Wilner, Tom - Interview master file / Witness to Guantanamo / Duke Digital Repository

Interviewer

For participating

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in the Witness to Guantanamo project.

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we invite you to speak of your experiences

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and involvement with detainees

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who are held at Guantanamo Bay, Cuba.

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We are hoping to provide you with an opportunity

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to tell your story in your own words.

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We're creating an archive of stories

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so that people in America and around the world

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will have a better understanding of what you and others

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have contributed and experienced.

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Future generations must know what happened at Guantanamo,

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

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We appreciate your courage and willingness to speak with us.

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If any time during the interview, you want to take a break,

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please let us know.

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And if there's anything you say that you'd like to retract,

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please let us know and we can remove it.

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And I'd like to begin with just some basic information

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as to your name.

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And why don't I just go through the list, so name?

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Tom Wilner.

1:00

Interviewer

And country of origin?

1:02

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United States

1:05

Interviewer

And where you live, currently living?

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Washington DC.

1:07

Interviewer

And birth date and age.

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I'm a born July seven, 1944

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so I'm 66 years old, but I look much younger.

1:15

Interviewer

(laughing) Dude.

1:18

And your marital status?

1:21

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I'm married, I've been married for 43 years.

1:24

Interviewer

Wow, with children?

1:29

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Three children.

1:30

Interviewer

And your education?

1:32

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I went to Yale undergraduate

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and university of Pennsylvania Law School.

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Interviewer

And currently, what are you doing?

1:38

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I am now of counsel at Shearman & Sterling

1:41

in Washington, DC.

1:43

Interviewer

Okay, which is where we are today?

1:46

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Yes.

1:49

Interviewer

Okay, so I'd like to begin

1:51

by asking you how you became involved in Guantanamo issues,

1:53

could you give a little background

1:58

as what you were doing before

1:59

and how that moved you into becoming involved?

2:00

-

Well, let's see.

2:04

I have been a litigating lawyer all my life,

2:06

mostly in international litigation.

2:11

I did a lot of international trade work

2:14

but also did just general litigation.

2:16

And I've represented

2:20

a number of foreign parties, foreign countries.

2:22

I don't think that had anything to do

2:26

with being retained for Guantanamo.

2:28

But in about March of 2002,

2:31

I was approached by a woman in Washington

2:35

who's a headhunter who was friendly,

2:40

with a lawyer in Abu Dhabi,

2:43

who was helping the group of Kuwaitis look for a lawyer

2:45

to represent a number of Kuwaitis

2:51

who were really missing at time

2:57

in the Afghanistan-Pakistan area

3:00

and wanted somebody to represent them.

3:02

They had apparently approached,

3:04

as I say some famous lawyers,

3:06

I know they had approached Warren Christopher,

3:09

former secretary of state, who was at O'Melveny & Myers

3:12

and he had turned them down.

3:15

And they had also approached Lloyd Cutler at Wilmer, Cutler

3:16

and he had turned them down.

3:20

And I think it was through a recommendation

3:22

of Wilmer, Cutler, somebody at Wilmer Cutler

3:25

a guy named John Greenwald, who I...

3:28

so they approached me.

3:32

I've grown up in Washington all my life.

3:34

I have an awful lot of contacts in Washington

3:37

and I've dealt a lot with the U.S government,

3:39

so they approached me to see whether I do it.

3:42

And the first question was whether I could represent them

3:44

in helping them find, locate these people.

3:48

I think at that time, there were about 10 Kuwaiti families

3:52

who would come together for 10 kids.

3:56

And I said, "Yes, I would."

3:59

And I ran it through the firm's system at the time,

4:01

there was no big thing, but to help them locate the kids.

4:05

I'll just go on and talk about it.

4:09

I and a fellow who helped from the very beginning,

4:13

Neil Koslowe, Neil Koslowe who had been

4:16

in the justice department all his life.

4:19

And we made some inquiries

4:20

who are our friends in the government,

4:22

whether we can find out where these people were,

4:24

the Kuwaitis.

4:28

And we were told by our friends in the government,

4:29

we can't tell you, we're not gonna be able to tell you.

4:34

About that time, when the Kuwaitis retained me for this,

4:38

they asked that I go over to Kuwait

4:41

to meet with the families.

4:44

And they were very insistent

4:46

that I could drop out at any time,

4:47

if any of them, if I thought any of these people

4:50

had connections to terrorism, we could drop out,

4:52

but they encourage us to go meet the families.

4:55

And I went over at,

4:58

I think it was the beginning of April, 2002

4:59

with a colleague here, a woman associate, Kristine Huskey.

5:02

And we went over to meet the Kuwaiti families

5:06

in Kuwait City.

5:09

And it was a very interesting trip,

5:11

we were there for about three or four days.

5:13

We spoke to the families

5:17

and the leader of the Kuwaiti families at that time,

5:20

there was a lawyer then narrow named,

5:24

there was this American lawyer from Abu Dhabi

5:27

named William Brown,

5:30

but he was assisting a lawyer there,

5:32

named Abdul Rahman Al-Haroun,

5:35

and who was very friendly with the father

5:37

of one of these missing kids,

5:40

who was him?

5:43

Khalid Al Odah.

5:44

And, so we met with them and met with the families.

5:46

I was impressed because each of the families

5:51

had compiled a dossier, dossier

5:54

on their kids and what they had done.

5:57

And it was amazing,

5:59

because many of them had been on trips before,

6:00

sort of charitable trips to dig well,

6:05

to help with schools whenever they were on vacation.

6:08

So they had a dossier the history of this.

6:10

Also I was impressed, I'm really not,

6:14

I have represented some Arab countries.

6:17

For instance, I represented OPEC in a big antitrust case,

6:21

although this had nothing to do with it

6:24

but I really wasn't familiar with the culture.

6:26

And I was impressed by how much charity

6:28

meant to these people.

6:33

So we said, oh, people aren't charitable missions

6:34

that's a silly excuse.

6:37

But over there, they have a very keen sense of charity,

6:39

particularly in Kuwait because it was a guy said to me,

6:44

"We're wealthy by the grace of God

6:48

"and we've got an obligation

6:51

"to help less well-to-do people."

6:52

I didn't understand too, being in the United States,

6:55

what a disaster the Afghanistan-Pakistan area was.

6:58

I mean, it was just devastated with floods,

7:01

with famine and everything.

7:06

So they had set up charities to help people,

7:07

and it was a mission to go down there.

7:09

I asked all the people,

7:12

"Do you think these people are connected with terrorism?"

7:14

They said, "No, no, no, it couldn't be."

7:17

Who knows, you know, who knows?

7:18

But while we were over there and Abdul Rahman and Khalid

7:20

had tried to go to the U.S embassy

7:26

to see if these people were in U.S custody

7:28

they got no answers.

7:30

While we were there,

7:32

the U.S Government told the Kuwaiti Government

7:33

that I think eight of them

7:35

were in U.S custody of Guantanamo.

7:37

And then at the same time, the Red Cross said,

7:40

four other Kuwaitis were there as well.

7:43

So we learned at that point.

7:46

Interviewer

Can I interrupt for-

7:50

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Sure.

7:51

Interviewer

Can you suspect that,

7:52

they were in Guantanamo, had you heard of Guantanamo

7:53

at that time-

7:55

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I, yes, I had heard of Guantanamo.

7:56

As a matter of fact, I was a naive kid.

7:57

I say this, it's true.

8:02

I think Guantanamo opened up in January of 2002,

8:03

and I saw pictures of Guantanamo

8:07

and people being shuffled in an orange jumpsuits and chains.

8:09

And my initial reaction was,

8:12

Oh boy I'm glad we got these bad guys.

8:15

I mean, these were the bad guys,

8:17

they'd gone in them there put them there.

8:19

That was my initial reaction.

8:21

So we suspect that they might be in Guantanamo

8:23

or in one of the other prisons in Afghanistan or Pakistan,

8:27

but we were told they were in Guantanamo at that point.

8:32

Also, while Kristine and I were in Kuwait,

8:38

Neil Koslowe was here and was doing research.

8:41

The Center for Constitutional Rights

8:44

had filed a lawsuit already

8:45

asking for habeas Corpus

8:48

and it was sort of stalled in the district court here,

8:50

nothing had happened on it.

8:53

We felt that the issues were going to be determined

8:55

in the context of this,

8:58

and we recommended to the Kuwaitis

9:00

that we bring suit as well,

9:02

a modest suit.

9:05

I mean, as I've always said, we always asked

9:05

we didn't even ask for habeas relief,

9:08

which means release them.

9:11

We asked for the right to fair hearings

9:14

under the habeas statute and also the right to have counsel

9:16

and the right to be able to speak,

9:20

with their parents, with their families.

9:23

It's all we asked for it.

9:25

So we did that and we found that we got the consent,

9:28

which was a big thing, I think for the Kuwaitis,

9:31

because they didn't wanna do anything

9:33

to offend the United States.

9:35

But they went along and we filed suit on May 1st, 2002.

9:37

That's probably a longer end so then.

9:42

Interviewer

No, that's a great answer.

9:43

When you say we filed suit,

9:44

was it in conjunction with C.C.R?

9:45

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C.C.R had filed suit

9:48

and the case was sitting in the district court.

9:50

We filed suit and said, it's a related case.

9:53

So really we came in as part of the same.

9:56

Interviewer

Did you have any meetings

10:00

with the other lawyers, 'cause early on

10:01

there were only a few lawyers involved in this,

10:04

did you meet with them and strategize?

10:05

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We spoke a little bit with,

10:09

the C.C.R case was Michael Ratner was involved,

10:11

but the person who really handling it

10:17

day-to-day was Joe Margulies,

10:18

who's at that time was,

10:21

was Joe with Northwestern?

10:24

No, he was in Minneapolis.

10:25

He was a death penalty lawyer in Minneapolis.

10:27

So I spoke with Joe a bit, Clive Stafford Smith was involved

10:31

but more in getting Joe involved.

10:36

I spoke with Joe a bit.

10:39

I didn't meet Joe until the night the government

10:40

moved and we consented to consolidate the two cases,

10:46

that's the Rasul Case,

10:49

which was the C.C.R Joe Margulies' case,

10:51

and our case, Al Odah Case on behalf of the Kuwaitis.

10:53

We agreed to consolidate them for procedural purpose,

10:57

for jurisdictional purposes.

11:01

The government moved to dismiss,

11:03

saying that the courts have no jurisdiction

11:06

over these people who are foreigners

11:08

outside the sovereign territory of the United States.

11:10

Interviewer

Just a quick question.

11:13

Did you strategize with the other lawyers

11:15

or pretty much you went off on your own,

11:18

with your own lawsuit

11:21

and it could have overlapped with issues,

11:23

but I just wondered-

11:24

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We didn't,

11:26

well, we talked,

11:29

we didn't come to necessarily agreement,

11:32

we took slightly different approaches in the two cases.

11:35

And I think we felt that was consistent.

11:38

The first time we tried to strategize

11:41

was the night before the first argument

11:45

before it came before Judge Kollar-Kotelly in the court.

11:50

And C.C.R and Joe Margulies came in here, into this room.

11:54

And we met and talked about the argument the next day

12:00

and we had slightly different tax in that argument, so.

12:03

Interviewer

And along, along the way,

12:09

the Kuwaitis were behind you

12:12

and they supported you and your colleagues?

12:14

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Yes, they did.

12:17

Interviewer

And did you get any blow back or pushback

12:18

from people in the firm or from other people

12:21

and handling what could have been a very high profile case?

12:24

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I did.

12:27

As I say,

12:30

I cleared the initial representation

12:35

which was defined these people.

12:38

So it was the firm's conflict system,

12:40

there was no system above that really.

12:41

Then when I had been in Kuwait in April of 2002

12:46

and decided we were gonna file a lawsuit,

12:51

I realized this was taking it to a different stage,

12:55

and this would be a rather public lawsuit.

12:59

So I came back and actually the firm,

13:01

the partners were having a retreat,

13:05

somewhere in Pennsylvania or New York.

13:07

And I went to it directly from the plane really,

13:10

to meet with the senior partner and others.

13:15

And it had become a huge issue,

13:16

a huge issue within the firm.

13:21

And the senior partner at that time was furious with me.

13:23

And there was a debate throughout the firm

13:28

with people taking different positions.

13:31

Interviewer

Why do were they concerned, really serious?

13:34

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I think that they were concerned

13:36

because this would be a high profile case.

13:38

It was a New York firm,

13:45

very dependent on business from the financial sector.

13:47

It was a time when the country was under threat

13:52

and we would be challenging the administration

13:55

in the middle of it.

13:57

There was anger at me

13:59

by some people thinking that I had sandbagged them,

14:01

which was really not true.

14:05

It became a very bitter thing.

14:08

But I'm sympathetic to some people.

14:11

There was one woman partner I know

14:15

who was very friendly with a lot of people

14:16

who were killed on September 11th,

14:18

and went crying in the senior partner's office

14:20

'Hey, we can't do this, this is terrible,

14:23

"we're standing against America."

14:26

I think some people were probably concerned

14:28

that we'd lose business because of it and all that.

14:30

The senior partner was under real pressure

14:34

because there was a downturn in the economy,

14:36

he had just become senior partner, it was a threat.

14:38

There's also a tradition,

14:41

law firms today are more interested in,

14:44

it's not a criticism of Shearman & Sterling,

14:50

I mean, many of them are more interested in

14:51

how they stand in the American lawyers ranking

14:54

of how much they make then what they do as lawyers.

14:57

And so what I said at the time,

15:00

and I said, honestly not to be holier than now.

15:02

I said, look, I'm happy to resign.

15:07

I would like to resign

15:09

because of won't put you in this position.

15:10

That's tough because Kristine and Neil

15:13

couldn't afford to resign at that time.

15:16

But I said, I will do this.

15:18

And so I see something happened in Kuwait,

15:20

which really emphasized the importance of it to me.

15:22

When we, Khalid Al-Odah

15:27

who's I said was sort of the leader of the family members.

15:31

Khalid had been a Colonel in the Kuwaiti Air Force.

15:34

He had trained in the United States,

15:38

during the last Gulf War,

15:40

he had been sort of an underground hero,

15:41

leading against Saddam Hussein,

15:45

taken great risk to himself.

15:47

And at the final day in Kuwait

15:50

after we had been with everyone,

15:53

I can still remember this vividly

15:56

Khalid was so frustrated at that time

16:00

and it was only what four months or five months

16:02

after his son was missing, now it's nine years.

16:05

But he had tried to meet with the U.S,

16:08

he had gotten a no answer, they had treated him badly,

16:10

which was insulting to me.

16:13

This is a guy who was a friend of the United States.

16:14

And he said something like,

16:16

"My whole life I've looked to the United States

16:19

"of the model of what I want,

16:22

"how concrete to be its principles and everything."

16:24

And then Khalid did just, he just I started crying.

16:26

He said, "And I've been so disappointed."

16:29

And he looked at me and said,

16:33

"Tom, you've restored my faith

16:34

"in the principles of the United States."

16:36

Asking for a fair hearing and everything.

16:39

So when I came back,

16:41

I mean, it was really a very moving thing to me

16:43

because it's something I believe in to as we can go on.

16:46

But I really believe

16:51

that we have the greatest country in the world

16:53

because of our principles.

16:57

Our principles are what distinguishes us,

16:59

we are a new thing in the world.

17:01

And it's sticking to those principles

17:04

is what distinguishes that makes us better,

17:05

if you abandon them, you abandon what the United States is.

17:07

Anyway, so I told the senior partner,

17:10

very honestly I didn't want to put him in this position,

17:15

there could be all of these controversies,

17:18

I would like to resign.

17:22

And, then they begged me not to resign

17:24

but the vaguely said that don't look worse.

17:29

It's like what they, so I was caught in this position.

17:31

It was difficult for the firm and it was difficult for me.

17:37

In retrospect I think it might've been much better

17:41

for both of us had I just been able to resign

17:43

and do the case because I was under all of constraints

17:46

with the firm and other things through the time I did

17:49

made it a little tougher.

17:52

Interviewer

Would you've been able to afford

17:54

you would have seriously (indistinct).

17:56

-

Well, the funny thing is,

17:58

the Kuwaitis were very interesting.

18:02

They insisted on paying.

18:04

And it was interesting to me

18:07

because I mean the firm gave the money to charity

18:09

'cause I've never crazed it step-by-step

18:12

but that's what they did because I don't know exactly why

18:14

but the Kuwaitis I said to them

18:21

this should be a pro-bono case principle

18:24

and they said, no.

18:28

It was very interesting.

18:28

They said, "we don't believe, we want the best

18:30

"and we want to be able to hire it

18:33

"and we don't want to get some pro-bono things

18:35

"and we're gonna pay and we want to pay."

18:37

At first, they were gonna raise money among themselves,

18:40

as I understood it,

18:42

subsequently I learned the government then came in

18:43

and subsidized to them.

18:46

But so not only that,

18:47

I've always been successful getting cases.

18:54

And so, it was something I had to do.

18:56

This case is something I had to do at that point.

19:01

It was clear, and I would have some more to myself

19:03

as much as I needed to.

19:06

My kids are growing, they've got enough.

19:07

Interviewer

Do you think

19:10

you might be representing terrorists

19:10

that you even think about that at the time, or did you?

19:11

-

Yeah I did, and it always concerned me, although I,

19:14

to me it, I wasn't representing them on their innocence.

19:22

Although I, based on the files I saw,

19:28

there was certainly a lot of evidence

19:30

to indicate that they probably were innocent.

19:32

What I was always felt strongly about

19:34

is the right to have a hearing,

19:37

to see whether they were innocent or not,

19:40

to be caught in a black hole without that right.

19:42

All the Guantanamo cases were ever about,

19:46

was a right to get a fair hearing.

19:48

That's all, not you're innocent or not.

19:50

And even now, today, I'm not representing individuals.

19:53

I don't care so much how the individual cases come out

19:56

for people, I don't care.

20:00

It's the fact that they have a fair hearing.

20:02

That's all, that's what matters.

20:04

Interviewer

Did you get some support from the firm

20:06

as to what you were doing?

20:08

-

Sure, I mean, look,

20:10

the firm allowed Kristine and Neil to work on the case

20:12

and others to work on the case.

20:17

They didn't make any money on it,

20:20

they gave the money to charity

20:23

and I was devoting a lot of time to the case.

20:24

And I'm as a senior partner

20:28

with a lot of other things I could be doing too.

20:30

So they gave support.

20:33

I and I think, you know, honestly a lot of people

20:35

like the senior partner at that time David Hellenic

20:39

agreed philosophically with the case.

20:42

I think he had a responsibility

20:45

to run a business organization and was concerned about that.

20:47

Now, I tend to think,

20:51

you do something right and you stand up for the rule of law

20:56

and people will respect you anyway,

21:00

and your clients will respect you

21:02

and other people will do it.

21:04

But, it's interesting how things have changed.

21:05

Now, it's a chic thing,

21:11

it's like representing women and women's rights cases

21:16

it's a chic thing.

21:21

At that time, even among lawyers, I was shocked.

21:22

It was not a chic thing to do.

21:25

It was constantly not only from my law firm,

21:28

but other places, my friends in Washington,

21:32

"Why are you doing this?

21:35

"Why are you standing up

21:36

"against the president in this time of crisis?"

21:37

Interviewer

Did people, anyone call you unpatriotic,

21:41

Or did you get death threats or any of those-

21:43

-

Not death threats.

21:47

Well, I got enormous amounts of hate email.

21:48

Interviewer

You did from strangers?

21:51

-

Strangers.

21:53

And from people I knew (laughing) but yeah.

21:54

Interviewer

And did you respond

22:01

to any of that or you just?

22:02

-

One of the toughest things for me was not responding to it

22:04

because whenever you get something,

22:06

I'd say, well I got to argue with this person.

22:09

I mean, you know, they'd say you're un-American

22:11

and said, well, and one of them responds,

22:13

"Hey, this is an American citizen,"

22:14

but I learned not to say anything.

22:16

So I just..

22:19

After a while it was about two or three years later,

22:21

I started collecting a few of them

22:23

but hundreds have gone away, they weren't.

22:25

Interviewer

So I don't want to go into all the

22:29

legal issues and such

22:31

because other people have read about that,

22:34

I'm more interested in just moving forward.

22:36

What happened before you went to Guantanamo,

22:39

that I'm very interested

22:42

and your experiences when you went to Guantanamo.

22:43

But in terms of strategies

22:45

and interactions with people along the way,

22:47

through up to the Rasul or Al-Odah case,

22:51

were there certain things that occurred along the way

22:54

that you think are memorable of worth

22:57

that are not just the legal issues

23:00

but things just in terms of interactions?

23:01

-

Well, I, you know..

23:04

Interviewer

How your clients or-

23:08

-

Well, the clients, you know,

23:11

the clients became more difficult as time went on.

23:14

And part of this honestly, was this guy,

23:22

William Brown who was the American

23:25

advising the Kuwaitis

23:30

is a sort of expat habeast fellow living in Abu Dhabi,

23:33

who honestly thought he knew everything.

23:39

And really was I don't think it was a good litigator,

23:46

really an experience or good litigator,

23:49

doesn't understand government policy.

23:52

And so he became a problem long ago.

23:54

And I'll give you an example.

23:58

We decided that the whole effort finally, to get a legal...

24:02

Strategically, what we were dealing with

24:15

was a government policy, putting people in Guantanamo

24:19

and denying them, any sort of hearing,

24:22

as well later, we learned about physical abuse.

24:25

Although we didn't learn that till much later.

24:27

I couldn't imagine that Americans were torturing.

24:29

I couldn't imagine it.

24:32

I mean, the abuse I saw

24:34

and they still I think the greatest abuse

24:36

was denying people, hearing, putting them in a box

24:38

without any opportunity to prove their innocence.

24:42

But, our strategy isn't on,

24:44

like I fought government policies before,

24:48

it was a three-pronged policy or strategy.

24:50

We went to the courts,

24:53

but I always knew the courts had taken a long time

24:55

so I didn't think that's where we'd get our relief,

24:58

I thought we'd have the government change its mind.

24:59

So the courts were one pressure point, the other was press.

25:02

Because these people we're not being tried in court,

25:05

they had no way they were really being tried in the press.

25:09

Everybody in the government is saying,

25:12

these are the worst of the worst, these are horrible people.

25:14

We had to get the other side out to the press

25:16

to say, there's another side to this.

25:19

That was one.

25:21

And the other was diplomatic,

25:22

to try and apply diplomatic pressure.

25:23

What I found on the diplomatic pressure, it was very tough

25:26

particularly with a country like Kuwait

25:30

and they've got a terrific ambassador here,

25:32

but Kuwait is so dependent on the United States,

25:34

and the United States saved them from Saddam Hussein

25:38

while they helped the United States

25:40

are totally dependent on the United States.

25:41

They're very unwilling to ruffle feathers.

25:43

And also I found that the Kuwait embassy,

25:45

the U.S people would say to them,

25:49

"Oh, these are bad people.

25:51

"You don't want to have anything to do with them, trust us."

25:52

Well, you know, their tradition was trusting people.

25:54

There was a security people.

25:57

So they said they're probably bad people.

25:58

So that was tough.

26:01

The press was a fascinator sorta story.

26:02

And to this day,

26:05

to this day the public doesn't know about Guantanamo.

26:10

You can only blame that m]now on the Obama administration,

26:14

I can't speak out anymore.

26:16

Nobody listens, but there was a set of facts out there.

26:18

These are the worst of the worst,

26:21

to try to chip away at that was very tough.

26:22

The first thing that happened,

26:26

there was a wonderful writer,

26:28

Pulitzer Prize writer Roy Gutman,

26:30

who at that time was with Newsweek.

26:33

I think he's now head of McClatchy's Washington Bureau.

26:35

We made contact with him,

26:43

and he wrote a wonderful story

26:45

on these five Kuwaitis they followed

26:48

who were trying to get out of that area,

26:52

said they were clearly not warriors or anything.

26:55

They had been invited to a house

26:58

by a Pakistani tribal leader

27:00

and then sold for bounties into captivity

27:02

and they're all in Guantanamo,

27:04

including Fouzi Al Odah,

27:06

and a breakthrough story, it was amazing.

27:07

And then nothing really happened about it.

27:12

And there was a little bit of flooring

27:14

and people went back bearing it.

27:16

So getting the story out in the press was very tough.

27:17

This guy, William Brown, was unbelievably bad

27:21

about things like that.

27:25

I mean, he would tried to micromanage it.

27:26

You've probably seen the picture that came out.

27:29

I thought it was devastating at the time

27:32

of people being taken to Guantanamo

27:34

in these planes where they're strapped and everything.

27:36

And it was just a horrible sort of picture.

27:38

He wouldn't let us release it to the newspaper.

27:41

He said it was too inflammatory or something.

27:44

I mean, remember what turned public opinion

27:46

against the war in Vietnam.

27:52

It was at general shooting the guy,

27:53

and they said one picture is worth so many things.

27:54

I still believe that the American people

27:57

if you get the facts before them

28:00

have a great sense of fairness.

28:01

But if they think you're holding whole horrible murderers

28:03

and killers in some way, you can't do it.

28:06

So that was tough, that was a continual fight.

28:08

I want to tell you a great story about this.

28:11

I'm friendly and it might've had something

28:13

to do with me being hired too,

28:16

but one of my best friends is Tony Lake.

28:18

Tony Lake was the national security advisor,

28:21

first national security advisor to Bill Clinton

28:24

and by the way, he was Obama's chief foreign policy advisor.

28:26

Tony I talked to him about this from the beginning

28:30

and he agreed totally, how we how we treat people

28:35

as a measure of how we will be treated

28:39

and the allies we can get.

28:41

He and Abner Mikva, who was a counsel to the President

28:43

and the former chief judge of the DC Circuit,

28:47

wrote an Op-Ed in really early on July, 2002

28:50

supporting the issues of Guantanamo,

28:57

we need to treat these people fairly,

28:59

we need to have fair hearings.

29:01

And so here's an Op-Ed by Abner Mikva and Tony Lake,

29:03

two distinguished people.

29:07

We could not get it published in the Washington Post

29:10

or the New York Times,

29:13

eventually they put it in the Boston Globe

29:14

but this about this.

29:17

It just showed me how hard it was to break through.

29:18

So, it was so tough.

29:21

Interviewer

So you're saying

29:25

there were lots of press issues

29:26

that even the staffs from press

29:28

or especially the staffs from press

29:30

was not on your side and just didn't-

29:32

-

Let me, yes, no,

29:34

not our side.

29:35

I really worked, trying to work these things.

29:38

I'm lucky because I grew up in Washington.

29:40

I know people in the Washington Post,

29:44

actually so I met with the editorial board

29:47

on the Washington Post,

29:50

the Washington Post gave us our first favorable editorial

29:51

back in 2002 saying just the basic thing,

29:55

you need to have a process

29:59

to distinguish the bad guys from the good guys.

30:00

There's been no process applied.

30:03

Now the Washington Post became difficult later

30:05

because they kept saying congress should do this

30:07

rather than the courts.

30:10

But that was a big thing.

30:11

I knew Frank Rich grew up in Washington

30:14

and was my sister's best friend growing up.

30:20

He put me in touch with the editorial board at the times

30:24

who wrote an Adam Cohen is a great editorial writer there.

30:26

They came out saying the same thing,

30:30

that you need to have fair earrings for these people.

30:32

Other than that, it was tough though,

30:34

and this Roy Gutman piece,

30:36

oh, I'll tell you a great story.

30:39

This was eventually 60 Minutes did a piece on this,

30:40

right about the time of Rasul, 60 Minutes two.

30:45

But early on, I was in contact

30:49

with the producer of 60 Minutes,

30:51

about it to say here's the story about this,

30:54

based on the Guttman article and thing,

30:56

you need to do a story about this.

30:58

She wanted to do a story, it was a producer there.

30:59

She called me back and we went through the whole thing.

31:04

She said, the network has killed it.

31:06

It's too political.

31:08

Too political and issue of a fair hearings for captives?

31:10

So yeah, the news media backed off.

31:15

And it was always extraordinary to me,

31:18

you'd have one good article, like Roy Gutman's,

31:21

Jane Merrow later on, some other things.

31:26

And then it would just sort of drop

31:30

and the next person wouldn't even know

31:31

about the prior things.

31:33

We could get no traction on this story.

31:34

Interviewer

Why do you think the media so unsupportive?

31:36

-

I think they were in,

31:40

I don't know, the great surprise to me about this,

31:44

and I'm still disappointed.

31:50

I mean, I don't look at this as a victory

31:51

'cause we're still in the same milieu of fear,

31:53

whatever it is.

31:59

I grew up right after the McCarthy era,

32:02

I guess I was born during it.

32:07

And I always look back and say,

32:09

how could people have been so intimidated

32:11

by the hysteria of communism?

32:14

And then the media really backed off

32:16

and now the media sets up, wasn't that a terrible thing,

32:18

the movies are made about it,

32:21

and we're going through exactly the same thing.

32:23

And nobody stands back and say, how can we do this?

32:25

How can we sacrifice our principles

32:27

because of a fear or a hysteria?

32:29

But standing against the President,

32:33

standing against those people was just nobody wanted to do,

32:36

whether it's because they were afraid of government funding

32:40

or just because they don't do it.

32:43

Interviewer

And why did William Brown

32:46

have the kind of power that you described

32:48

-

Yeah, I don't know.

32:51

it's a dynamic with he's very friendly with Abdul Rahman.

32:52

He's an American lawyer, he can trust.

32:57

He's a guy who has a home in Potomac or Washington

32:59

so maybe he was looked at as having some wisdom.

33:02

I mean, I think he did a very wise thing to them.

33:07

I think he advised them

33:11

that they should really get a top lawyer or law firm

33:13

so they would have credibility in their case

33:19

and that they shouldn't just take this as a lying down.

33:21

They should do that.

33:24

I think frankly, that was very wise.

33:25

But from then on,

33:27

by not backing away and buying,

33:30

trying to micromanage in many issues,

33:32

I think he was really a terrible detriment.

33:34

So matter of fact,

33:37

I mean, I'm not sour grapes, I'm just looking back on it.

33:40

As I said, I never wanted them to pay.

33:45

But then they got an appoint

33:48

where they were trying to get money from individual families

33:49

and they couldn't pay and I wasn't charging them.

33:52

I just let it go.

33:55

But as we went up to,

33:57

we lost before the district court,

33:59

as we knew we would, we lost before the court of appeals,

34:02

as we knew we would, very conservative,

34:05

although I think we won the arguments each time we lost.

34:07

And then the issue was,

34:12

should we apply for certiorari the Supreme court

34:13

and what's now known as a result case?

34:16

And I thought we should,

34:20

but I said , don't worry about the money,

34:23

I think we should it

34:28

William Brown then insisted on hiring a second law firm

34:30

to give an opinion about this.

34:35

And I said at the time

34:38

I've got all these professors involved,

34:40

now some of the best professors in the country,

34:42

Tony Amsterdam, Larry Tribe,

34:45

people you should ask them what the chances are,

34:47

they'll do it for free.

34:49

And he "Oh no I'm gonna hire another firm."

34:50

He hired Arnold & Porter, my former law firm

34:52

which gave a very negative opinion, I still have it saying

34:56

you have almost no chance of getting cert

34:58

and almost no chance if you're getting assertive winning.

35:00

So, you know, they went through that.

35:04

He then had a big meeting in London

35:05

where we had to go over and talk about it,

35:07

which probably cost a fortune.

35:10

When he went over in his suite, talking about it.

35:11

And in my analysis was,

35:14

look it's gonna be tough to get cert.

35:19

I think everything's gonna depend on Kennedy and O'Connor.

35:23

And, but I read their opinions and I think there's a chance.

35:27

And I think if we get started we're gonna win

35:32

because the government's saying

35:34

courts have no jurisdiction to do anything

35:35

and I don't think the courts are gonna like that.

35:37

So we need to get sorted and I think there's a way to do it.

35:39

And so, but so that was a waste of money in a way.

35:42

But I felt you know-

35:47

Interviewer

Before we talk about how you got cert,

35:49

why do you think you would lose?

35:51

You said you knew you would lose in the lower courts.

35:53

Why did you pick that?

35:54

-

Well, I don't think I realized it as much

35:56

until we lost before the district court.

36:00

We had an argument before Judge Kollar-Kotelly

36:04

in the district court.

36:08

The government's issue was they said,

36:09

because these are foreigners outside the United States,

36:11

they have no rights and no access to the courts.

36:14

I thought that's wrong, I'll just step back a second.

36:18

It fell into a trap of a box

36:23

which a lot of lawyers fall into.

36:25

A lot of American lawyers feel

36:27

all rights flow from the constitution,

36:29

which I question I don't think that's right.

36:32

I think the rights proceeding the constitution

36:35

but most people assume that.

36:36

And then there's been a question debated back

36:38

and forth through the years,

36:40

how far to constitutional rights extend to foreigners?

36:42

They've always extended to foreigners in the United States

36:45

but how far outside the country?

36:47

So it got caught in that debate.

36:49

And there were some cases,

36:50

particularly under Rehnquist's saying

36:52

they don't have constitutional rights outside the country.

36:54

I thought those cases were clearly distinguishable.

36:57

And in the argument before the district court,

37:00

we killed the government.

37:05

I mean, everything just killed them.

37:07

So I thought there was a chance

37:09

and Judge Kollar-Kotelly ruled against us.

37:10

And I realized it was about the time

37:13

that the ninth circuit had said

37:16

the pledge of allegiance was unconstitutional.

37:17

And there was this barrage of hatred

37:19

from everyone how can you?

37:22

And I realized the pressure she was under

37:23

with not to go against the government.

37:26

And judges even though they try to be objective

37:29

I suppose we were, that's one of the reasons

37:31

I felt we have to get press to open it up for the courts

37:34

to be able to rule in our favor.

37:37

But I realized we were in an environment

37:38

where the courts were not gonna stand up to the government.

37:40

Then when we get the DC Circuit,

37:44

which used to be a very moderate court, liberal court

37:47

progressive court is now about the most conservative.

37:50

And we had panels there of very conservative guys.

37:53

It's a matter of fact, it's funny,

37:59

Ray Randolph who was written in the DC Circuit,

38:00

all the opinions against this was a law school,

38:03

a classmate of mine and he's a friend of mine.

38:05

I mean, we always have fought, but he is so conservative.

38:07

So we knew we had no chance there.

38:11

I was disappointed though,

38:16

because almost as a tactical matter

38:17

we applied for re-hearing before them to get more time.

38:19

And I don't think we got any votes.

38:23

That the atmosphere was so pro-government.

38:25

So the key thing was getting to the Supreme Court.

38:31

Interviewer

Before we go to that,

38:34

you've mentioned diplomacy as your third prong,

38:36

did you have access?

38:39

You said you had access you said you met

38:40

with some of government officials, did that help you at all?

38:42

-

Nothing, government officials, well,

38:43

I did not have access to politically-appointed

38:52

government officials in the Bush administration.

38:54

So the government officials I had access to

39:00

were more career people and they would not talk to us

39:03

about these things, would not talk to us.

39:07

Interviewer

Do you think if you were a Republican

39:11

a Republican president would have had access

39:13

and could have made a difference, I mean?

39:15

-

There are Republicans I know

39:20

who might talk to about this,

39:24

including the former attorney general, Dick Thornburgh

39:28

and Rudy Giuliani briefly.

39:33

And I will say they were very disturbed

39:36

by Bush administration policies on this.

39:38

But they weren't taking stands on it either.

39:42

They weren't coming out front,

39:46

whether they were doing it internally

39:47

to try to loosen up the government, I don't know.

39:50

Later on, when we got to apply for cert,

39:56

we also looked around for amicus briefs to support us on it.

40:00

And at that time, one of the amicus briefs we tried to get

40:07

was from military people, actually two types,

40:12

one was former JAGs,

40:16

and I was hardened to say, I called all around,

40:18

the amicus brief was written by somebody else later

40:23

but I called around and I found two great guys,

40:27

John Hudson and Don Gouda are both who had been Navy JAGs

40:30

who were appalled

40:34

that these people weren't given the hearings

40:36

required by military law

40:38

and that they were being denied habeas corpus.

40:40

So I don't know whether they're Republican,

40:43

but the military people-

40:45

Interviewer

Were you feeling very frustrated

40:49

at that time, are you feeling that

40:50

this is what you expect in anyways so you're not surprised,

40:52

what was going on with you at that time?

40:54

-

My own feelings were,

40:58

we were in a fight.

41:05

I wasn't surprised

41:08

by the government's position at that time,

41:12

I was surprised by the lack of concern

41:16

in the public or the press.

41:19

I really thought when Roy Gutman wrote his story

41:26

people would realize.

41:31

I was so naive,

41:34

I thought when Tony Lake and Abner Mikva wrote something

41:34

that would have impact.

41:37

I was surprised by the difficulty

41:39

of changing public opinion and government policy

41:43

in terms of the courts.

41:47

It was a tough sort of regal fight.

41:50

That didn't surprise me.

41:52

The interesting thing and this goes ahead of myself,

41:54

in a way I felt at the time

41:58

there was something to fight and change,

42:00

in a way I'm more disappointed now because it continues.

42:05

As I said, we won in the courts

42:09

and we've lost in the shopping malls.

42:11

Nobody cares about this.

42:13

The policymakers don't, the public doesn't so..

42:15

Interviewer

Well, I'd like to hear more about that

42:20

but just briefly because a lot of people do know

42:23

about the cases and also they can research

42:27

that I'm more interested in you,

42:29

but just briefly, could you talk a little bit

42:31

about the sort of brief what was going on in your mind

42:34

and what you thought was really necessary

42:36

to put into your brief to make sure the court

42:38

does take the case because you felt that they should take it

42:42

and maybe they will and many people thought

42:45

they would not take it apparently-

42:47

-

Yeah, no, most people thought they wouldn't.

42:48

Interviewer

And why do you go forward

42:50

if you heard so much negativity that it's not gonna win

42:51

what their real problems, if losing sir?

42:54

-

Well, I didn't see the downside of losing

42:57

other than the money.

43:01

I really thought we could win.

43:04

It was clear that Kennedy and O'Connor were the keys

43:08

but I had read and I certainly did later,

43:14

most of their opinions

43:18

and I thought O'Connor and Kennedy

43:20

had a basic sense of fairness.

43:23

Also Kennedy,

43:30

he had concurred in the sweeping opinion

43:33

by Rehnquist that said

43:40

that foreigners have no constitutional rights,

43:41

foreigners outside of the United States

43:43

have no constitutional rights,

43:45

but his articulation of the reasons

43:47

was very different and was very reasonable.

43:49

I thought that we could get them, I read all their opinions.

43:53

And the petition for cert

43:57

was really keyed on their principles.

43:59

I thought that what was happening

44:01

most from a theoretical standpoint,

44:04

and actually this is really what the Boumediene court said

44:07

at the end four years later,

44:10

was just such a fundamental violation

44:12

of the principle of separation of powers.

44:16

It really denuded the courts and they had no power.

44:18

It gave the executive branch

44:23

the ability to manipulate the constitution,

44:26

simply by choosing where to hold people,

44:29

they could deprive the courts

44:31

of any ability to review their actions.

44:33

I thought that was offensive.

44:35

I thought it was also a offensive

44:37

because it gave so they could do anything.

44:40

They could do anything to these people anywhere, wherever

44:42

the government had staked out itself.

44:45

So I thought there had to be a way

44:48

to articulate these principles.

44:50

I also thought, and we came to a lucky break,

44:53

I'll tell you, I probably told you all about it before

44:57

but the idea that you have this place Guantanamo

45:00

outside U.S jurisdiction and law,

45:05

I mean, the government had chosen Guantanamo

45:08

precisely because they controlled it,

45:10

but they didn't have sovereignty over it.

45:13

And I had a great intellectual breakthrough,

45:16

actually just before we wrote the petition for certiorari

45:20

60 Minutes too did interview me.

45:24

We had not been allowed down to Guantanamo.

45:27

So I didn't know anything about it,

45:30

but the producer for 60 Minutes too,

45:32

in-between interviewing me,

45:34

he told me a story he had been down there.

45:36

And and he said the darn thing about it is

45:38

it's so funny.

45:40

Iguanas if they're not in Guantanamo

45:44

get eaten by the Cubans,

45:46

but in Guantanamo you can't talk to them

45:47

because they're protected by U.S law.

45:49

And I said, excuse me.

45:52

I said, shit, what could be a better example

45:53

of U.S laws applying U.S laws,

45:58

protect the gandamn iguanas down there

46:00

and the government says that there's no protection

46:03

for human beings down there.

46:05

And it was a little point

46:07

but it's not a legal point so much,

46:09

but it is it shows the absurdity of the position.

46:12

So we did put that in.

46:15

And I think that had some impact, as I told you

46:17

justice Souter during argument.

46:22

He said, "When the government said,

46:24

there are U.S laws don't apply,"

46:26

and Souter "What are you talking about?

46:27

"Even the iguanas are protected."

46:29

So it sort of put it in context.

46:30

So that was a way.

46:32

There's also, I encourage people,

46:35

the case that the government relied on primarily

46:38

was the Eisentrager case which people can read about,

46:42

but it was written by justice Robert Jackson.

46:47

And it's a confusing opinion

46:50

and I think the government far over read it.

46:51

But Jackson had a case four or five years later

46:54

when he wrote dissent and the dissent wasn't,

46:59

but he talked about a guy being held in Ellis Island

47:02

who was not allowed back in the country

47:06

because he was accused of communism.

47:08

He didn't have a being a communist

47:10

and he didn't get to have a hearing.

47:13

And Jackson wrote, I encourage everyone to read it.

47:15

It's an opinion about how you can not like the hysteria

47:19

of the moment dictate your values.

47:23

You need to stick to your values.

47:26

I can't even repeat his language,

47:28

but it's so wonderful.

47:30

And he points out that

47:32

you don't deny people hearing because of this.

47:33

I mean, we are not that far gone.

47:36

He said, and this is what people did in Nazi, Germany.

47:38

He said the danger of communism is only outweighed

47:43

by the danger of abandoning our principles.

47:46

So I put that in too and we got cert.

47:49

But also the other part of the strategy

47:54

was getting Amicus briefs.

47:57

So I think it was helpful.

47:59

I mean, we sat there together

48:01

and we did a lot of work in getting amicus briefs.

48:02

And I understand you'll talk to Kristine,

48:05

she did a fabulous job with one brief in a particular

48:08

but we got these ex JAG people come in and say,

48:12

"This is wrong, we can't do it."

48:16

We got Korematsu, who's the symbolism of the World War II.

48:17

How we screw that up saying this is wrong, we can't do it.

48:24

And there was another theme to the very conscious theme

48:27

to the petition for cert,

48:31

which was these justices go around the world

48:32

on their vacation.

48:37

And they're subject to

48:38

comments from other countries justices.

48:43

And so a real theme of the brief was,

48:46

if we adopt this view that we can hold people

48:49

in off shore prisons, foreigners and offshore prisons,

48:53

without giving them a hearing.

48:56

We are an outlier among the community of civilized nations.

48:58

The United States is an absolute outlier.

49:01

So that was another strong theme in it

49:03

which I think who knows certainly?

49:06

Interviewer

So you were looking

49:09

at the bigger picture in your cert briefs.

49:09

-

Yeah, we cited almost no cases in our cert brief.

49:12

It was just, we didn't make a illegal or it was

49:16

what does this mean?

49:20

What the government is saying here it can do?

49:21

Interviewer

And were you therefore surprised

49:24

when they granted cert?

49:26

-

Oh, I thought they would grant cert.

49:28

I mean, although I said to the clients,

49:30

I thought that maybe it was a 25% chance,

49:34

I think Arnold and Porter had said none.

49:36

Who knows?

49:38

I just thought it was so right.

49:39

It was so right, that, I mean, it's cert argument

49:42

in a place where the laws government

49:45

govern the iguanas and they don't cover the people,

49:49

that you could take people.

49:51

I mean, as I said in it.

49:52

They could as easily have taken a Canadian citizen

49:54

off the streets of Toronto and thrown them in a Guantanamo

49:57

in peace times of war.

50:00

That's what they were saying,

50:03

they could do it at any time, they could act above the law

50:04

with respect to foreigners

50:07

so long as they keep them outside sovereign territory.

50:08

They can negotiate the leases in some countries,

50:11

they will control it, but you keep sovereignty

50:14

so we can make an, an off shore.

50:16

It was so offensive to us principles.

50:17

So I thought we'd get it.

50:21

Interviewer

And when the decision was reached

50:23

in in June of '04 and it came out favorable,

50:27

did times change for you?

50:31

-

I thought emotionally,

50:34

I felt great, I thought it was over.

50:39

I thought at that point that the people would have hearings

50:42

and they'd have the hearings,

50:47

right, I just thought it would be over.

50:51

It changed emotionally in a number of ways too

50:53

because then the government of course took the position.

50:55

I mean, absurd positions.

50:58

Well, I say absurd.

51:00

They argued which again was a no lawyers falling into boxes.

51:03

They argue well you may have the right to go to court,

51:08

but since you have no rights,

51:12

substantive rights, constitutional rights,

51:14

if you go to court you can't get anything,

51:16

which was a misunderstanding of everything,

51:18

including habeas corpus.

51:20

But they argued that, we were in another fight.

51:22

It changed emotionally for me and

51:27

for the first time then we got to go down

51:30

to see our clients in Guantanamo.

51:33

And we had to fight for that

51:35

because the first thing that government said

51:37

and was more for my clients, it was really for me, I think

51:38

but they said, okay, they have the right to go to court

51:41

but because they have no rights,

51:50

they have no right to a lawyer.

51:51

So if you go to Guantanamo,

51:53

it's on we're allowing you to go,

51:55

it's not a matter of right

51:57

and you've got to agree to our conditions.

51:58

One of the conditions of which is

52:00

we need to be able to eavesdrop on all your conversations.

52:02

So we said no way.

52:05

It was interesting.

52:07

Some of the horrors at that time,

52:08

Joe Margulies said, well I don't care, I'm just gonna go.

52:09

And I said, no.

52:12

So we fought that and we won that.

52:14

Judge Kollar-Kotelly, he ruled for us,

52:16

we have the right to privilege conversations.

52:18

So then we went down, actually Kristine Huskey

52:21

and Neil Koslowe went first and December, 2004,

52:25

the first time we got to go.

52:30

And then I went in January, I couldn't go,

52:31

I was on vacation in December.

52:33

But that was a whole nother emotional thing.

52:35

Because up until that time,

52:38

as I said, we were fighting for American principles,

52:40

so the right to a fair hearing,

52:42

now we actually had individuals

52:43

who we had the obligation to defend individually

52:46

and also establish emotional relationships with.

52:51

The other thing that happened, frankly, is

52:54

after we won, then raft the cases were filed.

52:57

And it's only the only real disagreement,

53:05

Michael Ratner and I ever had,

53:07

it was sort of a strategic one.

53:09

I felt we were moving well with Kollar-Kotelly.

53:12

If we could hold off filing cases,

53:15

we start establishing the law.

53:18

Michael felt and I think it was inevitable anyway

53:21

that we should just have as many cases we can

53:23

to overwhelm the government.

53:26

I said, overwhelm them, it's gonna scare them

53:27

and they're gonna ask for things and stop.

53:30

But anyway, people are gonna file cases.

53:33

So lots of cases came in

53:34

and the government, so they were filed found in that.

53:37

And we now had to deal with a lot of other people,

53:42

it wasn't just us making decisions.

53:45

Before that C.C.R would file their briefs,

53:47

we'd file our briefs, we didn't need to have a united brief,

53:50

we always got along well.

53:53

After that, it became a whole system

53:55

of needing to deal with a lot of lawyers and have consensus.

53:58

I'm not good at consensus.

54:02

Interviewer

So when you went off on your own

54:05

how was it the first time you came to Guantanamo,

54:07

what did you expect, what did you see in Guantanamo?

54:09

-

Well, a very emotional experience,

54:12

because as I say I had been representing these behind

54:14

when in January, 2005 for the first time.

54:19

So I'd been representing these people for almost three years

54:22

without ever having met them.

54:25

And I didn't know what to expect

54:27

other than what I had read through the files.

54:29

No, not fair because Neil and Kristine had gone down

54:33

for a very short trip in December

54:36

and just sort of met them very quickly.

54:38

But, the whole experience of going to Guantanamo

54:41

is tough in and of itself because it takes all day.

54:47

You go to Fort Lauderdale,

54:52

then you get on a little tiny little plane with,

54:53

it was like climbing over other people to get in this plane

54:58

that takes over three hours at that time

55:01

in Air Sunshine never forget it.

55:04

And I was intimidated

55:06

because I know there are no bathrooms on it

55:08

and I'm old enough to know

55:10

this is a very tough thing for me.

55:11

So you get there

55:13

and then you're putting these officer's quarters

55:14

in your truck, the next day to the prison.

55:16

The prison has this

55:21

all these wire fences around it with green mesh,

55:24

with razor wire on top of it in your March 10

55:27

and you'd go into a hut,

55:30

you meet a guy you don't know

55:32

what the guy's gonna think of you

55:33

and you don't know what he's like, really?

55:35

And you go into this little room with this cell next to it.

55:37

And he's sitting behind a table,

55:44

chain to the forest foot chain to the floor.

55:46

One or two of them also had their hands chain

55:48

'cause they were supposed to be routing.

55:51

And it was just an emotional not meeting these guys.

55:55

And each one of them was like,

56:00

each one of them was very nice.

56:07

When I say nice and respectful talking-

56:10

Interviewer

You had translator or?

56:14

-

Yes, had a translator,

56:15

had two translators at the time because we had 12 clients.

56:17

It was very hectic.

56:20

I mean there were all sorts of absurd things.

56:21

The Comcast nature of it.

56:25

When we first went there,

56:28

we only were allowed to use their names

56:31

because they have identification numbers,

56:34

but the identification numbers are considered classified

56:38

so we weren't allowed to take

56:40

the identification numbers down and use them.

56:42

So we'd go down and I'd like to see Fouzi Al-Odah.

56:47

Well the guards were here and we'll say,

56:51

what's his identification numbers

56:52

and when we are not allowed to take an Italian.

56:53

They said, well, we don't know him by this.

56:55

So there was this Comcast thing and would take

56:56

an hour and a half to find the guy

56:58

but you'd go in and,

57:00

initially our feeling was that

57:05

we were preparing for hearings.

57:09

We wanted to find the facts from each of them.

57:12

So we could prepare for a hearing, which would say

57:15

whether it was a reasonable cause to hold them.

57:17

The as you know, the hearings got put off

57:22

and off and off as the government challenged them

57:26

and the congress then revoked the right to habeas corpus

57:28

and the meetings became more handholding,

57:31

you can understand until we saw these people

57:38

for three years, they had seen no one who was on their side.

57:41

Everyone they saw and certainly every American

57:46

was there to interrogate them,

57:50

to try to find something against them or do something.

57:52

So we were the first people on their side.

57:54

Interviewer

But they know you were this side ,

57:57

how did they believe you?

57:58

-

One of the issues we had

58:01

and I think this goes to one of the reasons

58:02

that our relationship with the Kuwaitis

58:07

probably became a little bit strained and ended.

58:09

We saw this as a real problem.

58:15

How would these people believe this?

58:17

And we wanted Khaliz, no, Abdul Rahman Al-Haroun,

58:21

the Kuwaiti lawyer to come with us.

58:25

So he could assure them that we were lawyers on their side.

58:28

We tried that and William Brown insisted on it.

58:32

He has to go with you.

58:36

And the government said, no.

58:38

He said, we are restricting this to American words,

58:41

we'd won the case, you know, excuse me.

58:44

We went to Judge Kollar-Kotelly

58:47

at the same time we were trying to get the right,

58:49

to see the people

58:50

with unmonitored on eavesdropped conversations.

58:52

We said, we'd like Abdul Rahman Al-Haroun to come with us.

58:55

The government objected that, that strongly.

58:59

She said, no.

59:01

She said, I have no right as a legal matter

59:03

to tell the government

59:07

who they issued security clearances to

59:07

other than lawyers within the us.

59:09

And if they say you don't do it to foreign lawyers,

59:11

I can't overturn that.

59:13

William Brown was furious about that.

59:17

He said, you got to appeal this all the way up.

59:19

And I said, we've got more important things

59:20

we gotta get down there, I don't wanna do it.

59:22

I think Abdul Rahman probably saw that as a betrayal to him,

59:24

but we were not gonna win that, we're not gonna win that.

59:30

So what we did, we had the court allow us

59:33

to take videotapes of the family to show them

59:36

to say that these are lawyers who were on your side.

59:40

And that's what we did.

59:43

Interviewer

And they believed you?

59:46

-

They did.

59:47

Some of them didn't want to agree with their parents

59:48

because they had come to hate, not hate,

59:51

to distrust the Americans.

59:55

But no, yeah they basically did.

59:57

The amazing thing about showing the films.

59:59

The films were to show them they could trust the lawyers

1:00:02

but these people hadn't seen their families for three years.

1:00:05

Several of them saw their family

1:00:08

they just wanted to watch it again and again, a lot crying.

1:00:11

They, you know, it was terrible,

1:00:14

terribly emotional moment with some of them.

1:00:16

One guy who was clearly innocent and is clearly innocent,

1:00:23

a volleyball player

1:00:28

had not seen his daughter.

1:00:33

She was born after he went away,

1:00:35

so they're very emotional.

1:00:38

Interviewer

Over time, Tom you kind of mentioned,

1:00:41

I want to go back to this point

1:00:44

but before I forget all the time,

1:00:45

you said the men became less willing to talk to you,

1:00:46

is it because they were frustrated, they saw that--

1:00:52

-

Well, no, it was some, no,

1:00:55

it's some, one of the talk all the time.

1:00:56

There were what happened,

1:01:01

a frustration for me as part of this,

1:01:08

this is my own emotional make up,

1:01:10

is that the U.S legal system wasn't working,

1:01:13

it wasn't giving them a fair hearing.

1:01:18

So although we were down there,

1:01:21

although we had one before the Supreme court,

1:01:23

we were down there and it just went on, it went on.

1:01:25

So we became almost an excuse.

1:01:32

Nothing was happening

1:01:37

and I think they became frustrated and disappointed.

1:01:38

Some of them understood,

1:01:42

Some of them understood better than we did

1:01:45

because I never forget a very wise guy down there said,

1:01:47

look, it's going to be decided politically.

1:01:50

He said, and he finally said at the end,

1:01:54

why this is interesting, he said the U.S legal system.

1:01:58

I hate to tell you this time, but it's a joke.

1:02:02

And that was hurtful to me

1:02:04

because it was, it wasn't working.

1:02:07

At the end of the day, this guy Fayez Al Kandari,

1:02:09

who is still down there,

1:02:14

two of the Kuwaitis are still down there,

1:02:15

he and Fouzi Al Odah.

1:02:19

We were dismissed by the Kuwaiti families,

1:02:22

in I don't know, let's see.

1:02:27

Before Boumediene, 2006, 2007, I can't remember.

1:02:29

And then we I continued on sort of as lead counsel

1:02:38

for the other people.

1:02:41

But I had to go down, I insist on going down

1:02:44

in sort of supporting the decision

1:02:48

to transfer the case for these guys,

1:02:50

because I didn't want them fighting.

1:02:52

And I remember going to Fayez.

1:02:54

And Fayez saying, "Look, Tom,

1:02:57

"this is a stupid terrible decision by these guys

1:03:00

"who don't know in Kuwait, I don't know what's behind it."

1:03:03

He said, "You're a great guy and I want to stay with you."

1:03:06

And I said, don't.

1:03:10

But he said you want to know something?

1:03:11

At the end of the day, I'm doing this from my parents

1:03:16

because it's really doesn't matter anyway.

1:03:19

You're not gonna...

1:03:22

No, apparently fine is it saying,

1:03:23

God, I wish you were there, I'd be out.

1:03:25

But he said, the legal system doesn't matter here,

1:03:26

you're playing in a charade.

1:03:31

And I thought, oh God, you know what a way.

1:03:33

And I felt that it was so disappointing.

1:03:35

I know I'm just stowing on.

1:03:40

Interviewer

I think that's true.

1:03:42

I think a lot of people felt that what that would,

1:03:43

I mean, hey you've been a lawyer for 30 plus years

1:03:45

and all of a sudden you're told that it's not working,

1:03:48

what was going on?

1:03:51

-

Oh, it was terribly frustrating.

1:03:52

And I came to me,

1:03:58

we won Rasul then the government argued

1:04:01

that, okay as I said,

1:04:05

they said, well, you may have the right to go to court,

1:04:06

but you have no rights if you go to court.

1:04:08

And there's a view on, they said, habeas corpus

1:04:10

in order to get relief under the habeas statute,

1:04:14

you need to show a violation of the constitution,

1:04:16

which is fundamentally wrong, I think.

1:04:19

But it's what habeas has meant since the Civil War.

1:04:21

Black people in the Southern States or places you show

1:04:26

that you've been convicted in violation of the constitution.

1:04:30

Habeas originally of course meant something else.

1:04:33

You got thrown into the Tower of London

1:04:35

and the government is used to say, why,

1:04:37

you should give some reason

1:04:38

that's what this habeas was about.

1:04:40

But it's funny, none of the lawyers seem to get that too.

1:04:42

I don't know whether we talked about this before

1:04:47

but anyway, I kept making their argument.

1:04:48

I said, well, they do have constitutional rights,

1:04:53

but beyond that, it doesn't matter,

1:04:55

because they have the right to habeas,

1:04:57

which pre preceded the adoption of the constitution

1:04:59

was fundamental under the common law

1:05:02

to have the government justify

1:05:04

the legality of the detention.

1:05:06

I said, and we in an argument,

1:05:08

I don't know whether I've told you about this.

1:05:11

Even the people on our side,

1:05:17

all the lawyers I'm dealing with

1:05:19

including all the Wilmer people,

1:05:21

none of them agreed with me on that argument.

1:05:24

I mean, I'm not being silly, but it was amazing.

1:05:27

There's a famous, constitutional law professor,

1:05:31

when I made the argument in the brief saying,

1:05:34

look you don't need constitutional rights

1:05:37

to get habeas relief.

1:05:39

There are two provisions in the constitution.

1:05:41

The first one adopted in 1789,

1:05:43

says anyone in custody and our color authority

1:05:47

in the United States has a right to habeas.

1:05:50

Then the second one adopted 1867 said,

1:05:52

you can apply for habeas if you're held in violation

1:05:55

of the constitution laws, decrees of the United States

1:05:58

there are separate.

1:06:00

Famous constitutional, our professors say,

1:06:02

this is crazy you can't get habeas

1:06:04

without constitutional relief, I mean, this is amazing.

1:06:05

So we had an argument in September, 2006, I think

1:06:08

before the same DC Circuit,

1:06:14

all conservative judges or no one.

1:06:17

Judy Rogers was on the panel,

1:06:18

Ray Randolph again and Sentelle.

1:06:22

What's Sentelle's first name?

1:06:27

Now, chief judge, very conservative Randolph and Sentelle.

1:06:28

And they took the position,

1:06:32

you know, what are you saying you can't do it?

1:06:34

I said, well, let me give you an example.

1:06:36

I gave actually two examples.

1:06:39

I said, let's say we're in a war with Japan

1:06:40

a congress passes a law and says, anyone of Japanese descent

1:06:43

can be held in prison?

1:06:48

I said, somebody can go in and they can say that violates

1:06:50

the equal protection clause of the constitution.

1:06:54

And you may say in the court, well, no, it doesn't.

1:06:57

That's what the Supreme court said

1:07:00

but let's say another guy comes in.

1:07:01

Let's say, he says, "Hey, I'm challenging this."

1:07:02

He said, my name's not Hara

1:07:05

it's O'Hara you've made a mistake,

1:07:08

you've made a factual mistake, I need a court review.

1:07:09

So that's what habeas is about.

1:07:12

And Randolph's Sentelle's jaws dropped.

1:07:14

I mean, you can ask people that it just changed it.

1:07:18

They said I got it and the government came on

1:07:21

they said, well, can somebody review if he's there,

1:07:24

is the question, whether it's a shepherd or a terrorist,

1:07:27

isn't that a factual question?

1:07:29

However you define it, we had won the case.

1:07:31

I mean, this is people don't know this.

1:07:33

This is the May, that was in September of 2006-7.

1:07:35

Well, two things, I went down

1:07:40

and everyone who was in the courtroom said we won,

1:07:43

I mean, in the courtroom, right everyone was there.

1:07:45

And I went down, I think the week after that

1:07:48

to see my clients were in Guantanamo,

1:07:51

Neil and I and I'm not sure if Kristine was on a trip,

1:07:55

but we all said "We're gonna get hearing soon,"

1:07:58

when we thought we'd won that.

1:08:00

What we didn't know is the government

1:08:02

went into congress at that time,

1:08:05

they knew they were gonna lose the case at that point.

1:08:07

And they got Lindsey Graham to introduce an amendment,

1:08:09

revoking habeas corpus.

1:08:13

That's what led to it.

1:08:15

So that argument was in September,

1:08:17

and October, November Lindsey Graham went on the four

1:08:19

and attached the revocation of habeas

1:08:22

to a right or the defense appropriations bill

1:08:25

which nobody would stand up to

1:08:28

at least now it's another thing.

1:08:29

And habeas was revoked.

1:08:31

And here, we went back to the guy and say,

1:08:33

well, now you don't it starts all over again

1:08:35

and was just amazing.

1:08:38

So the frustration of the system was everything we did.

1:08:39

Then we were in congress dealing with it, very frustrating.

1:08:44

It was so frustrating.

1:08:49

And I said, you know, and I'm talking about.

1:08:50

And part of the frustration at that time

1:08:53

we were getting lots of lawyers.

1:08:56

So risa become a chic thing within the legal community.

1:08:58

But then I needed to deal was 30 or 40 law firms.

1:09:02

So everything we had to do then you couldn't just do,

1:09:07

you needed to start trying to convince people

1:09:11

to get consensus, it was amazing, very tough.

1:09:13

Interviewer

And just really briefly

1:09:18

so the attitude of some of the men down in Guantanamo

1:09:20

if not giving up, at least they just felt this is a charade?

1:09:24

-

Well, I, you know, yeah.

1:09:27

I think they almost all felt after that happened.

1:09:30

After congress revoke habeas, they thought it was a charade.

1:09:36

Their emotional reaction

1:09:41

to the whole thing became different.

1:09:43

I'd say when we were first down there

1:09:44

all 12 seemed very interested,

1:09:47

then they sort of broke down emotionally,

1:09:51

I always fainted the three groups,

1:09:54

some who remained interest in an intellectually engaged

1:09:55

even though they thought it was a charade.

1:10:00

And this guy Fayez Al Kandari told me too,

1:10:04

he became almost stronger when he was down there.

1:10:11

He said that when he first came down

1:10:13

he was furious and steam was coming out of his head.

1:10:15

But then he realized that the angrier he got

1:10:19

the more they were in control.

1:10:22

So he said, and he said to me,

1:10:25

"This has been the worst experience in my life."

1:10:27

And he had told me about torture earlier, but he said

1:10:32

"But in other ways, it's the greatest experience."

1:10:35

He said, "If I ever get out of here,"

1:10:37

he said, "I'm so much a stronger person,

1:10:39

"I'm so much more in control of myself.

1:10:42

"And I can allow myself to be in charge

1:10:44

"rather than those people."

1:10:48

So, he was the one extreme who was sort of bore it.

1:10:49

Now I haven't seen him in three or four years.

1:10:53

Then were there were a group of guys

1:10:57

who became so depressed.

1:10:59

Then when we'd go in there,

1:11:02

they just had gone into a deep depression.

1:11:06

One of them this volleyball player

1:11:08

who had been right and lovely at the end,

1:11:11

he'd gone on a hunger strike,

1:11:19

he just been a broken, horrible guy,

1:11:20

Kristine had a special sort of relationship with him

1:11:27

you should ask her.

1:11:29

And then there were two or three who became so angry

1:11:31

by the end and angry at everything

1:11:35

that they you couldn't talk to them.

1:11:37

Interviewer

And what was your mood

1:11:43

as you saw this going on?

1:11:44

-

I felt frustrated, I felt our role changed.

1:11:46

We were no longer preparing for a hearing

1:11:51

because there was no hearing and we had gone in though.

1:11:53

We were there to give them some human contact on their side,

1:11:57

they weren't allowed to see

1:12:00

or speak to their parents or anyone else.

1:12:01

So we were the only outsiders.

1:12:03

There was also legal issues about their treatment

1:12:05

particularly my Kuwaitis are the guys

1:12:10

who started the first big hunger strike.

1:12:14

And, a guy Al-Shammari and Al ODA were sort of the leaders.

1:12:17

They just wouldn't eat, I mean never the first people on it.

1:12:22

And we wanted to protect them too.

1:12:26

They were on forced feeding tubes Fouzi Al Odah

1:12:29

had got into 90 pounds, Al-Shammari was bleeding.

1:12:33

So we were trying to do things there with the court too

1:12:37

and the government was such bastards about it,

1:12:40

such bastards.

1:12:43

I mean, you know, they first state denied, they lied to us.

1:12:44

Oh, these guys aren't on hunger strike

1:12:47

then we didn't went down and saw them,

1:12:49

they were on a hunger strike, then everything they did

1:12:50

they denied their medical records, it was horrible.

1:12:52

So we were in that sort of fight.

1:12:55

Interviewer

Could you describe a little bit about

1:13:00

the hunger strikes or I mean

1:13:01

and you said you wanted to get medical records?

1:13:03

-

Yeah, we got news actually, it was in-between.

1:13:06

There had been a hunger strike.

1:13:14

And I'm losing track of the years.

1:13:16

But it was about 2006 or '7

1:13:21

I believe it was after congress revoked habeas corpus.

1:13:26

There was a big hunger strike that started.

1:13:32

And it was really the first two guys aren't in,

1:13:34

a Abdulaziz al-Shammari who was one of clients

1:13:37

and Fouzi Al Odah.

1:13:40

And it spread throughout the camp,

1:13:43

they wanted everybody to go on hunger strike

1:13:44

and they just wouldn't eat.

1:13:46

And I mean, terrible thing.

1:13:51

We went down, we had heard that one of them was on it

1:13:54

and we tried to get permission for an emergency trip

1:14:00

to see how they were and the government said,

1:14:02

"Well these guys aren't on it, that's a lie."

1:14:04

And we went down and many more were on it.

1:14:08

And I never forget, I saw Fouzi,

1:14:12

Al-Shammari who's out, he was got out,

1:14:15

one of the earlier Kuwaitis to get out,

1:14:20

was always more mercurial.

1:14:26

Sometimes you'd see us sometimes he wouldn't,

1:14:27

he was always complaining to the guards.

1:14:29

I mean, you know, he was a good guy, tough guy,

1:14:31

not always as rational as Fouzi.

1:14:33

But Fouzi was there.

1:14:36

Fouzi is a fairly small guy.

1:14:38

I'd say he wait, I knew it.

1:14:41

He weighed something like 144, 148 pounds when he went in.

1:14:43

And we saw him and he was turning 92 pounds

1:14:47

he had to tube up his nose.

1:14:50

And as we were talking blood drip from the tube

1:14:53

and he had actually taken from the hospital

1:14:59

some of his medical records,

1:15:07

he knowing which we took back and tried to get into court.

1:15:10

We wanted a monitor, we wanted a doctor there.

1:15:12

I mean, he was telling stories

1:15:15

that they were getting lousy treatment and we didn't know

1:15:16

we were afraid he was gonna die and he wanted to die.

1:15:19

It is a very interesting thing.

1:15:24

It made me so sad at the time.

1:15:26

His father had said,

1:15:33

you gotta get 'em off of the hunger strike,

1:15:34

you got to get them off this hunger strike.

1:15:36

He says, "Look, I love my father,

1:15:38

"but I'm doing this not for myself,

1:15:39

"I'm doing it for everyone."

1:15:42

And he said something,

1:15:46

I want to die, I want you to allow me to die.

1:15:48

And it put us sort of in a conflict

1:15:51

'cause they're representing both him and his father.

1:15:53

And I remember, I cried.

1:15:55

Seeing him I said, oh, Fouzi don't do this.

1:15:57

Interviewer

What did he think dying would do?

1:16:02

-

He said, look, he said,

1:16:05

the thing that got me dismissed

1:16:08

was I gave an interview with BBC

1:16:11

where I really reported what Fouzi said,

1:16:14

I can't remember it all now, but Fouzi basically had said,

1:16:16

I don't wanna die,

1:16:23

but if I can do anything to help my fellows

1:16:24

to get some fairness then it's worthwhile

1:16:29

because I really don't wanna live this way

1:16:32

forever in a box without a chance.

1:16:34

The horrible thing that happened to Fouzi

1:16:39

now Al-Shamari during that time was taken on a stretcher.

1:16:40

We were allowed to see him, he was taken in on a stretcher.

1:16:45

He was so thin.

1:16:48

-

You saw him only the stretcher?

1:16:49

-

No, we saw the gurney outside, he came in on a gurney.

1:16:50

We saw the thing, I said, we didn't see it

1:16:53

he was sitting there but then he said,

1:16:55

"I had been taken in, on a gurney, on this."

1:16:56

Then I saw this other guy out this,

1:17:02

Abdul Al Kandari was a cousin of Fayez,

1:17:05

who was a volleyball player who was just destroyed.

1:17:13

He was like a man who had gone from a terrific,

1:17:17

vibrant physical guy

1:17:21

into a guy who couldn't even talk his sin and hungered

1:17:23

and just emotionally wasted.

1:17:27

Oh and he dictated his will,

1:17:30

this is an amazing thing to me

1:17:33

and I think Kristine was with me at the time.

1:17:35

And then the government, when we finally got it out

1:17:39

wouldn't let it be, send it to his family.

1:17:41

But he was just right it was a terrible, terrible time

1:17:44

and it just showed me the frustration I had

1:17:49

and being impotent in being able to help them,

1:17:52

that's terrible.

1:17:55

The worst thing was the next time,

1:17:57

because although Fouzi was 90 pounds or something

1:18:00

he was in control of himself emotionally and intellectually.

1:18:05

He knew what he wanted to do.

1:18:10

Put us in a terrible position, made me terribly sad

1:18:12

but he was in charge.

1:18:14

Next time, weight went down,

1:18:16

they had broken the hunger strike

1:18:18

and you known how they broke it.

1:18:19

They brought in these chairs

1:18:22

and they strap people down to it.

1:18:24

And they basically said,

1:18:26

if you don't eat, we're gonna put you in this,

1:18:30

we're gonna force, feed you in a very painful way

1:18:32

and shoving tubes in and out.

1:18:34

I mean, they finally admitted this, they did this.

1:18:36

And Fouzi said, well I came here to do this,

1:18:41

I didn't come here to be tortured anymore.

1:18:44

And so he began eating again.

1:18:46

And the fact that they had broken him the next time

1:18:49

sort of broke him,

1:18:54

because he had sort of been in control when he was on it.

1:18:55

When they took away, even as ability not to eat,

1:18:59

it devastated the next time and it was very, very sad.

1:19:03

Interviewer

And use of the word broken tongue.

1:19:09

what does that mean?

1:19:11

-

He was emotionally broken.

1:19:13

He didn't seem, the strength that was in him

1:19:17

and there was a tremendous amount of strength

1:19:20

to make decisions, say what was right or wrong to him.

1:19:23

I mean, he was a guy as Fayez Al Kandari too

1:19:26

who would complain to the guards

1:19:29

if anyone was mistreated, they were people.

1:19:31

I think that's why they're still in there

1:19:33

'cause they were people who others came to complain.

1:19:36

They were not troublemakers

1:19:41

but there's sort of the moral righteousness in the camp.

1:19:43

I mean, Fouzi, he was quite outspoken to the guards.

1:19:47

"You can't do this, this is wrong."

1:19:53

Those sorts of things.

1:19:55

-

He was a leader?

1:19:56

-

He was a leader.

Interviewer

And then you think

1:19:59

they went after the leaders?

1:20:00

-

I think in the end

1:20:01

when they assess who they're gonna let out

1:20:02

I think that Fouzi and Fayez who we're leaders.

1:20:04

I mean, you know what?

1:20:10

You'd see in their report,

1:20:11

I'm gonna tell you funny stories about it too.

1:20:14

But you see in a report, they read people in prayer.

1:20:16

It's one of the reports, again.

1:20:20

Fayez, when I first met Fayez down there,

1:20:21

I mean, he's a very funny guy, funny, very bright.

1:20:25

I said, well Fayez what did they ask you about

1:20:30

during interrogation?

1:20:32

This is not privileged anymore so I can say it.

1:20:33

He said, well, for instance, they asked me

1:20:36

do you hate Osama bin Laden?

1:20:40

I never forget this conversation.

1:20:42

And he said, he's a very philosophical guy, very bright.

1:20:44

He says, "Do I hate him?"

1:20:48

He said "I disagree with him."

1:20:50

He said "I think what he has done is a perversion of Islam."

1:20:52

He said, "You do not kill innocent people,

1:20:56

"anyone who reads the Koran knows that."

1:20:57

He said, "But do I hate him?

1:21:00

"He's never done anything to me."

1:21:02

And he said, "George Bush on the other hand,"

1:21:03

he said "him I hate."

1:21:06

I said, I don't think that's a wise thing.

1:21:07

Well, in his thing, in his dossier,

1:21:11

it says why he's has expressed hatred toward George Bush.

1:21:14

I said I could be in, but

1:21:17

I mean, it's funny, but this is true,

1:21:19

this is why they keep people.

1:21:21

What did he he's told another story too,

1:21:23

He's ever said, "The most devastating thing for these guys,

1:21:26

"each of them had been beaten up or tortured

1:21:30

"when they were initially captured

1:21:35

'and taken to Bagram or Khandahar,"

1:21:36

not so much in Guantanamo.

1:21:40

One or two of them had been badly treated,

1:21:42

but not so much physically

1:21:45

there had been some psychological abuse

1:21:47

or some taunting by women.

1:21:51

As I've told you before,

1:21:55

say your lawyers are Jews, don't trust lawyers,

1:21:57

sort of psychological stuff with them.

1:21:59

But Fayez said to me,

1:22:04

well, this relates to the Jewish thing.

1:22:11

He early on said

1:22:16

I don't want to talk about the physical abuse any more.

1:22:17

He said, you know, it's just boring,

1:22:20

I don't want to remember it.

1:22:22

He said, but the worst thing is being here

1:22:23

trying to get a hearing the fact

1:22:26

that we can't get a hearing

1:22:27

and then later on, it was Al-Shammari

1:22:28

but he was the first one who told me.

1:22:30

He said, "Tom, do you mind me asking what religion are you?"

1:22:32

And I said, "Fayez, I'm Jewish."

1:22:35

And he said, "oh," he said, interrogators told me that

1:22:38

they said, don't cross your lawyer because he's a Jew.

1:22:41

And he said, and you know how Jews are not good to Muslims?

1:22:44

And I said, well, what did you say to them?

1:22:47

Oh, I think I first said, what does it bother you?

1:22:50

Oh, no, not at all.

1:22:53

He said, I know it doesn't matter to me.

1:22:53

He said, it depends on what kind of person you are.

1:22:56

I said, what did you say to them?

1:22:57

He said, I looked at him, I said,

1:22:59

there are good people and bad people in every religion.

1:23:00

I was very cute.

1:23:04

But he said to me,

1:23:05

oh so then I reported that to the New York Times.

1:23:08

And it was just a little squib somewhere

1:23:12

that Nick Lewis who was in a writer for the Times

1:23:14

put in somewhere.

1:23:16

There's so much bad about Guantanamo

1:23:18

who the hell cared about that.

1:23:20

But next time I was down there, Fayez said

1:23:21

you said something to the press about this, didn't you?

1:23:24

And I said, well, yes I did.

1:23:29

And he said, I knew what

1:23:31

because my interrogator came in there and she said

1:23:32

how dare you tell them about that?

1:23:34

And he said, you know, he said I can ,

1:23:37

she sorta threatened them, I don't know what she said.

1:23:41

It was a woman interrogator.

1:23:42

Oh, what the hell is her name?

1:23:45

Hers were court name.

1:23:47

And he said to her,

1:23:48

look what are you gonna do to me, beat me up?

1:23:50

He said, beat me up all you want,

1:23:53

I just give me a hearing.

1:23:55

I mean, we really showed what mattered to them,

1:23:57

he said, give me a fair hearing.

1:24:00

No, but so it is a great context.

1:24:01

He was very strong.

1:24:04

If I tell you the first thing he sent them

1:24:05

to this was Neil and Kristine had been down in December

1:24:07

but they had just basically explained to everybody

1:24:12

what was going on,

1:24:15

they didn't really have time for a conversation.

1:24:16

So I went in and I saw Fayez,

1:24:18

and Fayez really was funny

1:24:19

because he said I have one question.

1:24:23

I said, well, let me finish talking about this first.

1:24:26

So I finished talking about it.

1:24:28

I said, okay, I said so Fayez what is your question?

1:24:29

Now this was in January, 2005.

1:24:32

He says, is it true that the American people

1:24:35

reelected George Bush,

1:24:38

don't they know what's happening down here?

1:24:39

That was his question, it was an amazing thing to me.

1:24:41

And he said, you know, I've studied about America.

1:24:45

I haven't, he said, but this is not America.

1:24:47

So that was interesting.

1:24:51

-

We almost have it,

1:24:53

-

We have 17 more minutes.

Interviewer

Okay, can I go back to the medical records

1:24:58

that you said you could take some ads

1:25:00

would they revealing or were you-

1:25:03

-

And we were not allowed to Fouzi had taken it out.

1:25:04

We took it with us.

1:25:10

No, everything we got we had to give back to the government

1:25:15

but we put it in our notes and it was sent back out to us.

1:25:18

Interviewer

Where they revealing those medical records?

1:25:23

-

They were very revealing because it showed,

1:25:25

he had gone from 148 pounds to 92 pounds.

1:25:26

It also showed, and I'm not a doctor, so I can't remember.

1:25:32

There were also other tests which doctors here

1:25:36

and including this Steve's Tanaka,

1:25:39

who we use was a general said,

1:25:42

showed that there were dangerous things

1:25:44

about his blood levels and all these things,

1:25:47

very dangerous things were happening to them.

1:25:51

So we made the argument in court,

1:25:53

it's on the public record now

1:25:54

that he needed medical attention

1:25:56

and an outside doctor to look at them,

1:25:59

they were very revealing.

1:26:00

Interviewer

And what happened

1:26:02

when you made those arguments, were did courts-

1:26:03

-

The government said, no, and the judge agreed with them.

1:26:06

She was not gonna intrude.

1:26:10

There was one judge who did,

1:26:11

we had still Kollar-Kotelly at that time

1:26:14

who basically gave way to the government,

1:26:17

even though the government consistently lied

1:26:19

about who was on,

1:26:22

'cause we were always dealing with the justice department.

1:26:26

The justice department would make representations

1:26:30

of what was happening, I'm sure based on what the people

1:26:33

down in Guantanamo told them, it was often and inaccurate.

1:26:35

I think it was wise because the government was doing it.

1:26:39

Kollar-Kotelly he seemed not to care.

1:26:43

Interviewer

And what was the government's argument

1:26:46

why you

1:26:47

-

Yeah,

there were no intrusion was warranted,

1:26:48

that they were in charge

1:26:52

and they could be trusted and they were doing it.

1:26:53

They didn't want the people on hunger strike

1:26:54

but they were on hunger strike and there.

1:26:57

Interviewer

And that the help was

1:26:59

they were save these men?

1:27:00

-

That they were safe and they would do what they could.

1:27:02

And there was no reason to intrude on that.

1:27:04

And no outside intervention was necessary.

1:27:06

Interviewer

I want to maybe go back to at another angle

1:27:11

but I also want to cover something you mentioned earlier

1:27:14

you said that you were able to succeed

1:27:15

in getting privileged conversations.

1:27:17

I had heard that all the conversations

1:27:18

that lawyers had with their clients were videotaped

1:27:21

and apparently they claim that audio tape

1:27:23

but I think even you, in another context,

1:27:26

believe that maybe they were audio taped as well.

1:27:29

So how privileged were these conversations?

1:27:32

-

Well, I don't know whether they were all videotaped.

1:27:36

There was a camera in the room, which we would allow

1:27:39

and as they said it was for reasons of danger and all that,

1:27:43

the court court allowed it.

1:27:47

The government specifically said

1:27:49

that for specific detainees,

1:27:51

all of whom happened to be my clients

1:27:55

that they were so dangerous

1:27:57

that they had to monitor the conversations

1:27:59

and eavesdrop on them.

1:28:02

We thought that very hard and the court ruled in our favor,

1:28:04

said that we had the right to privilege conversations

1:28:09

and that they couldn't eavesdrop.

1:28:12

Now, if they did, they were in violation of the court order.

1:28:14

They swore they didn't.

1:28:18

I have suspicions that at times they might have.

1:28:19

Interviewer

Why do you suspect that?

1:28:22

-

Not just because I'm a suspicious person.

1:28:26

I say, the interesting thing is

1:28:31

there was nothing worth listening to,

1:28:35

because we weren't preparing for hearings.

1:28:37

But there was one time when I felt the government

1:28:40

knew too quickly about a detainee being agitated verbally

1:28:47

when he didn't seem agitated looking at them.

1:28:57

Yes.

1:29:01

Now it wasn't any sort of substantive conversation

1:29:02

that they show knowledge of but they just seem very aware

1:29:07

that he was agitated.

1:29:10

So I came up, but I don't know.

1:29:14

I don't have any proof

1:29:16

that the government violated the court's order.

1:29:19

Interviewer

Just that being said for a minute.

1:29:23

Didn't you also want to believe

1:29:25

that your own conversations outside of Guantanamo

1:29:27

might've been-

1:29:31

-

Yes, that's different.

I have no doubt, I have no doubt,

1:29:34

I have no proof,

1:29:36

but I believe that my phones were monitored.

1:29:38

And somebody in the government whom I know I can't reveal.

1:29:43

I said, don't say anything on a phone

1:29:48

that you don't want anyone,

1:29:50

someone in the government to hear.

1:29:52

Interviewer

Was this a private phone

1:29:54

or just the office phone?

1:29:55

-

I don't know about my private phone

1:29:57

but certainly my office phone.

1:29:59

Interviewer

And did any resolution ever come from that

1:30:01

or you still don't say anything on your office phone?

1:30:03

-

No, I basically say everything.

1:30:08

I don't say anything that I think would be privilege

1:30:09

but I certainly don't hold back from comments.

1:30:13

Interviewer

I think it still might be true

1:30:15

or just don't know.

1:30:17

-

I don't know.

I'm sure it was at one time.

1:30:20

Interviewer

Why would they want to listen to you?

1:30:22

-

I don't want to draw attention,

1:30:26

but I think we were looked at as

1:30:27

in the sort of neurotic world or the government at the time.

1:30:35

I think that they thought we were sort of naive lawyers

1:30:40

who could be used as dupes

1:30:45

to pass on secrets from terrorists.

1:30:48

They assumed everyone was a terrorist,

1:30:51

everyone at Guantanamo must be a terrorist,

1:30:54

even though the facts were separate

1:30:56

and that we were probably naive about security issues

1:30:59

and would pass on things.

1:31:02

And they also thought that everything

1:31:04

could be a coded message.

1:31:06

And so it was sort of over stress.

1:31:08

Interviewer

When you said that Al Odah wanted to die,

1:31:17

did you have any understanding of people

1:31:20

who did try to commit suicide down here?

1:31:24

-

Yeah, none of my clients of the Kuwaitis did,

1:31:27

but I was told by others that,

1:31:34

we saw the facts right away,

1:31:38

I mean, people are trying to commit suicide.

1:31:41

It was extraordinary to me.

1:31:43

I mean, it still gets me angry and the press would say

1:31:45

these people are trying to commit suicide

1:31:49

as a form of warfare.

1:31:50

I mean, the people weren't outraged by this

1:31:51

or they say they're trying to commit suicide

1:31:53

because they're so frustrated.

1:31:56

Nobody in the press was pinging up how horrible this was,

1:31:58

what it was like to be kept there.

1:32:01

Anyway, I said when Fauzi decided to stop his hunger strike

1:32:04

he was put in a room next to a guy

1:32:11

who was put into the chair

1:32:14

and forced fed painfully and all that,

1:32:16

he was screaming and he said, Fouzi, don't do it.

1:32:18

You know, don't do it, this isn't worth it, go on.

1:32:20

And that guy committed suicide, that guy committed suicide.

1:32:23

Interviewer

Did Fouzi see him committed suicide?

1:32:28

-

No, but he was one of the guys

1:32:29

who I knew committed suicide, yeah.

1:32:32

Interviewer

I had heard

1:32:36

that you had heard probably two this spring

1:32:38

there was some talk that maybe they weren't suicides.

1:32:40

You don't know anything more about that.

1:32:42

-

You mean that they could have been murdered?

1:32:44

Interviewer

Yeah.

1:32:46

-

So, yeah, I don't know,

1:32:47

I mean, it's Scott Horton has written about that

1:32:49

and that's incredible, but I have no proof.

1:32:51

I mean, let me just say, as I said to somebody

1:32:56

if they were suicides, that's bad enough.

1:33:00

If they were murders, my God.

1:33:05

Can I just go back a bit.

1:33:07

Early on and now it's come out,

1:33:12

I remember I would talk to people about how bad things were

1:33:14

that people should have a right to a hearing.

1:33:20

And then I remember reading this six, seven years ago

1:33:22

about the three deaths in Bagram

1:33:27

and how the medical examiner

1:33:30

was investigating them as homicides.

1:33:32

And they've came out, one was a taxi, The Dark Side.

1:33:35

But I would say to people,

1:33:41

we murdered people,

1:33:44

people have been murdered during interrogations

1:33:46

and people would say, well, that can't be so.

1:33:48

If that's how it would be on the front

1:33:52

of the Washington Post in the New York Times.

1:33:53

The fact that there wasn't coverage

1:33:55

gave credence to the government's idea

1:33:58

that everything was okay.

1:34:00

It was just working in this netherworld world,

1:34:03

false facts that nobody wanted to look beyond.

1:34:08

Another reflection, I remember I was at a dinner

1:34:14

with these two young law professors,

1:34:20

this there 2004 or something

1:34:22

and I was amazed, something about,

1:34:25

they knew I'd been working on Guantanamo

1:34:29

and asked something about it.

1:34:31

And I looked at him and said, you know in my day,

1:34:33

the law schools would be going crazy about this.

1:34:36

We would be protesting, we'd be yelling,

1:34:39

this is wrong.

1:34:41

I said, why aren't you doing anything.

1:34:42

And looked to me and he said,

1:34:45

you know we've got two young children, we're afraid.

1:34:46

I said, and it reminded me of stories

1:34:52

I've heard about Nazi, Germany

1:34:54

when knew things were going on the wrong,

1:34:56

they were wrong but they thought maybe they're necessary

1:34:59

and we don't want to know about it.

1:35:02

That's what happened to the entire public it seems to me,

1:35:04

they just buried their head,

1:35:06

they didn't want to look beyond it,

1:35:08

they didn't want to know.

1:35:10

And that's still, still going on.

1:35:11

Interviewer

Why don't we just take a break

1:35:15

and sort of we changed the...

1:35:16

-

Okay, we're rolling,

1:35:18

-

I want to go back

to an earlier time because I hadn't heard

1:35:21

that it was hard finding translators

1:35:23

and I wonder if you could tell us how you found a translator

1:35:26

or more than one since you had more than one

1:35:28

and if it was hard and any issues with translators?

1:35:30

-

Well, actually for us it ended up not being hard.

1:35:35

I think that initially,

1:35:40

when people had their initial hearings in Guantanamo

1:35:46

the government had translators

1:35:49

who made enormous numbers of mistakes

1:35:53

and you can't even read the transcripts because people,

1:35:56

this person was saying one thing and he said another thing.

1:35:58

So it was crazy.

1:36:02

I mean, the government had some terrible translators.

1:36:02

We anticipated enormous problems.

1:36:06

And actually William Brown insisted

1:36:09

that the translators be vetted

1:36:12

because they had to have the right,

1:36:14

dialect within the Arabic language.

1:36:21

What we found though,

1:36:24

we ended up using this guy Ashraf,

1:36:26

maybe I shouldn't say his name, his last name

1:36:30

but you might want to interview him, he's terrific.

1:36:33

He's been to Guantanamo more than anyone.

1:36:35

And he told us, he's a very loosey goosey guy, very bright

1:36:37

but he's a Egyptian.

1:36:41

And he said that all Arabs will understand his dialect

1:36:42

because all the movies and music

1:36:47

are with the Egyptian dialect.

1:36:48

And in fact, we found that with so all of our guys

1:36:50

understood Ashraf perfectly.

1:36:54

A lot of our guys spoke well, some spoke perfect English

1:36:57

other spoke a little bit of English, some spoke none

1:37:01

but they all had no problem with Ashraf.

1:37:03

And so it was interesting.

1:37:06

Interviewer

Where did you find him.

1:37:08

-

Well, we had two guys to start

1:37:12

with Ashraf and John Konenia.

1:37:14

John was excellent, but he lived in California

1:37:17

and was very expensive to come back and forth.

1:37:19

Ashraf, how the heck did we find Ashraf?

1:37:22

I'm not sure I located him somewhere initially.

1:37:26

And he say, he's a tremendous personality and a great guy.

1:37:30

Doesn't stop talking, he's very brilliant

1:37:35

and very interesting guys become a very good friend.

1:37:40

Some of the detainees, for instance, Fouzi at the end,

1:37:47

suspected that maybe he was an agent for the U.S

1:37:51

so didn't want him to be there.

1:37:55

And I think some of the other detainees

1:37:57

I've heard were suspicious of translators for that reason,

1:38:02

but he seemed to work out very well.

1:38:05

Interviewer

And,

1:38:09

did the government ever try to block you

1:38:16

from visiting with the detainees,

1:38:19

could you describe how that happened?

1:38:22

-

Yes and I, and once again

1:38:24

I won't have the dates down correctly.

1:38:26

But actually there was a BBC reporter named John McManus

1:38:29

who called me very bright guy.

1:38:36

And he said, you know we're not allowed

1:38:39

to go interview the detainees, but you are.

1:38:41

He said, I'd like to give you a list of questions

1:38:45

you could ask them and then you could get their answers

1:38:48

and I could broadcast it like it's an interview.

1:38:51

I said, well, John, this is a very interesting thing

1:38:53

because this is what caused me to get fired

1:38:58

from the Kuwaitis.

1:39:00

I said, it's an interesting idea, I don't know,

1:39:02

but let me check it out with my people.

1:39:05

Now, at that time the Kuwaitis also had a press guy

1:39:09

who would really worked in coordination with me.

1:39:15

He was supposed to work in coordination

1:39:17

with suppose William Brown had fired the last press guy

1:39:20

because they had gotten in a fight,

1:39:24

because William Brown didn't understand

1:39:26

anything about press.

1:39:27

But then he hired, it was really extraordinary.

1:39:29

He hired a press guy without talking with me first

1:39:34

and they kept everything secret, it was crazy

1:39:37

because you couldn't have an uncoordinated campaign.

1:39:39

And I was the guy the press wanted to talk to.

1:39:41

So they hired it's it's LEVICK the LEVICK Firm

1:39:44

and it was a guy named Jean Grabowski there,

1:39:51

who was a nice guy as a press guy.

1:39:54

Good writer though.

1:39:57

And basically what he would do is

1:39:59

I would get all these inquiries from the press

1:40:02

and I would say to him, what do you think,

1:40:04

should I do it or are not doing?

1:40:05

So on this I called them up and I said,

1:40:11

look, Jean, what do you think?

1:40:13

He said, this is a brilliant idea.

1:40:15

This is an absolutely brilliant idea, it's groundbreaking.

1:40:17

He said, I have a few questions too.

1:40:20

I said, okay, I'll send them the stuff.

1:40:22

Well, in fact, you know, I go down to Guantanamo,

1:40:25

the questions the guy sent

1:40:28

were this questions you always ask anyway,

1:40:29

how are you, you know?

1:40:31

And so I went down to Guantanamo and interviewed Fouzi

1:40:33

and it was a very dramatic time

1:40:37

because it was right after he was broken

1:40:39

from the hunger strike.

1:40:41

So it was a very emotional time anyway.

1:40:43

And I talked extensively to Fouzi

1:40:45

and he wanted specifically to interview Fouzi

1:40:48

because it was the name Al Odah which was the lead

1:40:50

okay so you talked to them all.

1:40:52

But the procedures that we had worked out

1:40:54

with the government, as part of the case,

1:40:58

when we said we could talk to them

1:41:01

with unmonitored conversation

1:41:02

so we couldn't take anything out, they said and distributed

1:41:04

without first having it reviewed by the government

1:41:08

to see whether it was dangerous.

1:41:11

So the procedures where we would take notes

1:41:14

of our conversations

1:41:17

and I didn't take any John McManus's questions

1:41:19

and I just talked with Fouzi the way I do

1:41:21

but I wrote down his answers as I always do pretty much.

1:41:23

And when I left, then our notes are sent back to us

1:41:27

which takes two to three weeks.

1:41:31

And I told McManus this,

1:41:33

it'll take forever because we have this procedure,

1:41:34

took two or three weeks.

1:41:37

Then I sent them for clearance

1:41:38

to the reviewing procedure,

1:41:42

the government's reviewing procedure.

1:41:44

They came back to me reviewed

1:41:46

so there's nothing dangerous in it.

1:41:48

I often have I've often discussed things with the press,

1:41:51

I basically wrote up my questions and answers

1:41:54

and sent it to John McManus.

1:41:57

Who then and Grabowski and I sent them to Grabowski too.

1:41:59

Oh, he says, this is great, this is groundbreaking.

1:42:04

I then sent them to McManus who then

1:42:08

and I don't know whether this is journalistically right

1:42:10

but, he hired an actor or,

1:42:13

you know the BBC had an actor to play me

1:42:15

and to play Fouzi and they broadcast it on radio.

1:42:17

What parently, I wasn't part of the press committee

1:42:20

that was supposed to be Khaliz Al Odah and Grabowski,

1:42:23

I guess who would discussing,

1:42:28

Khalid had not known about this?

1:42:30

So it came out and BBC and Khalid was upset.

1:42:33

He said, I enter no one about this.

1:42:38

And he called Grabowski and Grabowski called me up and said,

1:42:39

oh, please don't know them,

1:42:43

I tell them I knew anything about him

1:42:44

'cause they'll fire me.

1:42:46

I said, Jean, this is just the sort of press

1:42:47

they wanted to get, you gotta be honest with them.

1:42:50

Well, anyway, what happened after that

1:42:53

is first the government wrote something saying

1:42:57

you can't go to Guantanamo again

1:42:59

because you violated the rules.

1:43:01

I say, what rules have we violated?

1:43:03

It was so absurd.

1:43:06

So, but we got in a fight with the government.

1:43:07

Of course we sent it to the client

1:43:11

and then the government eventually backed down

1:43:13

because we had an you know, everything had been cleared,

1:43:16

and it was a good press move.

1:43:21

But then the, so the government backed down.

1:43:23

I think I did agree with the government

1:43:30

that I wouldn't do it again

1:43:32

without telling them in advance that I was gonna do it.

1:43:36

But I said, I have the absolute right to do it

1:43:39

so inform you next time.

1:43:41

So they backed down then the client came and fired us.

1:43:42

-

Well, why did Grabowski ever own up to the fact that?

1:43:46

-

I don't know.

1:43:48

Interviewer

And why did they fire you then?

1:43:50

-

I heard, you know, they came, Abdul Rahman came

1:43:54

he was very nice to do it.

1:43:58

He said, we decide that to replace you as primary counsel.

1:44:00

He said that he made some hints, he said,

1:44:05

this was very tough for Khalid and me.

1:44:07

Thank you, you were there at the very beginning.

1:44:15

He said something like,

1:44:17

I know that William Brown is difficult to work with

1:44:18

but he's essential for us.

1:44:21

And then I heard from the ambassador

1:44:23

who was very upset about it, Maryland, he said that

1:44:27

he asked Khalid why was this happening?

1:44:30

He said, because I had run wild, yeah so.

1:44:32

Interviewer

So Tom, my understanding is that

1:44:36

you said it earlier that you were the lawyer

1:44:39

for the detainees and for the families.

1:44:42

So the detainees aren't they the ones

1:44:46

who would make the decisions as

1:44:49

to whether you would interview them?

1:44:50

-

That's it it's an interesting issue because,

1:44:52

I felt at the time, and this was sort of a conflict,

1:45:01

I felt at the time that making an issue

1:45:07

between the detainees and their families

1:45:10

would not be in their best interests.

1:45:14

So we did this all very nicely

1:45:18

although then the Kuwaitis got,

1:45:20

the family got sort of insulting in ways.

1:45:23

I said, let me give you recommendations, what should happen

1:45:25

Abdul Rahman said, yes, all of these.

1:45:28

And then they did none of them and William Brown was nasty.

1:45:30

But I did say, look, you can't just put a new lawyer

1:45:35

in with these guys, they'll never talk to them.

1:45:39

And so I said, I need to go down and tell them to shift

1:45:43

and then I agree with it.

1:45:50

And the reason I did that

1:45:52

and I don't know whether it was a right thing to do

1:45:53

because honestly, as much as I like the new lawyer,

1:45:55

he is a nice guy, I don't think he's done as good a job.

1:45:58

And I think they were better worse off in certain respects.

1:46:04

So, but it was a difficult thing.

1:46:07

So I went down with him and introduced him to them,

1:46:09

told them he was an excellent lawyer

1:46:13

that the shift had been made

1:46:14

and that, I hope they go along with it.

1:46:16

And that, you know it's interesting as I said,

1:46:19

Fayez al Kandari he said, look, I love you

1:46:24

but the legal system is a joke

1:46:27

and I'm just doing it for my parents,

1:46:29

which was a sort of mature way.

1:46:30

Fouzi Al Odah was furious.

1:46:32

He said, this is a horrible mistake.

1:46:36

And for two years, he didn't talk with Cynamon,

1:46:38

and with a new and talk with him.

1:46:41

Interviewer

Have you felt that was the best thing

1:46:46

for you to not get the middle of it?

1:46:47

-

I thought it was not a good thing for the families

1:46:50

and the detainees to suddenly be having a fight.

1:46:53

If Cynamon was competent, he could do it.

1:46:56

The real thing that concerned me

1:47:00

is we were still sort of the lead lawyers

1:47:02

in taking the legal issues before the courts,

1:47:08

and the Al Odah case had then become 15 cases.

1:47:12

And we were the lead lawyers.

1:47:18

We were the ones who argued to the court of appeals.

1:47:20

We had a brief that was due.

1:47:22

And really what I did I called Michael Ratner,

1:47:25

who was still I think Michael is technically retired

1:47:30

from C.C.R but he had gone into the other lawyers

1:47:33

in and he said, oh my God well then we're hiring you

1:47:37

for the other cases to remain as lead lawyer.

1:47:40

So that's what I did.

1:47:43

And I just stayed as lead lawyer on all the cases

1:47:45

but I didn't represent lead lawyer

1:47:48

for all the Al Odah cases.

1:47:50

The Boumediene cases were two cases

1:47:52

that have lost before Leon,

1:47:55

they were represented by Walmart Corporate.

1:47:56

We had all the other cases.

1:47:59

And so I remained as we get a lawyer.

1:48:00

Interviewer

So you still did the theoretical

1:48:03

and legal work.

1:48:07

-

Yes all the legal work,

1:48:08

and wrote the briefs did that, but then yeah.

1:48:09

Interviewer

And they still involved in that today?

1:48:11

-

No what happened after we won the Boumediene case.

1:48:13

Well, after we won the Boumediene case,

1:48:20

they all had the right to habeas corpus,

1:48:26

and they have individual cases.

1:48:30

I was initially called in,

1:48:33

the chief judge of the district court

1:48:39

had an a meeting initially for lawyers

1:48:41

to see how to go forward.

1:48:44

And some of the lawyers were so hostile to me in the way

1:48:47

that I decided to look,

1:48:56

you all have your individual cases now,

1:48:58

so I'm not involved overall, they have individual cases.

1:49:03

Interviewer

So it sounds to me

1:49:07

like there's a new generation of lawyers post Rasul

1:49:08

or maybe even post come down or post Boumediene?

1:49:12

-

Well, they've sort of scattered more, right,

1:49:17

I'd say they're more scattered

1:49:19

and the issue was do they get a right to habeas corpus

1:49:21

and they haven't.

1:49:28

I also arranged and went to a lot of meetings

1:49:30

with the Obama administration for a number of lawyers.

1:49:33

And I was involved in those,

1:49:37

but I decided at the end,

1:49:39

there's not much really I could do,

1:49:40

people have their individual cases with individual facts.

1:49:44

Interviewer

It seems like you were groundbreaking

1:49:48

but then people came, you moved on.

1:49:50

-

Well, I mean, when we look at it,

1:49:54

the issue that people have a right to a fair hearing

1:49:59

has been established, now individuals have hearings.

1:50:02

Some of those are handled well, some aren't handled well

1:50:06

but that's what individual lawyers do unfortunately,

1:50:10

I've continued involved the course to the extent I can

1:50:15

and trying to,

1:50:19

look people when habeas hearings

1:50:25

and they're stuck at at Guantanamo,

1:50:27

Congress has passed laws saying,

1:50:29

anyone who's in Guantanamo, innocent or not,

1:50:31

can't come to the United States

1:50:33

and they can't go to other countries.

1:50:35

I've tried to stay involved on that

1:50:38

but it's more difficult because it's hard to get a voice.

1:50:41

It's hard to get a voice within the Obama administration.

1:50:44

At the beginning of the Obama administration.

1:50:49

You know, I worked with Greg Craig

1:50:52

to help him on the first orders

1:50:55

before the inauguration

1:50:58

and then efforts to get the first orders

1:50:59

to close Guantanamo.

1:51:01

I worked with him to encourage a process

1:51:03

to resettle some of the people here,

1:51:07

I think he was fired because of that.

1:51:10

So I don't have the same in with the Obama administration

1:51:13

that I had before.

1:51:17

It's very frustrating and hard to get a voice.

1:51:18

Interviewer

What's your thinking about that,

1:51:22

why do you think that

1:51:24

if Craig was trying to bring people to America

1:51:26

and maybe close bond trying and make a difference,

1:51:30

what happened?

1:51:35

-

As I was saying, it's more difficult for me now

1:51:39

than it was in the Bush administration,

1:51:43

because I saw something that we could fight clearly.

1:51:45

And I felt it was a struggle and it would be over.

1:51:50

I don't understand what's happened

1:51:54

to the Obama administration.

1:51:56

I mean, I can speculate, I supported Obama early.

1:51:57

And the reason I did was he was so firm

1:52:02

and supported habeas corpus.

1:52:07

I also was very involved,

1:52:11

some would say led the fight in congress on habeas Corpus.

1:52:13

And I was extraordinarily impressed by him.

1:52:16

I met with him and some other lawyers from Chicago

1:52:20

in his office.

1:52:23

This was when the MCA was up first

1:52:24

it was a detainee treatment act that Graham did.

1:52:28

Then that was re we won an Hom than that

1:52:31

it didn't apply to pending cases then in the MCA,

1:52:35

they applied it to pending cases.

1:52:37

And Obama looked at us and he said, this is wrong.

1:52:39

I'm your guy, I will work with you.

1:52:43

You can use my office as the lobby.

1:52:45

And we did.

1:52:48

He was absolutely behind us.

1:52:49

Through the campaign, as I said, I'm friendly with Tony Lake

1:52:51

who was a chief foreign policy advisor,

1:52:55

I wrote policy papers on Guantanamo detainee treatment.

1:52:57

They adopted them all.

1:53:02

I mean, some of the lines that you'll see Obama made,

1:53:04

you'll see from our briefs.

1:53:08

This line that we're different from other nations,

1:53:10

we believe in these things right from the initial brief,

1:53:12

the idea that we are stronger because of our principles,

1:53:16

we sacrifice our principles,

1:53:19

we sacrifice our strength in what we believe in,

1:53:22

the idea we yes, we stand up for habeas Corpus.

1:53:26

The extraordinary thing to me is,

1:53:29

I think Obama believed in those things,

1:53:31

probably does believe in them.

1:53:33

Extraordinary thing is usually in campaigns

1:53:35

people are wimpy and then they do things after the campaign.

1:53:38

He was strong in the campaigns and won on those things

1:53:41

and now he's abandoned them.

1:53:43

I mean, I can blame it on Rahm Emanuel, who has said.

1:53:45

I mean, Greg Craig tells the story

1:53:49

that Rahm Emanuel said,

1:53:52

"I have to bring down two 747s healthcare

1:53:54

"and the war in Afghanistan and Guantanamo,

1:53:59

"and those things are like a flock of geese

1:54:02

"that get in the way I'm not gonna pass for those."

1:54:03

That's the view, little small thinking,

1:54:07

it's not that we're radical liberals

1:54:13

on everything or left lingers,

1:54:17

but he was out to regenerate this country

1:54:19

and what was wrong with it?

1:54:23

This was in essential central part of it.

1:54:24

And I think he's given,

1:54:26

so it's stupid really.

1:54:29

Because he knows it was as a matter of foreign policy,

1:54:30

Guantanamo continues to this day

1:54:33

to hurt us very badly abroad but he's boxed himself in now.

1:54:35

He can't close it

1:54:39

because he's given way to this Republican right

1:54:40

to compromise and other issues so he's caught.

1:54:44

I mean, I'll give you another example.

1:54:46

I mean, on day one they announced the closing of Guantanamo

1:54:48

Dick Cheney went to the airwaves,

1:54:53

do you remember right away,

1:54:56

and he said, this is crazy,

1:54:56

this is jeopardizing our security,

1:54:58

the people at Guantanamo,

1:55:00

those remaining are the worst of the worst,

1:55:01

they're all trained killers.

1:55:03

Now, nobody said anything.

1:55:05

By at the time Chaney left office,

1:55:08

60 of the people at Guantanamo had already been cleared

1:55:11

by his administration as innocent people wrongly out.

1:55:14

Since that time there had been one,

1:55:17

now there are about 50 habeas cases,

1:55:19

80% the court said these people are innocent.

1:55:21

Nobody said that publicly.

1:55:24

I tried to say it or tried to publish letters

1:55:26

but nobody sent it.

1:55:28

And so as a result by leaving the airwaves free,

1:55:31

by seeding the the facts to Cheney,

1:55:34

people started believing it, nobody took it on.

1:55:38

And a result now,

1:55:42

the majority is not for closing Guantanamo

1:55:44

so we're boxed in and which,

1:55:46

I don't know what the hell happened.

1:55:48

Interviewer

And Congress didn't Congress also

1:55:49

then quickly passed legislation

1:55:51

to make sure that I'm knowing.

1:55:54

-

Yes and it was reinforced recently.

1:55:56

No one, I mean, it's so disgraceful,

1:55:59

innocent people held at Guantanamo for nine years

1:56:02

can't resettle in the United States.

1:56:05

How shameful!

1:56:07

Just for us to say they've seeded the airwaves

1:56:08

to crazy people and it's very, very frustrating,

1:56:12

very frustrating.

1:56:16

Interviewer

So did you see anything positive at all

1:56:17

going forward?

1:56:20

-

I'm very disappointed in the Obama administration,

1:56:29

not in details, I mean, they're 1000% better than Bush,

1:56:33

they're doing good work,

1:56:41

but they haven't shown the leadership it's necessary.

1:56:43

And I see the country meandering back and forth.

1:56:48

I mean, my God, isn't it extraordinary

1:56:53

that Republicans make take control of Congress

1:56:55

after what has happened?

1:56:58

It's a lack of leadership.

1:56:59

Interviewer

So just a couple more things to cover,

1:57:05

just generally and then I want to go back to the present,

1:57:10

but I kind of want to just ask,

1:57:14

I kind of asked before, like I want to go back to it

1:57:16

when you were Guantánamo, could you observe,

1:57:18

besides meeting the detainees

1:57:21

could you observe other things and you,

1:57:23

is there anything there that struck you with

1:57:26

just you have innovations over time

1:57:27

as you went down there and-

1:57:29

-

Yeah, I mean there are funny stories about Guantánamo.

1:57:31

When you you go into Camp Echo

1:57:37

where the prisoners at that time were held for interviews,

1:57:40

Camp Echo is right on the sea.

1:57:46

As I said, it's got a series of tall fences around it,

1:57:50

covered with green mesh, with razor wire on top.

1:57:54

And you walk in and in-between area

1:57:58

and then you're cleared for security

1:58:01

and then you walk through more areas

1:58:03

and you go into the prison, which is a courtyard.

1:58:04

Courtyard has all these little huts,

1:58:08

which have basically two combination cell

1:58:10

interrogation rooms in each of them.

1:58:13

And the way it changed,

1:58:16

I'll tell you a funny story about it.

1:58:18

As I told you, the first time we went down there

1:58:20

we only had the name's gonna give the numbers.

1:58:22

It was just silly.

1:58:24

But when we first went down there, it's all pea gravel.

1:58:27

So you're crunching in in this dusty pea gravel,

1:58:30

normally very hot.

1:58:33

When we first went down there,

1:58:35

they drew sort of pathway lines

1:58:37

on the outskirts into each hut.

1:58:41

And I said, why was that?

1:58:44

And the guard said, why we had nothing to do

1:58:46

so the guy in charge said, well, let's follow these paths.

1:58:48

Well, we came down, as you go down later,

1:58:51

you'd see that they had become more buildup

1:58:54

and more formalized and honest to God, this is true.

1:58:57

I said to the guy, well, what are these for?

1:59:00

And he said to me, I can't tell you it's classified.

1:59:02

(laughs)

1:59:05

No it's just so difficult, I said, they need to know.

1:59:06

I mean, I tell you the different reactions,

1:59:08

I mean, I had a moving experience with one guard.

1:59:10

I mean, some guards were abrasive, most were very neutral.

1:59:15

I mean, one was trying to be rude

1:59:20

to us to show how tough he was.

1:59:22

I almost got in a fist fight with him

1:59:26

but there was one guard who took me aside

1:59:28

who just said, I'm embarrassed to be here.

1:59:32

He said, I feel it's wrong if we treat people this way,

1:59:38

how will we, we be treated, how would I be treated?

1:59:45

He said, how would I be treated

1:59:48

and my brother would be treated

1:59:49

if we were captured somewhere?

1:59:51

He said, I just thinks this is wrong.

1:59:52

And I was moving to me.

1:59:54

Interviewer

Have you heard of God's

1:59:59

being nice to some of your clients?

2:00:01

-

I did hear, again, Fouzi Al Odah,

2:00:02

in the interview that was broadcast on BBC.

2:00:09

I said to Fouzi, how were you being treated?

2:00:14

And he said, look, some of these guys are very nice,

2:00:18

they're nice guys.

2:00:22

He said, but generally I know when he said this

2:00:25

but he said, generally we're treated like shit.

2:00:30

And you said, you got to understand it though.

2:00:32

These are young kids,

2:00:34

they're told we're terrorists.

2:00:36

So whenever anything bad happens in the United States

2:00:38

they're nasty to us or mean to us.

2:00:41

I said, how would you treat somebody

2:00:43

if you thought he was a terrorist?

2:00:44

He said, I'm not a terrorist,

2:00:45

I can't show anyone, I'm not a terrorist,

2:00:46

but that's what they think we are.

2:00:48

So it's just a terrible environment to be in constantly.

2:00:49

You know what?

2:00:56

I'm tell you another story about Guantanamo.

2:00:57

It's strange how the government

2:00:58

they were just such pains in the ass.

2:01:01

Used to be we would go to in Guantanamo.

2:01:03

Now, I think they've improved things again

2:01:06

since I was there, but we go to Guantanamo

2:01:08

and we'd have a lunch break.

2:01:12

We need a forced lunch break.

2:01:13

And during the lunch break, there's a library in Guantanamo,

2:01:15

little library next to the PX

2:01:20

and you can go in there and you can get on the internet

2:01:22

and you can check your emails.

2:01:26

And people go in there,

2:01:29

you don't Guantanamo is populated people work there,

2:01:30

are basically Jamaicans and other people

2:01:32

who they pay very little money

2:01:35

and they all go in the library and everything

2:01:36

there an order coming down

2:01:38

the lawyers can't use the library here.

2:01:40

I'm an American citizen,

2:01:42

what's secret security clearance,

2:01:44

I mean, I've had top secret security guards

2:01:46

and I can't use the library when everybody's going.

2:01:48

It was so stupid,

2:01:52

it was so stupid the way they treated you, you know, anyway.

2:01:53

Interviewer

Did you want to talk to any of the Jamaicans

2:02:00

or the other help with-

2:02:01

-

Filipinos

2:02:03

-

Filipinos

-

Oh sure.

2:02:04

Interviewer

Did they say anything (indistinct)

2:02:05

-

No, I mean to them, they've got a job down there.

2:02:08

You know, we're just a pain.

2:02:10

And also it used to be when we first went down there

2:02:13

on the side where the prison is,

2:02:16

there are restaurants and everything that people go to

2:02:19

and we were allowed to go to the restaurants at night

2:02:21

and then go back, we stayed on the other side

2:02:23

the bachelor's officer's quarters.

2:02:26

Then they prohibited us from doing that, because-

2:02:28

Interviewer

Why, why do you think?

2:02:32

-

Well, there was never any reason given

2:02:33

but the courts would never intrude on it.

2:02:36

There were sorting hearing things

2:02:38

and you often, I don't know.

2:02:40

When I went down there you've got to understand,

2:02:44

our people were not only held there without a hearing.

2:02:47

They were held in a cell that is, five by 10 or so,

2:02:51

with nothing to read, nothing to read.

2:03:02

I mean, you think being there year after year

2:03:05

with nothing to read,

2:03:07

we weren't allowed to bring them papers or anything

2:03:08

'cause they shouldn't know about current event.

2:03:11

They weren't allowed to have books.

2:03:12

And I remember it was extraordinary,

2:03:14

I don't know what I do if I couldn't read

2:03:16

or couldn't do something so you just sit there on itself.

2:03:18

I mean, it was horrible.

2:03:21

And I remember coming out

2:03:22

and saying to the guy who was our liaison

2:03:25

or illegal opposite they're not allowed to (indistinct),

2:03:28

I said, yes they are.

2:03:30

And they're not, they're not,

2:03:31

they couldn't go in.

2:03:33

Eventually they would give them something

2:03:34

and we would appeal to the court

2:03:36

and he's a court wouldn't do anything about it?

2:03:38

Simply wanting to enter intrigued.

2:03:39

It was terrible, it's terrible.

2:03:41

I would break, I mean, you know, that would break me.

2:03:44

Interviewer

Well, isolation,

2:03:47

you're saying the complete isolation-

2:03:48

-

The isolation of it, I mean,

2:03:50

and even though most of them were in cells

2:03:51

where there's thick wire mesh between somebody them

2:03:54

and somebody else on the other side,

2:03:58

somewhere in concrete cells were really in isolation.

2:03:59

But even with the mesh it's isolation,

2:04:02

they couldn't do anything,

2:04:05

and sitting there not being able to do anything.

2:04:06

So horrible.

2:04:08

Interviewer

Well, people describe Guantanamo

2:04:10

as more of a psychological prison

2:04:12

and that's one of the ways they broke people down

2:04:14

and so you-

2:04:17

-

I don't know whether their intent was to break them down.

2:04:21

I think they knew six, seven years ago

2:04:24

the 90% of the people in there were nothing.

2:04:29

I mean, you know, it wasn't worth breaking them down.

2:04:32

I had one client,

2:04:35

this guy who was a young nothing.

2:04:38

And they would keep having these women taunt him.

2:04:41

I said, for what?

2:04:45

I mean, this guy could have no more useful.

2:04:46

I mean, even if he were connected with the Taliban on OCA

2:04:48

he was a 23 year old, nothing.

2:04:51

I mean, I don't know whether it was stupidity

2:04:54

or absolute neglect or because if you had a conscious way

2:04:58

why were you breaking these people down?

2:05:03

There's no reason these weren't, none of these guys

2:05:05

even if they were a little bit bad.

2:05:09

And I don't think in my 12, I doubt whether any of them

2:05:12

but they were not leaders, they simply couldn't be.

2:05:17

It was just almost caught

2:05:22

I told the story in Jane Meyer has an inner book

2:05:27

about the CIA sending this fellow to Guantanamo

2:05:30

was her chief Arabic specialist.

2:05:33

And it's just an extraordinary thing

2:05:35

of everything going wrong.

2:05:37

The reason people were in Guantanamo,

2:05:39

they had never had a hearing in the field,

2:05:41

article five that you need for conventions,

2:05:44

198 of our regulation says,

2:05:48

if you have doubt you have a hearing in the field.

2:05:50

We did that in other conflicts, we didn't do it here.

2:05:52

The military wanted to do it, the White House next to them.

2:05:55

So as a result, everybody was sent to Guantanamo.

2:05:59

Then they get down there

2:06:04

and they start not getting information.

2:06:05

So they start breaking them

2:06:07

down and putting the screws to them,

2:06:10

sleep deprivation, walking and doing all this stuff.

2:06:11

They're not getting any information.

2:06:13

The CIA says, what's going on here.

2:06:15

They send their top Arabic specialists down there

2:06:18

and he interviews them and says, you got the wrong guys.

2:06:21

These guys are nothing.

2:06:24

That report goes into the White House

2:06:26

and they say, "Ignore it."

2:06:28

It was as if it was almost like enforced stupidity

2:06:31

to be part of a political campaign.

2:06:36

I mean I can't, it's almost...

2:06:38

And then people argue ideology,

2:06:42

we have a right to treat them any way we want

2:06:44

we have a right not to, but these guys are nothing.

2:06:47

It's stupid, just stupid,

2:06:50

more than anything, it is stupid.

2:06:53

Interviewer

Thank you pretty much summarize,

2:06:59

as we close but I'm going to ask it anyway.

2:07:00

Looking back, I mean, what can you tell people

2:07:05

who watch this 20 years from now,

2:07:11

about what we've experienced

2:07:13

what we lived through and you know?

2:07:15

-

Well, I think

2:07:18

this was a time of extraordinary hysteria

2:07:22

caused by an attack on our country.

2:07:30

And as a result, we lost our way.

2:07:35

We lost our way and by sticking to our principles.

2:07:40

What scares me about it

2:07:44

is that we still have lost our way,

2:07:47

we've sacrificed this too,

2:07:50

even things like healthcare or little things like that.

2:07:52

And what scares me is we continue to do this.

2:07:55

It seems to me, the lesson should be

2:07:59

whenever there's bouts of hysteria consume our country,

2:08:03

somehow the lesson should be

2:08:09

rather than, oh those people were stupid last time

2:08:11

and the time before it should be, when this happens

2:08:14

the most important thing you could do

2:08:19

is stick to your fundamental principles

2:08:21

because they are your greatest strength in these times.

2:08:24

There's no doubt we've been made weaker around the world

2:08:27

by abandoning our principles of fairness and justice.

2:08:32

We've been made weaker.

2:08:37

And whenever these bounds come you're not made stronger

2:08:39

by being tough and shitty and abandoning this,

2:08:43

stick to your principles.

2:08:47

I wish somebody could get that.

2:08:49

Do we learn nothing from the McCarthy era?

2:08:51

Will we learn nothing from this,

2:08:53

we should learn stick to your principles,

2:08:55

don't abandon them.

2:08:56

-

Thank you, Tom, that's exactly what I think (indistinct).

2:08:59

-

Well that's right, well I'll think about it

2:09:03

what should we do.

2:09:04

Interviewer

Yeah, thank you so much,

2:09:06

it was one of those absolutely excellent

2:09:06

interviews we've had.

2:09:08

-

Oh no, my pleasure,

my pleasure.

2:09:10

Recorder

Could we just record 20 seconds

2:09:11

of room tone quickly?

2:09:12

-

Of what?

Recorder

So were trying to record sound of the room.

2:09:14

So just be silent for 20 seconds (indistinct).

2:09:16

-

Okay great, thanks.

2:09:39

-

Okay.

Wilner, Tom - Interview master file

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