decision and say,

29:49

well we can't fight that.

29:51

They eventually did come to that.

29:52

What they first said was,

29:53

well for these lawyers only,

29:54

for the lawyers who were involved in Rasul,

29:57

we don't know about any other lawyers,

29:59

we're as a matter of grace, letting them go to the base.

30:01

And that quickly broke down and everybody was allowed to go.

30:05

But they said, you gotta get a security clearance first.

30:07

And the security clearance process,

30:09

even though we had started the security clearance,

30:11

I had submitted my security application years earlier.

30:13

They hadn't acted on it.

30:17

In fact, they lost it, so I had to redo it.

30:19

Why?

30:22

Because we knew that in order to get there,

30:23

we wanted to be able to say, I have a security clearance.

30:25

You have no reason not to let me go to the base.

30:28

Let me go talk to my client.

30:30

You gotta remember, while this case is going on,

30:31

the guys don't even know it, right?

30:33

I mean, we could file whatever we want.

30:34

We could send them copies.

30:36

We could mail, they'll just throw it away.

30:37

I mean, they're not gonna get it,

30:38

they're not gonna get it delivered to our clients, so.

30:40

When I, the first time I went to the base was November.

30:43

I tried to go in August,

30:47

you probably have heard this story.

30:48

I don't know who all you've spoken with,

30:50

but the first lawyer to go,

30:51

first habeas lawyer to go was Gita Gutierrez.

30:52

Interviewer

How did that happen?

30:55

-

So it was August,

30:56

we all finally had our security clearance

30:57

and we were, (laughs) Gita would probably know the,

30:59

be able to reconstruct it better.

31:03

And the three people who were gonna go first,

31:04

where me, Gita, and Brent Mickum.

31:06

And at the last minute, they came up with this new rule.

31:09

They said, you know, if you don't get authority

31:15

to represent your guy,

31:18

to transform your litigation from

31:19

on behalf of a next friend, mother, sister, father,

31:22

to direct representation,

31:25

that is your guy authorizes you to go forward,

31:27

we're not letting you back.

31:29

And we said, well we have no idea

31:31

what sorta condition he's in.

31:32

We never talked to him,

31:33

I mean, you know, we don't know how long

31:34

it's gonna take to establish a relate.

31:36

They said, ah.

31:37

So I had a concern that Habib who I was gonna go see,

31:38

you know, doesn't know me from a sack of oats.

31:43

You know this Jewish lawyer who comes in here,

31:46

says, hi I'm your lawyer

31:49

and gives him a piece of paper to sign

31:51

and says here let me do for you.

31:52

And he says thanks very much,

31:54

but you guys have done enough for me.

31:55

So I had no idea.

31:57

So we made a decision at the last minute,

31:59

a very painful decision that we

32:01

we're gonna wait.

32:08

And it was then that we brought Maha Habib,

32:09

Mamdouh's wife, as well as their lawyer in Sydney

32:14

to the United States to try to learn more about Mamdouh,

32:18

so that if we only had one visit,

32:23

we could make the most of it.

32:25

And so, and then I had, that was in July.

32:28

We brought them over in August, I think, or maybe late July.

32:30

And then unfortunately I had a trial in another case,

32:33

I had a trial on a murder case

32:36

from earlier in my life

32:38

that took place in late September, October.

32:40

So as it turns out, I couldn't go until November.

32:43

Interviewer

Gita didn't have that same worry.

32:47

-

Gita was going to see Moazzam Begg.

32:48

Moazzam, very Westernized, had lived in London.

32:51

Spoke English perfectly.

32:55

-

Lawyer.

32:57

-

A lawyer

and didn't have that same concern.

32:59

And she was right.

33:01

And in fact it turns out,

33:02

I didn't have that problem.

33:04

I could have gone in July.

33:05

It would have been fine.

33:06

Whatever I was,

33:07

what happening with Mamdouh was gonna happen then or,

33:09

but it would have been fine.

33:12

But you couldn't predict that.

33:13

So Brent and I both put ours off.

33:15

I can't remember who he was gonna go see,

33:18

Jamil El Banna as I recall.

33:21

And so Gita went first and then in between Gita and me

33:24

I think Baher Azmy might've gone down.

33:31

There might a been a couple others.

33:33

Interviewer

So what was your impressions?

33:35

What are you expecting you went down there?

33:36

What were your impressions the first time?

33:38

-

You know, I've been to a lot of prisons,

33:41

I mean, as a death penalty lawyer

33:43

and as a criminal defense lawyer.

33:44

I've been to a lotta jails and a lotta prisons.

33:48

I've been to death row in half a dozen states.

33:51

I've been to the federal death row.

33:54

I've been at very, very high security settings.

33:57

And I have described this before,

34:03

and I have to say Guantanamo is now very different

34:07

than it was then.

34:09

This was late 2004.

34:10

It was just coming off the worst period at Guantanamo.

34:13

The worst period at Guantanamo was from around

34:16

late 2002 to you know mid-2004.

34:20

That's when it was really, really the worst,

34:24

the worst interrogations, the worst conditions,

34:26

the worst conditions of confinement, treatment.

34:29

And it was different,

34:34

you know, some people had it worse

34:35

for longer periods and so on.

34:36

And I have described it

34:41

as the most disturbing place I've ever been to.

34:43

And the only, now you weren't allowed to see much,

34:48

and the only client I saw

34:50

and part of what made it so odd is the way they

34:51

sheltered you from everyone else.

34:56

You know, there's no sense that this is a place

34:58

where anyone else's held.

35:00

As far as I could tell, it's this massive structure,

35:03

multiple structures that holds one guy, which is my client.

35:09

'Cause they bring them into this special room,

35:13

concrete and plywood and air conditioning running loud,

35:17

and a bunk and a narrow steel cage

35:23

where he sleeps while you're,

35:28

while the length of this visit goes on.

35:31

And when you leave, he's unshackled from the floor

35:33

in the middle of the room

35:36

and put into that room.

35:37

And they were still so freaked out

35:39

about who these guys were.

35:40

And it was then that I really understood why

35:42

the most precious commodity in any prison is hope.

35:48

It's not, you know, it's not an extra half hour of sunlight.

35:53

It's not an extra half hour of exercise.

35:56

It's not communal living spaces.

35:58

It's hope.

36:00

If these guys, if you extinguish a prisoner's hope,

36:01

hope for a better future,

36:06

hope that this fate will end,

36:07

hope that he'll be reunited with his family,

36:09

hope that he will see his children again,

36:11

that maybe he'll even get a chance to hug his little girl,

36:14

if you extinguish that,

36:19

the little flame behind his eyes goes out

36:20

and they have this blank, dead, deadened

36:23

not just a blank affect,

36:31

but just this completely empty shell of a person,

36:34

which we created, right?

36:40

I mean, you go from a person who isn't that way

36:43

to the person who is, by virtue of how he is treated here.

36:45

And that's what had happened to Mamdouh.

36:49

Interviewer

You didn't expect that?

36:54

-

No, no.

36:55

-

What did you--

-

I didn't know what to expect.

36:57

I mean I hadn't, what I was expecting more,

37:00

I had no concept for, I wasn't focused on...

37:02

I was focused on things like,

37:10

you know, his physical health, how will he be?

37:12

You know, will he have lost weight?

37:15

Will he walk with a limp?

37:16

Will he have scars?

37:19

I really what I should've been,

37:23

I should've been more focused in on his emotional health.

37:26

I was focused on things like, well will he accept me?

37:30

I had this elaborate plan to try to,

37:33

you know gradually tell him more and more things

37:35

so that he would come to trust me.

37:37

I don't know if read out my descriptions about that.

37:39

The things that Maha had told me to get,

37:41

'cause I figured he'd think I was just

37:45

another interrogator who was playing games.

37:47

We knew that interrogators were doing that.

37:48

There were interrogators who were

37:50

pretending to be the guys' lawyers.

37:52

Hi, I'm you lawyer, not tell me what you really did.

37:56

Oh good, I'm so glad there's a lawyer here,

37:58

let me tell you about how I bombed these places.

38:00

Of course it was silly.

38:03

None of that, there was...

38:04

They didn't tell us any more than,

38:06

there was no, there, there.

38:08

I wasn't prepared for how

38:13

deadened he would be.

38:19

And it was very, like I said, I've been in a lot of prisons

38:21

and lotta guys who've spent a lot of time talking,

38:26

men and women,

38:30

and I've never seen this kind of just deadness.

38:32

Interviewer

Did you feel that at that time

38:38

that therefore Guantanamo was a unique institution

38:41

that created that deadness?

38:45

-

Oh yeah, not just Guantanamo.

38:47

I mean,

38:48

you can create Guantanamo anywhere, right?

38:52

That's why I'm not as hung up as other people are

38:55

about closing it, right?

38:57

What matters is not where you hold them, it's how you hold.

38:59

And if you create the right conditions,

39:01

you can make anything into a horror chamber.

39:03

And I had no doubt, no doubt

39:08

that other places were vastly worse than Guantanamo.

39:12

I know that to be true.

39:14

We know what happened at the black sites.

39:16

So, you can create places that will do real,

39:18

that will really scar folks.

39:22

Interviewer

Did that change the way you

39:25

interfaced with Mamdouh when you saw

39:28

that you looking at a person who was deadened?

39:31

Did that change everything that you had thought about

39:33

when you first went down there?

39:36

-

Well, you know, I was very fortunate

39:43

because by virtue of what happened,

39:50

I don't know whether you want me to get into the whole story

39:54

of how Mamdouh got out,

39:56

how we eventually got Mamdouh released.

39:57

Interviewer

I do at some point.

39:59

If you wanna say it now, that'd be fine.

40:00

But I'd like to, I do wanna--

40:02

-

Yeah.

40:03

-

Hear that story, yes.

-

Well, in answer to your immediate question, it did...

40:06

What I discovered that trip

40:20

and I... (sighs)

40:25

And I used to, I remember I used to tell the lawyers this,

40:30

you know, the other lawyers

40:33

who were just starting to go down

40:33

is, you know, here we are in law school

40:35

and so it's fitting that I use this expression,

40:38

here is a place where you learn to think like a lawyer.

40:41

I would say to them, don't think like a lawyer,

40:44

just think like a human being.

40:46

Pretend that once again you are a human being

40:48

and not a lawyer.

40:51

And you're talking to a guy who

40:54

has gone through a great deal.

40:59

The whole purpose of the administration's detention program

41:03

was to disorient them so

41:09

and to create such a sense of despair

41:11

and desperation that they would give up

41:13

any capacity to resist.

41:17

That's the whole logic of it.

41:18

And you know, it's not important anymore to get involved

41:19

about whether that's a good idea or a bad idea.

41:22

It's been critiqued, it's clearly a mistake.

41:24

Whether it gets good information or not,

41:27

it's certainly morally bankrupt.

41:28

But these are guys who having been wrung dry,

41:33

they don't do anything to sort of restore them

41:37

from that condition they created,

41:39

so they're still in that condition.

41:40

Well, how do you deal with a person like that?

41:44

Well, the answer you don't deal with them.

41:46

You don't treat them like a client.

41:48

You know, you don't come down with your notebook

41:50

and say, okay, you know, Mr.Binatosh, I'm gonna,

41:52

here's what I'm going to represent you in.

41:55

And this is how, this is what the law is.

41:57

Stop it, just stop it, you know.

42:01

So I would tell guys, just don't take out your notebook,

42:03

don't talk to him about the case, don't you know,

42:06

follow their lead.

42:08

If they wanna know what you're gonna do,

42:10

tell them what you're gonna do.

42:11

If they wanna talk to you about the food,

42:12

talk to 'em about the food.

42:14

Just be a sounding board,

42:15

be an empathic or empathetic listener.

42:19

Engage them with what they are prepared to engage you with.

42:27

And gradually that may change

42:31

and you don't know how long it's gonna take.

42:34

So with Mamdouh, you know I went down there.

42:35

I'm Joe Margulies.

42:43

I'm a lawyer and here's the U.S. Supreme Court

42:44

and here's the Supreme Court decision.

42:46

Hi, Mr. Habib, I'm....

42:47

Well that was stupid.

42:48

And he just looked at me with this blank, dead stare.

42:50

Yes, thank you very much, yes.

42:54

And I went through this whole spiel about, you know,

42:55

Mamdouh, I've represented you for years.

42:57

You don't know, but the little did you know,

42:59

you just won a case

43:02

in the United States Supreme Court, congratulations.

43:03

And he, nothing, nothing at all.

43:05

I had my business card.

43:13

I had the Supreme Court decision that had his name on it.

43:14

I showed him on the plea,

43:16

I brought a set up all the pleadings.

43:17

Here's all the pleadings we filed on your behalf.

43:19

Look at all the things we said.

43:20

Look all this great stuff we've done,

43:21

blah, blah, blah.

43:22

Okay, great.

43:23

Absolutely no effect.

43:24

No even I could have just sort of said,

43:26

oh, you know what here's a copy of the Magna Carta

43:27

and here's the original King James Bible

43:29

and you know, nothing, it did nothing for him.

43:30

And so I realized, okay well this is not,

43:37

you know I probably could have stuck a piece of paper

43:41

under his nose and said, if you'll just sign right here

43:43

it'll allow me to continue to represent you

43:46

and I'll be on my way and that (claps hands)

43:47

Yeah and he just signed anything, you know.

43:49

But that's not what you want, right?

43:53

Then you not really have a client,

43:55

you just, you just have a piece of paper.

43:56

So I put all this stuff away and I put it back in my bag.

43:59

And I...

44:03

I said to him, let me start over again.

44:07

Mamdouh this isn't what we wanna have happen here.

44:12

And then I told him,

44:14

said look, I know you don't know me

44:16

and I anticipated that you wouldn't know me.

44:19

And you don't have any reason to trust me

44:21

and I'm not asking you to trust me,

44:22

I got to earn your, I got to win.

44:24

But I do want you to know

44:28

that I'm legit.

44:30

I'm not making this up, this is not...

44:32

And there's only one way I could think of

44:35

to try to get past this point in the conversation,

44:37

because I thought it might happen.

44:43

And I wanna share with you some things to

44:46

demonstrate to you what we have done.

44:55

Last month or July, I can't remember,

44:58

this was November, so I might've said, you know,

45:01

a few months ago

45:03

your wife and her lawyer

45:06

flew from Sydney.

45:11

We flew them to Chicago and put them up in a hotel.

45:13

And we met with Maha to talk about you

45:17

and talk about your life

45:22

and to help us understand who you are

45:24

and how to approach this meeting.

45:28

In fact, I coulda come down here earlier,

45:31

but I was so worried that you wouldn't,

45:33

that I wanted to do this first.

45:35

And I told Maha that he might think I'm an interrogator.

45:37

He might think that I'm with the U.S. government.

45:41

And there's no reason to think that he'll

45:44

you know, there's no...

45:46

So Maha here's what I need you to do.

45:47

When you go back to your hotel room tonight

45:51

before we meet again tomorrow morning,

45:52

I want you to think of three things

45:54

that Mamdouh knows that you know,

45:57

but no one else knows.

46:04

Things that are so obscure,

46:05

so personal to you, trivial, insignificant to everybody else

46:07

that no interrogator would know them

46:14

unless they got them,

46:17

because no interrogator would get them

46:18

by extracting them from you,

46:20

because they have no intelligence value.

46:22

They're just personal things that he would know

46:23

that you talked to me freely about these personal things.

46:26

And she said, okay, let me,

46:30

you know Maha's a savvy smart woman.

46:31

She came back the next day.

46:33

and she said, okay Joe, I've thought of these three things.

46:35

And the meetings with her were very, you know

46:37

'cause here it is, she doesn't know me,

46:38

and we're flying her from Sydney, Australia

46:40

and she gradually opened up to us as well, warmed up to us.

46:42

Had to leave her children behind, so.

46:47

Okay, the three things were,

46:49

let me see if I can remember them all now.

46:53

Here's where Mamdouh and I went on our first date,

46:56

years ago.

47:01

Here's the first gift he ever gave to me

47:04

when we were dating.

47:08

And when our oldest son was sick and he was in the hospital

47:09

and we spent all night in the hospital at his bedside

47:18

where were our other kids?

47:22

Where did they stay?

47:25

Well I thought those were great examples.

47:26

And I know answers to those questions.

47:28

I've never repeated them out loud except to Mamdouh.

47:30

I've never, 'cause it's,

47:33

well for the reasons that I described, right?

47:35

It's nobody's business.

47:38

But I told him those three things.

47:40

I said, I want to tell you, Maha told us these things.

47:42

And I told him the answers to those three questions,

47:45

those questions and those answers.

47:48

And up until that time,

47:50

he had this completely dead, indifferent, detached presence.

47:51

Not even an affect,

48:00

'cause affect suggests that there's,

48:01

you know what you're describing is a,

48:03

and it wasn't even there.

48:05

It's like you're talking to a cat, right,

48:06

who's just looking at you occasionally blinking.

48:08

It's not a, okay.

48:11

And when I told them these things

48:14

and of course you remember he had hands,

48:16

his feet are shackled.

48:18

This is a guy who's feet are shackled,

48:19

he can't cross his leg like this,

48:21

you know 'cause his feet are shackled there.

48:23

He's, at my request,

48:24

the guards had taken the shackles off of his wrists,

48:26

but that's the first time

48:28

the shackles had been off his wrists

48:30

outside of the little cage that he's in, in years.

48:30

And he looked at me for a long time

48:35

and then he dropped his head and started to cry.

48:37

He started to sob

48:40

and the tears were just falling down.

48:42

And then he looked back up, tears in his eyes,

48:44

and he said to me, Joe, we have so much work to do.

48:47

And that's when I knew, okay, now I have a client.

48:52

So now you can, so at that point you can say,

48:55

let's get to work.

48:58

And you can go anywhere you want.

49:00

Tell me what you want to talk to me about.

49:03

And you can talk to you about Guantanamo.

49:05

You can talk to you about...

49:06

As it happened, I knew I had something that was important

49:08

for us to talk about

49:11

and it turns out it's how he got home.

49:12

We had heard,

49:15

while I was there,

49:17

and things like this used to happen,

49:19

they don't happen as much anymore.

49:21

We were allowed to check our email at a little

49:23

sort of base library.

49:28

It's a library, it's about as big as this room,

49:29

so not much.

49:31

And there were a few computer screens.

49:32

And so you could go there during lunch hour

49:34

and check your email.

49:36

And somebody anonymously,

49:37

I have no idea who, still don't,

49:40

had sent me an email saying that the Australia,

49:42

or the Egyptian government had requested the return

49:45

from Guantanamo of the Egyptian citizens,

49:52

one of whom was Habib.

49:56

They identified, they named them all.

49:57

And Habib was born in Egypt,

50:00

and so he still had a Egyptian citizenship,

50:01

but he had been in Australia forever.

50:03

Well, I knew that Habib had been rendered to Egypt

50:06

and tortured in Egypt when he was first picked up

50:12

in October of 2001.

50:14

The reason he didn't get the Guantanamo until April

50:15

is that unlike the other guys, he was sent to Egypt first,

50:17

where they tortured the bejesus out of him

50:21

and now Egypt was asking for him back.

50:23

So I spent most of the time that I was there that day,

50:25

that day and the next day, that whole trip,

50:28

getting a very detailed account

50:31

about his rendition from U.S. custody to Egypt

50:33

and what happened to him in Egyptian custody.

50:38

Interviewer

From him, you got this?

50:40

-

Right, exceedingly detailed,

50:41

including the evidence,

50:44

including the description of the U.S. contractors

50:46

who rendered him.

50:49

It was one of the most detailed accounts at the time

50:50

of just what the rendition was

50:52

and what it involved.

50:54

And

50:57

when I got back,

51:02

this is like Christmas or Thanksgiving Day

51:03

or the day before Thanksgiving,

51:05

I went to the secure facility

51:06

and I wrote it all up just from memory,

51:08

'cause I didn't have my notes.

51:10

You can take notes, but the notes can't come back with you.

51:11

They have to go back in a secure pouch.

51:13

So I just went in and I wanted to do it right away

51:16

and I wrote up this affidavit on saying

51:17

here's what I was just told

51:21

in great, great detail.

51:22

And then I filed a memorandum

51:24

or a motion saying to block his transfer

51:26

and filed that with the court,

51:29

saying you can't send him back,

51:33

he's been tortured before, they're gonna torture him again.

51:34

And the way it works at,

51:37

in the Guantanamo litigation is once you file something,

51:42

it remains sealed until the court security office

51:44

says okay you can file this publicly

51:47

or you can file it publicly,

51:50

but here this much as redacted, okay.

51:51

So usually that didn't,

51:55

at that time it didn't take long.

51:56

They'd usually go through these reviews pretty quickly

51:57

48 hours, 72 hours.

51:59

This one was taking weeks

52:01

and they weren't getting back to me

52:03

and weren't getting back to me

52:04

and that's no good,

52:05

'cause I wanted this stuff to be part of the public record.

52:06

So finally, I sent a note to the court security office

52:09

saying, look if you don't get this back to me publicly

52:12

by close of business tomorrow,

52:16

or rather if you don't make a decision

52:18

one way or the other,

52:20

you know, yes, you can file it publicly,

52:21

no you gotta litigate,

52:23

if you don't, if you continue to do nothing,

52:24

I'm gonna file a motion

52:26

and you have 'til close a business tomorrow.

52:27

At one o'clock the next afternoon,

52:29

they sent me an email saying it's all been cleared

52:31

for public filing.

52:33

You can clear it, you can file it all

52:34

and they didn't redact anything.

52:36

And I didn't wait for them to change their mind,

52:38

I filed it instantly, publicly

52:40

and then immediately afterwards,

52:44

and I'm completely unapologetic about this,

52:46

press send and sent the material

52:49

to Dana Priest at the Washington Post.

52:51

All of it,

52:54

the description, everything that I had filed,

52:56

which was now allowed to be, I was allowed to do that.

52:58

That night she sends me a note back

53:01

or maybe calls me and leaves a voicemail

53:04

saying, Joe we're gonna run a story on this.

53:07

It's gonna run in tomorrow's Post.

53:11

Well, as it happened, the next day

53:13

is the day that Alberto Gonzales was testifying

53:17

at the Senate Judiciary Committee

53:22

about his confirmation from going from

53:24

White House counsel to Attorney General.

53:26

Ashcroft had left and Gonzales was named to be acting AG

53:28

and this was his confirmation hearing.

53:33

The day of his confirmation hearing

53:35

there is a front page article in the Washington Post

53:36

about Mamdouh Habib's rendition describing his torture

53:39

and describing the U.S. involvement in it.

53:42

And Dick Durbin bless his heart,

53:44

Senator from Illinois, holds up the Washington Post

53:46

and shows it to Gonzales, who is blind sided, right,

53:49

'cause he doesn't know this is coming.

53:52

It just appears, so he's not prepped on it.

53:53

Says did you see this?

53:55

If this is true, isn't this illegal?

53:57

And Gonzales, says yes if that's true, it's illegal.

53:59

If that's true, a crime was committed.

54:02

That's a Tuesday.

54:05

Thursday morning, Wednesday night, something like that,

54:08

I got a phone call from the Australian embassy

54:10

saying Mamdouh is gonna be released.

54:15

Don't tell anybody yet,

54:19

'cause the Defense Department asked us

54:20

not to make it public.

54:21

But when he's released, would you be willing to fly,

54:22

we're gonna charter a plane

54:26

and fly him home from Australia or to Australia,

54:27

would you be willing to accompany him on the flight?

54:30

And I said yes, and that was early January of 2005.

54:34

He flew home January 30th or 31st.

54:37

And I am the only lawyer who has been allowed

54:41

to accompany a client home from the base.

54:44

And that's how he got home.

54:48

-

Why did they,

why did Australia want you to accompany him?

54:50

-

Probably because there were,

54:52

I suspect there were allegations

54:53

that the Australian government

54:57

had been aware of his rendition,

54:58

knew that he was being rendered,

55:01

knew that he'd been tortured before the rendition,

55:03

and knew that he was gonna be tortured

55:05

and may have even been present in Egypt

55:06

while he was being tortured and hadn't come to his defense.

55:08

So the Australian government was under the gun,

55:12

because they of course saw this document

55:16

that I filed as well.

55:18

And in order to demonstrate, no, no, no, no,

55:20

we're very solicitous of this guy,

55:23

we're even letting his lawyer there.

55:26

The real question is why the U.S. government allowed me to,

55:28

because I had to get to the base.

55:31

We met at Guantanamo.

55:34

I (clears throat) the way it worked was,

55:36

I met the Australian contingent at the airport in Miami

55:39

at a special private charter section

55:43

of the airport in Miami, this sleek, fancy Gulfstream jet.

55:46

We hopped from Miami to Guantanamo and we pick him up there.

55:49

We pick up Habib there.

55:55

But I didn't have, I didn't have,

55:56

I mean, I was on the military base.

55:58

Ordinarily you can't get to the base

56:01

unless you have clearance.

56:02

You have to be allowed to go.

56:03

Not just your regular security clearance,

56:04

but you have to be permitted to land at a military.

56:07

I can't just walk into any military base.

56:09

You have to be authorized to be there.

56:11

So they wouldn't let me get off the plane.

56:13

I had to stay on the plane.

56:15

And I remember when they brought Mamdouh in a truck

56:17

up to the plane and the Australian government

56:22

let me sort of go right to the edge of the open,

56:25

the open a stairway down to the tarmac.

56:28

And they walked, they took Mamdouh out of this truck

56:33

and they took off his shackles and everything

56:35

and they hand him his, you know,

56:37

some personals that had been traveling around with him,

56:41

you know, like a wallet and things like that.

56:43

And he walks over from the truck to the plane

56:46

and he told me that it wasn't until he saw me

56:51

in the plane

56:54

that he realized he was going home to Australia.

56:56

He didn't know for sure where he was going.

56:59

And in fact, a guard prior to that

57:01

had told him he was being sent to Egypt.

57:03

So he saw me and we, that was the flight home.

57:08

Interviewer

Can you describe the flight home?

57:14

Were there Americans?

57:16

-

You know, there's a,

no, there were no Americans on the plane.

57:18

Australian security contingent, you know,

57:23

attorney general from the attorney general,

57:25

their attorney general's office.

57:28

It was very, very casual.

57:30

There was a difference of opinion.

57:31

Mamdouh describes it differently.

57:34

My memory is that it was very boring and everybody slept.

57:35

Mamdouh says, it was very boring.

57:37

Joe slept, I didn't sleep.

57:40

And he says and Joe snores.

57:42

So I, you know, I trust that he's right.

57:44

-

He wasn't bound?

57:47

-

No.

-

Shackled?

57:49

-

Oh no, absolutely not.

He was free to get up and walk around

57:51

Interviewer

And Maha, his wife, was waiting for him?

57:55

-

We didn't know that.

57:58

So this was the best part.

57:59

We landed in Sydney.

58:05

We had to stop in Tahiti to refuel,

58:07

but again, you know, just to refuel,

58:10

neither of us got off the plane.

58:11

And then we fly on, I don't know,

58:16

it was, you know, it's a long flight.

58:18

And we landed in Sydney and by that time,

58:22

we had tried to keep the local news from learning about it.

58:26

You know we didn't want there to be a big media

58:30

attention there because this is back when,

58:32

you know not a lotta people had been released yet,

58:35

so there's a lot of attention, much more media news.

58:36

But we were unsuccessful and the media had heard about it.

58:39

So the Australian government landed us at the tarmac

58:41

and unbeknownst to me,

58:44

local council had arranged a small personal jet,

58:46

not a jet, personal plane, a little bitty six seater,

58:53

owned by a friend of his

58:57

to fly us from the international airport at Sydney

58:59

to a local airport nearby.

59:02

And so we got off of this very fancy Gulfstream jet,

59:05

in fact immigration came into,

59:10

they checked my passport there,

59:12

immigration came onto the plane and checked it there.

59:14

They asked for Mr. Habib's passport.

59:18

Mr. Habib, do you have a passport?

59:20

I'm sorry, it's outta date.

59:21

I've been away for a little while.

59:22

And they, oh that's okay.

59:25

And so we walked down the steps of that

59:27

and you know we're kind of rickety and uneasy

59:30

and I didn't even know about this.

59:33

And my co-counsel's there

59:35

and he says, Joe, come we've,

59:37

and so he directs us to this other plane.

59:38

Okay, fine.

59:40

So we walk up the steps of this other little plane,

59:41

Mamdouh was ahead of me,

59:44

and he explains to me, this is what we're gonna do.

59:45

Oh, that's a good idea.

59:47

And he looks in and he sees his wife

59:49

who he hadn't seen in you know, forever sitting in the back.

59:53

And that was completely, and he was shocked by it.

59:56

You know at one point in fact

1:00:01

interrogators had told him that she was dead.

1:00:03

He sort of falls back, loses his balance

1:00:06

and tumbles into the plane,

1:00:10

pours himself into the back seat.

1:00:12

They embrace.

1:00:14

And my co-counsel, I will be forever in his debt for this,

1:00:16

had the presence of mind to bring this sort of like,

1:00:20

you know, one of those screens that you put up in your car

1:00:22

to keep the sun out,

1:00:25

and he spread it sort of in this jury rig fashion

1:00:27

between the rows of seats where they were

1:00:30

and the rows of seats where we were,

1:00:32

and we were the only people on the plane.

1:00:34

And the pilot taxis off and takes off

1:00:36

and all you hear is them sobbing in the seat behind us.

1:00:38

It was fabulous.

1:00:43

Give them a little privacy.

1:00:44

And we were flying along and there's actually press planes,

1:00:46

helicopters hovering behind us, filming us.

1:00:49

So then we landed at some other airport,

1:00:52

I don't know anything about Sydney

1:00:55

but something out in the suburbs somewhere

1:00:57

and then took a car to his family's, to his home.

1:00:59

Interviewer

He had said to us that

1:01:05

when we interviewed him,

1:01:07

that he didn't believe it was his wife,

1:01:09

because they told him that she was killed, she was dead.

1:01:10

Did you?

1:01:15

You didn't get that--

1:01:16

-

I think that at first he didn't know who it was.

1:01:17

I mean he came around to believing it.

1:01:19

That was obvious, but at first he was really shook

1:01:22

by the sight of this person.

1:01:25

You gotta remember he hadn't seen her in a long time

1:01:27

and she hadn't seen him.

1:01:29

Interviewer

So was David Hicks in this mix at all?

1:01:32

David Hicks was not your client,

1:01:36

so this was totally separate.

1:01:37

-

David was, David was our client.

1:01:39

He was part of Rasul.

1:01:42

But while Rasul was pending,

1:01:44

they designated David as a candidate

1:01:46

for military commissions.

1:01:49

So then he was sort of in a separate category,

1:01:51

because one, everything that Rasul was about was

1:01:54

holding people with no legal process at all.

1:01:57

Well, suddenly Hicks has legal process.

1:01:59

Nobody knew what it was about,

1:02:01

and they designated a military lawyer for him.

1:02:03

So though Hicks was part of Rasul,

1:02:06

he was also a special case.

1:02:10

And since he had a military lawyer,

1:02:12

after Rasul came down, I didn't see him.

1:02:14

I eventually did meet him on one of my other trips.

1:02:17

I happened to go down there the same time

1:02:19

that his lawyer was seeing David

1:02:21

and I was able to spend, you know,

1:02:25

30 seconds chatting with him.

1:02:28

That's the only time I met him.

1:02:29

And he hadn't, he was not released for some time,

1:02:31

'til sometime later.

1:02:33

Dan Morely represented him.

1:02:35

-

So did he know,

did he feel like he, since he was also Australian,

1:02:37

that he should have been released along with Habib,

1:02:39

at the same time?

1:02:41

-

That I can't speak to.

1:02:43

I didn't, I don't know how he--

1:02:44

Interviewer

Who else did you represent

1:02:48

if you can tell us,

1:02:49

if you kept returning to Guantanamo,

1:02:50

who else were you representing during that time?

1:02:53

-

Well, the when,

1:02:55

so the original four who were part of Rasul,

1:02:57

you know, Asif Iqbal and Shafiq Rasul,

1:03:02

they were released in March

1:03:04

and then Habib was released the following January

1:03:05

and then Hicks got out later and he had military council.

1:03:08

So that case all the people were gone.

1:03:10

And then in 2005 I took a hiatus

1:03:13

and wasn't representing folks,

1:03:19

'cause that's when I wrote the book that I wrote.

1:03:21

Interviewer

Could you tell us just for the public,

1:03:23

with book you wrote?

1:03:25

-

It's called "Guantanamo and the Abuse

1:03:26

of Presidential Power."

1:03:27

And that was published in 2006.

1:03:28

And so after that case was done

1:03:31

or after the book was done is when

1:03:32

in September of 2006 is when the President announced

1:03:35

that he was taking the people out of the CIA black sites

1:03:38

and bringing them to Guantanamo.

1:03:43

And I got, I was contacted by

1:03:44

the Center for Constitutional Rights

1:03:49

and asked whether I would represent one of those guys.

1:03:50

And I do along with Brent Mickum,

1:03:53

who similarly, his original clients had been released

1:03:55

and he was without a client as well.

1:03:58

So we got back in and we now represent Abu Zubaydah.

1:04:00

Interviewer

And can you tell us

1:04:04

a little bit about that representation?

1:04:05

-

So Zubaydah is to me,

1:04:08

I didn't know this at the time,

1:04:12

one of the most important cases there.

1:04:15

And the reason,

1:04:17

and when I say I didn't know it at the time,

1:04:19

I didn't know it,

1:04:20

all I knew when they asked me to represent him

1:04:21

is that he was one of the high value guys

1:04:23

or what they call high value.

1:04:25

He was the first person who was held in a CIA black site.

1:04:27

He was picked up almost 10 years ago exactly,

1:04:32

in end of March, 2002,

1:04:35

transferred to a black site in Thailand.

1:04:38

And he was the first one subjected to

1:04:42

the enhanced interrogation techniques.

1:04:44

Because he was the first,

1:04:47

we know more about his interrogation

1:04:49

or I should say more has been released publicly

1:04:51

or leaked about his interrogation

1:04:55

than any of the other high value people.

1:04:57

And we know, because the memos that were written,

1:05:00

the torture memos,

1:05:03

which are the subject of so much, you know, infamy

1:05:04

were written to justify Abu Zubaydah's interrogation.

1:05:07

And then they later used that justification

1:05:12

for everybody else.

1:05:14

But it was written for,

1:05:14

you know in the summer of 2002

1:05:16

to justify his CIA interrogation.

1:05:17

And Ali Soufan and his book,

1:05:20

what he talks about is his trip to Thailand to be,

1:05:22

to originally be responsible for Zubaydah's interrogation

1:05:28

and then the CIA took over and kicked him out

1:05:31

and then that's when enhanced program began.

1:05:33

We know that Abu Zubaydah was waterboarded 83 times

1:05:37

in the month of August, 2002 alone.

1:05:39

And these are all not from,

1:05:43

I can't tell you anything that my client tells me,

1:05:44

but this is reported in other places that are.

1:05:48

So we have the description in the Red Cross

1:05:50

of what his interrogations were.

1:05:53

He's the only one who was subjected to all

1:05:56

of the enhanced interrogation program,

1:05:59

all of the enhanced interrogation techniques,

1:06:01

because he was the first,

1:06:03

so they were trying out all of 'em.

1:06:05

He was described by one of the interrogators

1:06:06

as the guinea pig.

1:06:08

Whereas by the time Khalid Sheikh Mohammed

1:06:09

and al-Nashiri, and Bin Attash came along later,

1:06:12

they used a much more narrow subset.

1:06:16

He was subjected to all of them.

1:06:19

And the reason it mattered, well,

1:06:24

even if you knew nothing else,

1:06:27

it would still matter a great deal.

1:06:30

But it is even more significant because of the difference

1:06:32

between who they thought Abu Zubaydah was

1:06:37

when they picked him up and put him through this

1:06:39

and who they now think he is.

1:06:41

They now recognize

1:06:43

and accept that he was not a member of Al-Qaeda.

1:06:45

He had not sworn bay'ah to bin Ladin.

1:06:48

He was not ideologically aligned with Al-Qaeda.

1:06:51

He had no knowledge of,

1:06:57

or participation in any of Al-Qaeda's plots.

1:06:59

He's ideologically doesn't believe in the kind of

1:07:02

what bin Laden would have called offensive jihad,

1:07:07

that is you take the jihad to the infidel,

1:07:10

as opposed to defensive jihad,

1:07:13

which is, you know you have a right to defend

1:07:14

other Muslims wherever they are,

1:07:17

but you don't have a right to,

1:07:18

you know attack innocent people.

1:07:19

The United States after 9/11,

1:07:23

didn't recognize those differences.

1:07:24

They just didn't understand.

1:07:26

And they thought that all training camps were the same

1:07:27

and so on.

1:07:29

And so they thought that Abu Zubaydah

1:07:30

was a big deal in Al-Qaeda.

1:07:32

In fact, nothing of the sort,

1:07:36

and they now accept that.

1:07:38

So the difference between who he was when they tortured him

1:07:39

and what they did to him

1:07:41

and who they now accept them to be,

1:07:42

you know he's never been charged

1:07:44

in the military commissions.

1:07:45

He won't be.

1:07:46

What they know of him is so insignificant

1:07:49

compared to--

1:07:52

-

Who is he then?

-

What do you mean who is he?

1:07:55

Interviewer

I mean what is it,

1:07:56

if he's none those, what is he?

1:07:57

-

Well, I can tell you what's publicly available.

1:07:59

Interviewer

Yeah.

1:08:01

-

What's publicly available is,

1:08:02

you know he's described in the Washington Post as a,

1:08:04

you know, a minor personnel clerk,

1:08:05

a logistics guy for a different camp.

1:08:09

And the reason he was so widely known is that

1:08:12

he would arrange travel schedule.

1:08:15

Bring people into Pakistan,

1:08:18

so he's on the phone all the time.

1:08:19

She's on the phone all the time,

1:08:20

so obviously he's not a maher.

1:08:22

And you know it's frustrating

1:08:25

because I am one of the few people in the world

1:08:28

who actually knows what was done to him,

1:08:30

and knows the interrogation techniques that were done

1:08:34

and what effect that they had.

1:08:37

You know, just what psychologically waterboarding meant

1:08:41

or, you know I mean,

1:08:46

they suspended him from hooks in the ceiling.

1:08:47

I mean, people you can say out loud is that torture?

1:08:49

Hmm, I don't know, let me just rub my chin a little bit.

1:08:51

I don't know?

1:08:52

It's wrong.

1:08:54

They just suspend him from hooks in the ceiling,

1:08:55

he can barely, feet dangling on the floor

1:08:56

and leave him there for five or six hours,

1:08:58

throw water on him.

1:09:00

You know he urinates on himself, defecates on himself?

1:09:00

Is that torture?

1:09:03

I don't know.

1:09:04

I'll let you guys debate about that.

1:09:05

I'm content with the conclusion that that's not good.

1:09:06

That's wrong.

1:09:09

I know all the things that happened to him.

1:09:11

I can only repeat what's public

1:09:13

and that's very frustrating to me.

1:09:16

Interviewer

Can you tell us,

1:09:18

you said, you know what psychological damage.

1:09:20

Has he--

1:09:22

-

I don't wanna suggest, and I'm not a doctor,

1:09:24

and a doctor has not been allowed to go see him,

1:09:28

that is our own doctor.

1:09:31

But I've looked at his medical records

1:09:33

and they have given me permission to say certain things.

1:09:37

You know he no longer, he doesn't know his own birthday.

1:09:43

He can't remember what his mother looks like.

1:09:46

He can't remember how many brothers and sisters he has.

1:09:50

He can't remember his father's face.

1:09:54

I mean, he's just sort of the world is gradually

1:09:57

going dark for him.

1:09:59

He's had over,

1:10:01

it's not quite as bad now, lately,

1:10:03

but when he first got to Guantanamo

1:10:04

he had a period where he had over 300 seizures.

1:10:06

He would just have these,

1:10:09

he has this acute sensitivity to sound.

1:10:10

Like we're in a room that's fairly quiet.

1:10:13

And he would be insane about the sound of the fan.

1:10:15

It's very, it's a very strange thing.

1:10:20

And it just, you know, it sends him into this,

1:10:22

I don't know.

1:10:27

But he has these, loses consciousness.

1:10:27

I mean the records are replete with him,

1:10:29

you know, the guards going into his cell

1:10:31

with the smelling salts and waking him up.

1:10:32

He just...

1:10:34

Less of a problem now.

1:10:35

Interviewer

Why won't they let the doctors see them?

1:10:39

Can you tell us?

1:10:42

-

Well you know, getting a doctor down there,

1:10:43

getting an independent doctor

1:10:46

or doctor who's not with the government down there

1:10:48

is a real challenge.

1:10:51

And you gotta, you know,

1:10:52

that doctor has to have a top security,

1:10:54

top secret clearance, and you've gotta

1:10:57

demonstrate what its role is gonna be in the case.

1:10:59

And there, all I can tell you is

1:11:03

that there are a lot of motions that are pending.

1:11:04

Interviewer

And why, and again, you know,

1:11:06

whatever you could tell us,

1:11:09

why wouldn't they release him if he turns out to be

1:11:10

a very minor figure who is so damaged that he--

1:11:12

-

Look there are, over half the people at the base now

1:11:16

have been cleared for release.

1:11:18

Cleared by two administrations,

1:11:20

and nobody can get out.

1:11:22

So.

1:11:25

-

Has he been

cleared for release?

1:11:26

-

That's not public.

1:11:27

I can't tell you that.

1:11:28

Interviewer

Has your sense of Guantanamo

1:11:30

changed in now representing Zubaydah

1:11:35

and seeing it from that angle

1:11:38

given what you saw with Habib?

1:11:40

-

Yeah, there's no question.

1:11:42

The thing,

1:11:45

no it's, Guantanamo is a number of different units

1:11:47

or camps, and not everybody's in the same camp

1:11:51

and not everybody is subject to exactly the same conditions.

1:11:53

Zubaydah is in a place called Camp Seven.

1:11:57

But compared for instance to maximum security units

1:12:00

in the United States,

1:12:05

compared to administrative segregation units

1:12:06

in the United States,

1:12:10

conditions at Guantanamo for the great majority

1:12:11

of the people down there are vastly better.

1:12:13

Much better than they used to be.

1:12:16

There's a lot of communal living.

1:12:17

It is, it really is a fairly well run prison now,

1:12:21

as prisons go.

1:12:24

I mean prisons can be colossally cruel places,

1:12:25

and it is not as bad as a lot of

1:12:28

American mainstream, mainland prisons.

1:12:30

The moral bankruptcy of Guantanamo

1:12:35

is no longer the conditions under which they are held.

1:12:39

It is the fact that

1:12:42

many, many people have been cleared for release

1:12:45

and can't get out.

1:12:47

And that's, and it's become such a political football

1:12:49

that it's impossible to release those guys.

1:12:53

That's what makes it morally bankrupt in my estimation.

1:12:55

Interviewer

I know you can't tell us, describe it,

1:12:59

I assume, but you have been to Camp Seven then,

1:13:02

is that what you're saying?

1:13:04

-

No and no I can't,

1:13:05

I'm not saying that.

1:13:06

He's brought from Camp Seven to a room

1:13:09

where I meet with him.

1:13:11

And I'm allowed to say that he's in a place

1:13:14

called Camp Seven, but I've never been back to it.

1:13:15

Interviewer

And so I'll just ask you,

1:13:19

that I'm sure we know the answers,

1:13:20

have you ever heard of Camp No?

1:13:22

Have you ever seen Camp No?

1:13:24

-

I'm not sure whether I've ever seen Camp No.

1:13:25

I may have seen someplace that is Camp No

1:13:28

that I didn't know that it was.

1:13:31

But I've never seen a place that has been described

1:13:35

to me as, no one's ever said that's Camp No.

1:13:37

Interviewer

Do you know anything more

1:13:41

about Camp No that--

1:13:42

-

Only what I read in the papers.

1:13:43

Interviewer

Okay.

1:13:45

You mentioned Jose Padilla earlier.

1:13:46

Did you work on his case?

1:13:48

-

No.

1:13:50

When, so all of them went up to the Supreme Court

1:13:51

at the same time: Rasul, Padilla, and Hamdi.

1:13:54

And we were all working together

1:13:56

because everybody recognized

1:13:58

that the cases were gonna be examined as a set.

1:14:00

We didn't realize that Padilla would be...

1:14:04

Well some people feared that Padilla

1:14:08

would get the result that it did,

1:14:11

rather than a merits ruling,

1:14:13

just sort of a, you know, no you didn't file

1:14:15

in the right court ruling.

1:14:15

But they raised sort of a cluster of cases,

1:14:18

a cluster of circumstances that it made sense

1:14:21

to resolve as a set.

1:14:23

So Rasul is foreign nationals outside the country.

1:14:25

Hamdi is U.S. citizen captured outside the country,

1:14:29

but brought here.

1:14:33

And Padilla is U.S. citizen captured inside the country.

1:14:34

So it made sense for us to all

1:14:38

coordinate and align our presentations.

1:14:42

Interviewer

You ever visited the Naval brig

1:14:45

to see Padilla or--

1:14:46

-

No, or Hamdi, no.

Interviewer

Hamdi, and

1:14:49

did you ever go to Egypt

1:14:54

to see the conditions that Habib--

1:14:55

-

Oh no, no, no, no,

1:14:58

he, as best we can reconstruct,

1:14:59

he was in the state security prison.

1:15:01

I wouldn't be able to go there.

1:15:02

I mean, it's the answer is no, I haven't gone,

1:15:04

but I couldn't get in even if I did.

1:15:06

Interviewer

And you didn't go to any other black site--

1:15:09

-

Oh, no you can't go to a black site.

1:15:12

I'd like to go to a black site.

1:15:14

But no, the only other prisons,

1:15:15

the only prisons that,

1:15:18

other prisons that I went to in connection

1:15:19

with post 9/11 work, were not in connection with Rasul.

1:15:20

I represented guys who were in Iraq as well

1:15:23

on a different case,

1:15:25

and I went to see them in the prison in Iraq.

1:15:26

It was a U.S. facility in Iraq.

1:15:29

-

You mentioned being Jewish earlier.

1:15:33

Did that impact at all in terms

1:15:35

of your relationship with either detainee that you--

1:15:38

-

Never has.

1:15:43

Absolutely nothing.

1:15:44

Everybody asks that.

1:15:46

Everybody asks that.

1:15:46

And you know, again, I have to, I can't,

1:15:48

if it hasn't been cleared,

1:15:53

I can't tell you what Abu Zubaydah says.

1:15:55

But I can tell you it's not a problem at all.

1:15:58

There are a lotta lawyers who've been involved

1:16:00

in Guantanamo litigation who are Jewish,

1:16:01

from the very beginning.

1:16:03

And in fact, the core,

1:16:04

the nucleus from the beginning is,

1:16:06

were mostly Jewish lawyers.

1:16:09

Me, Michael, Tom Wilner at Sherman and Sterling,

1:16:12

Neil Koslow, the nucleus we're Jewish lawyers,

1:16:15

which I think is wonderful.

1:16:21

Habib, no.

1:16:26

It just simply has never been a problem.

1:16:27

It's much more of a problem for some American Jews here,

1:16:30

than it is for those guys there.

1:16:33

Interviewer

And did the government ever try to interfere

1:16:35

with your meetings with Habib

1:16:37

or with Zubaydah where--

1:16:38

-

Well one doesn't know.

1:16:41

There are some indications

1:16:43

that there may have been some surveillance.

1:16:45

I mean, they do monitor your interviews.

1:16:48

They can watch them.

1:16:49

Interviewer

Do you think they listen in?

1:16:52

-

They say they don't.

1:16:54

I think it's very unlikely now,

1:16:57

because none of these guys are important

1:17:00

for intelligence gathering purposes.

1:17:03

I mean, they've been there so long.

1:17:05

It's not an intelligence gathering facility anymore.

1:17:06

Interviewer

Back then, maybe.

1:17:10

-

Back then it wasn't important,

1:17:13

but they thought it was,

1:17:14

so they might've been treating it that way more.

1:17:15

Interviewer

And you started saying

1:17:17

about the government interference,

1:17:18

did you have a story to tell with that or it's just that?

1:17:19

-

There was some indication

1:17:22

that they might've been monitoring what,

1:17:24

my first conversation with Habib.

1:17:26

He later reported to me that after I left one day,

1:17:29

you know, you're there for the morning,

1:17:33

then they kick you out for lunch

1:17:34

and then you come back after lunch.

1:17:36

And he said that after I left one day,

1:17:37

they came in and were saying something

1:17:39

that indicated that they had heard what I had said,

1:17:43

what we had been talking about.

1:17:45

I'm not quite sure.

1:17:47

Interviewer

Did that surprise you?

1:17:49

-

No, not initially.

1:17:51

I mean they were still really freaked out

1:17:52

about us going down there.

1:17:54

You know, I mean,

1:17:57

when we, they were still trying to interfere.

1:17:57

You know when Tom Wilner first went down there,

1:18:00

that's when

1:18:01

his client said to him that they had,

1:18:05

an interrogator had come to him, to the to the client,

1:18:09

and said, why are you trusting this guy?

1:18:12

He's a Jew and he works for a Jew firm that, you know,

1:18:14

represents the state of Israel.

1:18:17

What are you, you know?

1:18:19

Most of these guys are

1:18:20

they scoff at things like that.

1:18:22

They just think these are

1:18:24

childish attempts to frustrate relationships.

1:18:25

They think these guys must be,

1:18:28

you know, what do you think I'm a five year old?

1:18:30

What do ya, come on.

1:18:31

But they were still trying.

1:18:33

They don't anymore.

1:18:34

Interviewer

You had mentioned that

1:18:36

you don't think closing Guantanamo is such,

1:18:37

is the issue for you is as it is for a lotta people,

1:18:40

that it's really, it really is a different kind of issue.

1:18:43

Could you describe, discuss that a little bit,

1:18:46

why you say that?

1:18:49

-

Well, there's no question that Guantanamo

1:18:51

has become a symbol.

1:18:55

And to the extent that it's a symbol,

1:18:57

it is bad to keep it open,

1:19:00

because it's bad for national security, right?

1:19:02

The existence of the symbol is a recruiting tool.

1:19:06

It fosters anger and so on.

1:19:09

It's a bad thing.

1:19:13

You don't have to feel as though you are kowtowing

1:19:16

to international opinion in order to remove symbols,

1:19:19

to alter symbols.

1:19:22

However, if you alter the symbol

1:19:24

and create a situation that in fact

1:19:28

has the appearance of legitimacy,

1:19:30

but in reality is worse, in the conditions they're in,

1:19:33

well then, all you've done is alter the symbol.

1:19:37

And in fact, the lives of the clients are our worse.

1:19:40

Well who who would advocate for that?

1:19:44

Then it's only purpose has been symbolic.

1:19:46

Then there's the move,

1:19:49

the only purpose of the move has been symbolic.

1:19:50

Well, I'm not into symbols.

1:19:52

I'm not in a sort of symbolic gestures.

1:19:54

That would be an empty hollow gesture.

1:19:55

Interviewer

It would take Guantanamo off their radar,

1:19:58

though wouldn't it?

1:20:00

-

It's already off the radar.

I mean, domestically,

1:20:02

I mean nobody pays attention to it anymore.

1:20:04

-

And did you expect Obama to close Guantanamo

1:20:08

when he was elected?

1:20:11

Did you think that?

1:20:13

-

Yeah, I did not foresee two things.

1:20:14

I did not foresee,

1:20:17

what people tend to forget,

1:20:18

is if you go back to late 2008, second half of 2008,

1:20:20

the bipartisan consensus in favor of closing Guantanamo,

1:20:26

people forget how deep that appeared.

1:20:30

Every, you know throughout the campaign,

1:20:34

every Republican candidate,

1:20:36

certainly every Democratic candidate,

1:20:38

favored closing Guantanamo.

1:20:40

The only one who didn't was Mitt Romney,

1:20:42

who's famously said, I wouldn't close it, I'd double it.

1:20:43

And everybody thought he was just a nut job

1:20:46

who was saying this for the sake of the Republican base,

1:20:48

the real radical right wing base.

1:20:51

That he couldn't really believe it either,

1:20:55

no one who was really smart could believe it.

1:20:56

Polling data showed that most people wanted

1:20:58

to have it closed.

1:21:00

Which is natural, I mean, if a cultural elite says

1:21:01

we should close it, we should close it,

1:21:05

we should close it,

1:21:06

Americans will think, oh yeah, we should close it.

1:21:07

I did not expect the backlash against the announcement

1:21:10

that Obama made.

1:21:18

Obama didn't either.

1:21:18

And what's worse, I didn't expect Obama

1:21:20

to retreat from his position so quickly.

1:21:22

I mean, as soon as he got push back, he just abandoned it

1:21:26

and he walked away from the one person

1:21:30

in his administration who was most behind it,

1:21:32

which was Greg Craig,

1:21:34

the White House Counsel who lost his job.

1:21:35

So he gave up the narrative,

1:21:38

and he's been paying the price ever since.

1:21:40

Interviewer

Why do you think he gave it up?

1:21:42

-

Democrats have been doing that since Truman.

1:21:44

They will allow national security judgements to be driven,

1:21:47

not by expert national security assessments,

1:21:53

but by perceived political weakness.

1:21:59

Interviewer

But couldn't he have seen that coming?

1:22:03

I mean--

1:22:04

-

He could've

and he should've,

1:22:06

but this is an assessment that Democrats have made

1:22:07

since Truman, that it is not in a Democrat's interests

1:22:11

to stake an aggressive claim

1:22:16

and try to shift the narrative on national security,

1:22:19

because that is a ground.

1:22:23

This is their assessment.

1:22:24

I'm not saying it's right,

1:22:25

I think in fact it's wrong.

1:22:26

But it is their assessment that doing so

1:22:28

plays into a Republican argument.

1:22:31

And they would say

1:22:33

they would say we were right, Joe,

1:22:34

because look national security is not an issue

1:22:37

for the American public anymore.

1:22:39

You know that, in my estimation, is a miscalculation,

1:22:43

because it is part of what has so enervated the left,

1:22:46

which was the group and young people.

1:22:53

It is one of the things that they feel,

1:22:55

well he's just a politician.

1:22:58

It turns out he's not a change agent after all.

1:22:59

He's just a guy.

1:23:01

I mean he was always just a guy,

1:23:03

and it was unfair to think that be more than just a guy,

1:23:04

but if he was aggressive about the same,

1:23:06

if he was aggressive about the narrative

1:23:10

that we thought he believed in,

1:23:12

A, he thinks it would turn the country against him.

1:23:17

He's mistaken.

1:23:19

That's the calculation they make,

1:23:20

but he's mistaken

1:23:21

and B he'd at least keep

1:23:23

what constitutes the left in the United States invigorated.

1:23:26

Interviewer

Did you know Greg Craig?

1:23:32

Did, so did he tell you that's why he got,

1:23:33

he lost his job?

1:23:37

-

No, no.

1:23:38

But it was obvious.

1:23:39

Greg really was our ally there.

1:23:40

He really did agree,

1:23:42

well he claims that Obama did too, really agreed with us.

1:23:45

And he went to bat for it.

1:23:48

I mean he drafted the executive orders

1:23:50

that were issued January 22nd.

1:23:52

Interviewer

And sending the Uyghurs to D.C.,

1:23:56

he was behind that too?

1:23:58

-

That I'm not sure of.

1:24:00

I don't remember whether that was,

1:24:02

I know that was a big deal within the administration,

1:24:04

but I'm not sure who.

1:24:06

Interviewer

So you're telling us

1:24:08

you're disappointed too?

1:24:11

-

Sure.

1:24:12

-

We are and

how do you see, how do you see it going forward?

1:24:17

Do you think

1:24:20

it'll change at all?

1:24:22

Or you think this will just remain

1:24:24

foreseeable future if everybody's afraid

1:24:27

of national security issues, they just won't touch it.

1:24:29

-

So what you're really asking me there,

1:24:31

it seems to me is when will the war on terror end?

1:24:33

And I'll tell you what I think,

1:24:36

which you know that and 3 1/4 will get you a latte.

1:24:39

It will end when

1:24:45

we turn our attention

1:24:48

and start to and feel a need to demonize China.

1:24:50

There's only room for one worst of the worst.

1:24:55

And if China becomes the worst of the worst,

1:24:58

then for instance, we'll say,

1:25:00

well you know it's godless communism after all.

1:25:01

And we'll suddenly remember that

1:25:03

Islam is an Abrahamic religion,

1:25:07

and you know, they're really just like us.

1:25:09

They're not like those godless communists.

1:25:11

So then we'll find somebody else to demonize.

1:25:13

Interviewer

Looking back at your last 10 years, Joe,

1:25:16

how would you feel like you're glad,

1:25:20

even though some of it has been very disappointing,

1:25:23

some have been successful?

1:25:24

How does it feel in your life

1:25:27

in terms of how you look at your life with that period

1:25:29

compared to the work you were doing before?

1:25:32

-

Huh?

1:25:36

When I was younger, when I was a young lawyer,

1:25:46

I used to say that I'm not a person

1:25:50

who deals much in regrets.

1:25:51

I just, you know, one makes one's decisions and you move on.

1:25:54

I no longer say that.

1:25:58

I now say that I feel filled with regret,

1:26:00

and the greatest regret in my life is becoming a lawyer,

1:26:05

my greatest professional regret.

1:26:08

I don't, I think we made mistakes in Rasul,

1:26:13

or not just Rasul,

1:26:16

but all the post 9/11 litigation, we made mistakes.

1:26:17

The case was litigated pretty well

1:26:20

and you know, we won and that's not how you measure it.

1:26:22

If you do progressive work, you win, you lose

1:26:26

has nothing to do really with whether you litigate well.

1:26:28

The cases aren't decided on those levels,

1:26:31

they're decided on a political level.

1:26:33

We made strategic mistakes.

1:26:38

I regret that we...

1:26:42

The way that,

1:26:47

the book that will be written about Rasul eventually

1:26:47

is this is an example of the rule of law triumphing

1:26:52

and this is an example of us not losing our way

1:26:55

in a moment of crisis.

1:26:59

This is how it's supposed to work

1:27:01

and, you know, all honor to the Supreme Court for doing this

1:27:04

and doing Hamdi and doing Hamdan and Boumediene

1:27:08

and you know, this is a much more...

1:27:10

And so you are,

1:27:13

the case is appropriated

1:27:16

and made into this myth,

1:27:19

which is a lie.

1:27:23

And I regret not being able to make plain

1:27:27

that if the real objective of this litigation was,

1:27:35

and this was the objective,

1:27:40

to act as a meaningful restraint on executive power,

1:27:42

to prevent abuse by the executive

1:27:47

of the most vulnerable in society,

1:27:53

in that we have affected no change at all.

1:27:58

In fact, there are no restraints

1:28:00

on what the government does.

1:28:02

You don't want to hold 'em at Guantanamo,

1:28:03

you hold 'em at Bagram.

1:28:05

You don't wanna hold 'em at Bagram,

1:28:06

you hold 'em at a secret site in Somalia.

1:28:07

Our ability to use the law

1:28:11

and the symbols of the law,

1:28:15

the Supreme Court, the Constitution,

1:28:17

these are just symbols,

1:28:20

to act as effective barriers against the,

1:28:21

an overzealous executive, has been a complete failure.

1:28:26

And the only thing that keeps it from getting,

1:28:32

going back the way it was is,

1:28:36

you know we have a President who declares that he's,

1:28:37

he won't let it, as a matter of personal grace.

1:28:40

But he ain't gonna be there.

1:28:44

And who knows what in fact he's doing.

1:28:45

So it's a, so...

1:28:48

You know, it would be uncharitable to say

1:28:56

the last 10 years has been waste.

1:28:59

The last 10 years...

1:29:01

I mean, I've, this is something that I,

1:29:03

again it will sound self-aggrandizing,

1:29:05

it's not meant to be that way.

1:29:06

I have been continually involved in this work,

1:29:09

the post 9/11 detention challenges,

1:29:15

longer than any lawyer in the country,

1:29:17

longer than any lawyer in the world,

1:29:19

'cause there was an extended period

1:29:21

where Clive wasn't involved,

1:29:22

and Michael's no longer really involved,

1:29:23

and Steve Watt is involved in other stuff now.

1:29:25

So the core,

1:29:27

Clive's still involved now,

1:29:30

but there was a period where, so uninterrupted period.

1:29:32

And it has,

1:29:36

what the sociologists would call,

1:29:41

it has given me a certain amount

1:29:43

of reputational capital, right?

1:29:44

People call me up and they call me professor

1:29:47

and I publish things in the Los Angeles Times.

1:29:48

And I have my position as a result of it.

1:29:51

I'm not, you know,

1:29:56

a criminal defense lawyer in private practice

1:29:58

and blah, blah, blah.

1:30:00

And I published a book with this press and that press

1:30:02

and so yada yada, yada, those things,

1:30:04

there's no question that, you know,

1:30:07

there is a certain fraction of society who thinks,

1:30:09

well, you know, good for you and honors bestowed upon you.

1:30:11

And I would be wrong, that's all personal however,

1:30:15

And it's obviously silly to say,

1:30:18

you know it has no value to me, and it has no effect.

1:30:20

It's why you're taking the time to interview me now,

1:30:25

because you think there's something

1:30:27

worth memorializing there.

1:30:28

But did we do any good?

1:30:32

No, I don't think so.

1:30:34

Interviewer

Well, if you hadn't been there

1:30:38

and these cases weren't decided in this direction,

1:30:41

would things have been worse?

1:30:44

-

Good question.

1:30:46

Hard to know.

1:30:47

You know as a result of Rasul,

1:30:49

you can sort of set in motion

1:30:52

one of those Rube Goldberg chain of events,

1:30:53

you know like an exam and a tort question.

1:30:57

You know the brick falls from the ceiling

1:31:01

and lands on a guy's foot

1:31:03

and he throws a hot pallet under somebody else's nose.

1:31:04

So Rasul allows people to go to the base,

1:31:09

allows people to litigate.

1:31:11

It is part of the political pressure

1:31:13

that leads to some people being released.

1:31:15

It is part of the narrative of abuse of presidential power

1:31:17

that was associated with the, you know,

1:31:22

the period from about 2000, mid-2002, late 2002,

1:31:27

accelerating, growing until about 2008.

1:31:32

That was an important period in U.S. history

1:31:34

and Rasul is a part of that.

1:31:36

And all the detention work that came out is a part of that.

1:31:39

And some people are home,

1:31:42

both as a matter of the legal decision,

1:31:44

that is a judge said, send this man home

1:31:47

or as a matter of the political pressure.

1:31:49

The administration feels a need to reform the practices

1:31:52

and so releases people.

1:31:54

How much of that would have happened without Rasul?

1:31:58

Hard to know.

1:32:02

Because it was a much bigger thing than just one case.

1:32:03

What, again, don't think like a lawyer,

1:32:06

as a political matter,

1:32:10

that is what is it that shrinks

1:32:11

the amount of political capital the Bush administration has?

1:32:14

Hurricane Katrina is as important

1:32:18

as the decision in Hamdan, right?

1:32:21

It blackens the eye of the Bush administration

1:32:23

and it gives them less space to move

1:32:26

and therefore they are less able to resist

1:32:29

political pressures in one,

1:32:32

coming from one quarter or another.

1:32:34

So it diminishes the political stability

1:32:36

of the Bush administration.

1:32:40

You know, the economic crisis that starts in the beginning

1:32:42

of 2008 has some of that same effect, right?

1:32:45

It creates a sense that, you know,

1:32:48

outta here with this guy,

1:32:50

and you don't wanna hear anything about him

1:32:51

you don't wanna hear anything he says,

1:32:53

and don't talk to me one more word

1:32:54

about the unitary executive.

1:32:56

That's what got us in this mess.

1:32:57

Well you know, is that related to Rasul?

1:32:59

Yes, in kind of, you know, (speaking in foreign language)

1:33:02

it's this sort of global sense that he's just not for us.

1:33:05

And that has the inevitable fact

1:33:10

that when a country like, you know,

1:33:12

Indonesia comes and says,

1:33:15

you know what you really outta release our guys,

1:33:17

cause we're sick of it too,

1:33:18

finally they say, okay, you guys can go home.

1:33:20

So, can Rasul take credit?

1:33:23

No, it's part of as a sociological matter,

1:33:26

as a political science matter,

1:33:29

don't think of it as lawyers,

1:33:31

think of it as what effects political reality.

1:33:33

Does it contribute? Yes.

1:33:36

Is it dispositive?

1:33:37

Nothing's dispositive.

1:33:38

What's the straw that broke the camel's back?

1:33:39

Is that, can therefore you say this straw

1:33:41

is that makes all the difference.

1:33:44

Well, what about the 62 million

1:33:45

that were put on there beforehand?

1:33:46

-

Where's this?

1:33:49

-

We're at 10 minutes on time.

Interviewer

Where is the strategic mistakes

1:33:51

that you made?

1:33:55

I don't know that you wanna go into in great detail,

1:33:57

but you said you made some strategic mistakes.

1:33:58

-

We did foresee the resilience

1:34:01

of the administration's policies,

1:34:03

the way it would morph and the prison would change

1:34:07

into a long-term detention center.

1:34:10

So that was one problem.

1:34:12

We didn't foresee the way it would become,

1:34:13

we didn't foresee the way the Obama administration

1:34:18

would retreat from its view and back off of its narrative.

1:34:20

And so we thought having won the election now

1:34:26

we'd reaped the benefits.

1:34:28

That's an old miscalculation, by the way.

1:34:31

I mean, it happened on the left and the right.

1:34:33

You know the Christian right

1:34:35

was very disappointed with Reagan.

1:34:36

So maybe we're no different than them.

1:34:38

And we didn't work hard enough

1:34:42

to make sure the President maintained that narrative after,

1:34:47

or lay the groundwork for the narrative

1:34:53

before the January 22nd orders, executive orders.

1:34:54

Now, maybe we never could have stopped it,

1:35:00

that this is how he was gonna be.

1:35:02

I mean it seems to me his philosophy,

1:35:04

for much of the first term of his office has been,

1:35:07

you know never kick a Republican

1:35:10

who's within reach of a microphone.

1:35:12

And that's, if that's his philosophy,

1:35:14

then you know, there's nothing,

1:35:17

so, okay fine then,

1:35:19

there's nothing we can do.

1:35:22

Interviewer

You know, Johnny let me change the record.

1:35:24

I only have a few more minutes,

1:35:26

but if he's running out of time.

1:35:27

So when you said that you regret being a lawyer

1:35:29

what exactly would you have done

1:35:35

that would've been more perhaps successful or what--

1:35:37

-

Well, I don't know what successful is,

1:35:41

and I wouldn't describe what I do now as successful,

1:35:42

but I might've been happier.

1:35:44

-

Okay.

-

And I wish I had been an historian.

1:35:48

I was a history student in school,

1:35:50

and I wish I had had the courage to go on and get my PhD.

1:35:53

But, you know, everybody knows that

1:35:58

there's a lot of PhDs who are working as waiters

1:36:00

and cab drivers and lawyers can get a job.

1:36:06

So I took the path of least resistance

1:36:09

and went to law school.

1:36:11

Interviewer

I think I know how you'll answer this Joe,

1:36:13

but I need to ask it.

1:36:15

Don't you think you made a difference that you

1:36:17

wouldn't have made as a historian?

1:36:19

-

No.

1:36:22

Look, I...

1:36:24

There's no way people hear this knowing

1:36:26

what they think they know about my career,

1:36:30

without thinking that it's false modesty.

1:36:32

I understand that, I get it.

1:36:33

And the likelihood is even if I were,

1:36:37

you know a successful academic,

1:36:39

that I would be anonymous, completely, utterly anonymous.

1:36:41

In fact, for the overwhelming majority of people

1:36:46

I'm anonymous anyway

1:36:49

I think that I have done some good for some people

1:36:52

as a criminal defense lawyer.

1:36:55

You know, you get the occasional acquittal

1:36:56

or you get a better negotiation

1:36:59

than you otherwise would have gotten.

1:37:00

But I, you know, in the big arc of history

1:37:04

and don't ask me whether it, you know,

1:37:07

bends towards justice, I'm not convinced of that.

1:37:09

Have I made a difference?

1:37:13

That's silly.

1:37:16

Interviewer

Did Boumediene make a difference

1:37:18

for constitutional law?

1:37:21

-

Well yeah.

1:37:24

-

I mean, you know, this Boumediene finally establishes

1:37:25

the proposition that okay, we know what,

1:37:27

we know a little bit more about the writ of habeas corpus

1:37:33

and the reach of the writ.

1:37:37

We'd never had an occasion to say,

1:37:39

this is unlawful suspension of the writ before.

1:37:41

And these guys are entitled to it

1:37:45

and you have violated the Constitution

1:37:47

in removing the writ from,

1:37:49

removing their right to challenge their detention.

1:37:50

Interviewer

I mean you might have been involved

1:37:54

in the litigation, but we'd never know if you were.

1:37:55

-

I was.

1:37:57

-

You were.

But Rasul led to Boumediene.

1:37:58

It was and--

1:38:00

-

Boumediene won because we won Rasul.

1:38:01

-

But because of that, couldn't you,

1:38:04

couldn't you say that now there's a

1:38:07

piece of our history, our law that--

1:38:09

-

So there's a great...

1:38:12

Michael Klarman is a great scholar

1:38:19

and he is a scholar of, you know,

1:38:21

latter 20th century America, and also a law professor,

1:38:25

and writes an awful lot about

1:38:30

you know sort of the Civil Rights Movement.

1:38:32

And evidently he's writing a book,

1:38:33

I hear this second hand,

1:38:35

on great cases that triggered massive backlash,

1:38:39

which has produced an entire subgenre of literature

1:38:47

about whether these cases were a good idea.

1:38:50

-

And the cases I think he's analyzing

1:38:53

are Brown V. Board, Roe V. Wade, Miranda versus Arizona,

1:38:54

and a fourth one, I can't remember.

1:39:00

Might have been Furman versus Georgia.

1:39:02

I think those are the four.

1:39:04

So...

1:39:09

If you think not in terms of

1:39:16

winning a case,

1:39:24

but in terms of changing a practice,

1:39:25

what is the place of these four cases?

1:39:33

And I, those are very difficult questions.

1:39:40

Those are very difficult questions.

1:39:43

There are a lotta people who say that Brown V. Board

1:39:45

was a bad idea.

1:39:47

-

And you'd put Boumediene in that selective,

1:39:48

it sounds like.

1:39:51

-

You know, I, it's hard.

1:39:52

You know, Jackson in his famous dissent in Korematsu

1:39:59

says essentially, why did you do this?

1:40:02

Why did you bring this case to us?

1:40:04

Because you do this, we're gonna screw it up.

1:40:06

And then it's the decision we come down with,

1:40:08

is gonna lay around like a loaded weapon.

1:40:11

And it's, and the next President that comes along,

1:40:13

is gonna be able to use that decision.

1:40:15

And the practice that you're challenging,

1:40:17

it woulda gone away by itself.

1:40:19

So stop it.

1:40:20

Don't come to us.

1:40:22

That's what he says.

1:40:23

Okay, fine.

1:40:24

Well, what are you gonna do if you're Korematsu's lawyer?

1:40:25

What are you gonna do,

1:40:28

you go to Fred and you gonna say, you know, Fred,

1:40:29

I'm sorry but I can't challenge this

1:40:30

because Justice Jackson says you just gotta live with it,

1:40:31

'cause it'll go away by itself.

1:40:34

How the heck does Fred know

1:40:36

that it's gonna go away by itself?

1:40:38

So I don't think we had a choice.

1:40:40

I think we had to do what we had to do in Rasul.

1:40:41

I think they had to do what they did in Boumediene.

1:40:44

And when I say Boumediene won because of Rasul,

1:40:47

that's obviously not true,

1:40:49

but Boumediene, had Rasul lost,

1:40:50

there would have been no Boumediene.

1:40:52

And had Rasul been decided differently,

1:40:53

Boumediene would have probably come out.

1:40:56

You know, but Boumediene is the culmination

1:40:59

of not just Rasul,

1:41:01

but a lot of things that happen.

1:41:02

By the time, Boumediene's 2008,

1:41:03

you know that's the high water mark for our narrative.

1:41:07

So it's a culmination of...

1:41:13

But it's, I believe that it's wrong to view

1:41:17

a legal decision, a Supreme Court decision

1:41:22

as something that can have this kind of effect.

1:41:26

That's just not the way....

1:41:32

You know what that does?

1:41:38

It's lawyers saying, oh God, boy law is so important,

1:41:39

man oh man, law is important, whoa.

1:41:42

And not only that, but the Supreme Court, yeah,

1:41:45

all hail to the Supreme Court.

1:41:47

Well, that's just stupid.

1:41:49

It's just not true.

1:41:50

It's not reality.

1:41:51

And every sociologist knows it.

1:41:53

Interviewer

Well, we could have this discussion

1:41:56

ad infinitum I'm sure,

1:41:58

but I think it's really important

1:41:59

for people to hear what you're saying.

1:42:00

I think people would also feel that

1:42:02

objectively you did make a difference,

1:42:05

your group did make a difference,

1:42:07

'cause the fact is it did move law forward

1:42:08

and it did release some men from Guantanamo.

1:42:12

-

Yeah, right.

1:42:16

It also entrenches the idea that law is responsive,

1:42:18

and law isn't responsive.

1:42:22

You know, I mean the Marxists would say

1:42:25

it's a false consciousness.

1:42:27

The Chomsky would say, and I'm not a Marxist.

1:42:29

But Chomsky would say,

1:42:33

you know the system's gotta let some people win

1:42:35

or otherwise it's completely illegitimate,

1:42:38

everybody will see it.

1:42:39

It maintains its legitimacy by letting a few people,

1:42:40

you know, I mean, casinos gotta to let somebody win.

1:42:43

Somebody's gotta pull this and it's gotta have three sevens.

1:42:45

Hey, hey, I won, it's a good system.

1:42:47

If everybody lost all the time,

1:42:50

people would stop going to casinos.

1:42:51

Interviewer

Well, I hope your cynicism

1:42:55

doesn't necessarily--

1:42:56

-

Cynic, you know,

if I were a cynic,

1:42:59

if I were really, really a cynic,

1:43:00

I wouldn't keep doing what I do, but here I am.

1:43:02

You know there's still another tree

1:43:05

that I can bash my head against.

1:43:07

Interviewer

And will it be another detainee

1:43:09

that you would support

1:43:10

or do you think this--

1:43:12

-

So if Zubaydah were released?

1:43:14

I don't know, that's a good question.

1:43:18

Let's get Zubaydah out first.

1:43:20

One thing at a time.

1:43:21

-

Okay, good.

-

Are there questions I missed Joe?

1:43:25

Is there something that you feel important

1:43:26

since you're a historian in your heart

1:43:28

and your soul that you'd like to share with

1:43:31

people 50 years from now?

1:43:35

-

Very curious to know how people look back

1:43:38

on this period of 50 years from now.

1:43:40

We shall see.

1:43:42

But, no.

1:43:43

-

You think it'll

be like looking back,

1:43:45

it took that long for the Japanese internment

1:43:46

to at least be, people apologize?

1:43:50

Do you think it'll take that long for us

1:43:53

to apologize for what happened, if anyone ever does?

1:43:55

-

I think it will eventually get integrated

1:44:02

into this myth of,

1:44:08

I call it, the myth of deviation and redemption.

1:44:10

The myth of deviation and redemption is

1:44:13

society is basically on this liberal trajectory

1:44:16

of greater and greater rights,

1:44:20

and greater and greater justice.

1:44:22

You know, it's the more perfect union.

1:44:23

Ours is the only constitution that aspires to

1:44:25

a more perfect union.

1:44:27

We're already perfect, but we're gonna get more perfect.

1:44:29

It's the city on the hill, that's the religious version.

1:44:32

So, and the myth is that we're on this path

1:44:35

and every now and again, we get confused and we go,

1:44:40

we lose, the fog settles in and we take a wrong turn

1:44:44

and we, you know, and there's these odd,

1:44:48

aberrational, anomalous periods like, oh, slavery

1:44:50

and internment and you know,

1:44:56

the forced relocation and slaughter of Native Americans,

1:44:58

but you know, that's not who we really are

1:45:01

and we're back on the path.

1:45:03

And so we have deviation and redemption

1:45:05

and eventually I suspect that we will integrate this period

1:45:07

into that myth, but it's just a myth.

1:45:11

And it's unfortunate that it will probably be read that way,

1:45:14

'cause the myth is so powerful

1:45:20

that it just sort of, you know, it's this mod

1:45:21

that just sort of consumes everything in its path,

1:45:23

so that people don't see things for what I perceive to be

1:45:27

as they really are, which is much more,

1:45:31

much less this sort of one-dimensional trajectory.

1:45:41

I think that's just silly.

1:45:46

Interviewer

Well, I wanna thank you.

1:45:49

It was--

1:45:50

-

Not at all.

Interviewer

It was very, very worthwhile for us.

1:45:51

I really appreciate it.

1:45:54

-

Happy to do it.

Interviewer

Johnny needs 20 seconds

1:45:56

of room tone where we--

1:45:57

-

We all sit quietly and contemplate, okay.

1:46:00

Interviewer

So okay, John.

1:46:02

John

Getting room tone.

1:46:04

End room tone.

1:46:21

Margulies, Joseph - Interview master file

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